October 1, 1998
VIA FIRST CLASS MAIL
Robert Kirkpatrick
October 1, 1998
Page 1
Robert Kirkpatrick
9352 Candlelight St.
Apple Valley, CA 92308
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Hoffa Unity Slate
c/o Patrick J. Szymanski, Esq.
Baptiste & Wilder, P.C.
1150 Connecticut Avenue, N.W.
Washington, DC 20036
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
Ken Mee
42356 Greenbrier Park Drive
Fremont, CA 94538
Tom Leedham
c/o Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
Arthur Z. Schwartz, Esq.
Kennedy Schwartz & Cure, PC
113 University Place
New York, NY 10003
Diana D. Halpenny, Esq.
San Juan Unified School District
3738 Walnut Avenue
Carmichael, CA 95608
Ken Paff
Teamsters for a Democratic Union
7435 Michigan Avenue
Detroit, MI 48210
Paul Alan Levy, Esq.
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
Robert Kirkpatrick
October 1, 1998
Page 1
Re: Election Office Case No. PR-094-TDU-PNW
Gentlepersons:
Robert Kirkpatrick
October 1, 1998
Page 1
Robert Kirkpatrick, a member of Local Union 70, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Ken Mee, an International vice-president and candidate for re-election on the Tom Leedham “Rank and File Power” Slate (“Leedham Slate”), the “Reform Slate” of candidates,[1] Teamsters for a Democratic Union (“TDU”) and the San Juan Unified School District (“SJSD”). The protester alleges that on April 18, 1998, the Sacramento Chapters of TDU conducted a campaign related meeting on school district premises. The protester further alleges that campaign literature, including copies of the TDU publication, Convoy Dispatch have been routinely posted on school district premises.
Mr. Mee and TDU deny any violation of the Rules. In addition, TDU argues that the protest is untimely.
The protest was investigated by Adjunct Regional Coordinator Paige Keys.
- Timeliness of the Protest
The protester filed the protest on May 6, 1998 alleging violations at a meeting which occurred on April 18, 1996. Article XIV, Section 2(b) of the Rules requires protesters to file “within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested.” The short time limits are important to ensure that alleged violations of the Rules are quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy if a violation is found. “Nevertheless, the Election Officer has not treated time limits as an absolute jurisdictional requirement, but rather as a prudential restriction.” Hoffa, P-788-IBT-EOH (June 18, 1996); Blake, P-712-LU630-CLA (April 29, 1996).
In prior cases, the Election Officer has waived the timeliness requirements of the Rules if the protest was not excessively untimely. The protester’s first knowledge of the facts supporting the protest was obtained on the date the protest was filed. In these circumstances, the Election Officer determines that this is a proper case for the waiver of the timeliness requirements of the Rules at Article XIV, Section 2(b).
II. TDU Meeting
Robert Kirkpatrick
October 1, 1998
Page 1
On April 18, 1998, the Sacramento Chapter of TDU held a meeting in the drivers’ lounge of the SJSD. The protester did not attend the meeting. Mr. Mee is a vice-president of TDU and was asked to attend. He states that he attends TDU meetings as often as he can. Mr. Mee states that the meeting was about the general status of the local TDU chapter and there was no campaign content. The election of International officers was referred to only as a report as to the timetable and the deadline for supplemental nominations and slates. Grayson Hare, who chaired the meeting, agrees with Mr. Mee that there was no campaigning at the meeting. Mr. Hare stated that most of the meeting related to union business involving the San Juan School District.
The protester contends that the SJSD facilities were fraudulently obtained because
Mr. Mee claimed that the meeting was for union business, but in actuality the meeting was a campaign meeting for Mr. Mee and the “Reform Slate.” The protester offered no evidence that the meeting had any campaign content. The investigation disclosed that Mr. Hare scheduled the meeting. Mr. Hare claims that it is SJSD policy that employees are allowed to use the facilities free of charge as long as a District employee is present. SJSD officials dispute Mr. Hare’s representation of the rule on the use of its facilities and state that the use is only for work-related business.
The Rules only regulate conduct that relates to the International officer rerun election. While no member or candidate can utilize employer premises for campaign purposes, other than that access permitted to the employer’s employee parking lot under Article VIII, Section 11(e) or to other areas of the employer premises based upon a pre-existing right under
Article VIII, Section 11(d), here there is no evidence to support the protester’s contention that the meeting was a campaign event or that it contained campaign content. Therefore, even if the meeting premises were fraudulently obtained, that is an issue that must be resolved between SJSD and TDU, and not within the purview of the Election Officer.
III. Material Posted on SJSD Bulletin Boards
Mr. Kirkpatrick alleges that TDU posted literature on the incorrect bulletin board, because it was posted on the union bulletin board instead of the school district bulletin board. He also contends that it was posted without asking permission of the labor relations department. Mr. Hare denies that materials were improperly posted. He states there are two bulletin boards, one is for union business and the other is a general purpose bulletin board. He claims that any literature has been posted on the general purpose bulletin board.
The protester presented no evidence to support his contention. SJSD agreed that there are two bulletin boards, one of which contains general postings.
Based on the lack of evidence, the Election Officer denies this allegation. Moreover, the protester is not asserting that there is not equal access to the bulletin boards, therefore, even if a violation were shown, it would be di minimus.
Accordingly, the protest is DENIED.
Robert Kirkpatrick
October 1, 1998
Page 1
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
MGC:chh
cc: Kenneth Conboy, Election Appeals Master
Paige Keys, Adjunct Regional Coordinator
[1]Since the protest was filed, the charged party identified as the “Reform Slate” became the Leedham Slate.