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Office of the Election Supervisor for the International Brotherhood of Teamsters

October 21, 1998




Robert Kirkpatrick

October 21, 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 21, 1998

Page 1



Re: Election Office Case No. PR-094-TDU-PNW

                                      Reissued Decision




Robert Kirkpatrick

October 21, 1998

Page 1


Robert Kirkpatrick, a member of Local Union 70, James P. Hoffa, a candidate for general president and the Hoffa Unity Slate 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 protesters alleged that the Sacramento Chapter of TDU improperly used SJSD property to campaign.  The protesters further alleged that campaign literature, including copies of the TDU publication Convoy Dispatch, have been routinely posted on SJSD 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. On October 1, 1998, the Election Officer issued an initial decision denying the protest.  On October 5, 1998, the Election Officer requested remand of the decision for further investigation and reconsideration.


  1. 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 is not excessively untimely and where the election process will benefit by a resolution on the merits.  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


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.  The flyer for the meeting read, in pertinent part, as follows:




Robert Kirkpatrick

October 21, 1998

Page 1






Saturday, April 18, 3 -5 p.m.

San Juan Unified School District Office

3728 Walnut Avenue, Carmichael





International Vice-President Ken Mees Report

The Election Time Table

The Reform Slate Members

Ron Careys Situation

Getting out the Vote in Our Locals


Prop. 226 - Preventing Unions From Being Politically Active - Vote NO!!


The bottom of the flyer stated that the meeting would be sponsored by the Sacramento TDU Chapter.


Mr. Ream currently serves as chairman of the Sacramento TDU Chapter and acted in that capacity in April of 1998.  Grayson Hare, another TDU member, was the chairperson at the protested meeting.  Mr. Ream stated that, at the time the meeting was scheduled, the Sacramento Chapter of TDU was new and not very well organized.


There is no evidence to indicate who prepared the flyer.  The evidence showed that the flyer had been posted on the TDU web site and the Election Officers representative attempted to e-mail the address listed.  No response was received. Mr. Mee and Mr. Ream stated that they assumed that the flyer was prepared well before the meeting because it refers to events that had not yet occurred.[2]   There was also no evidence that any union funds were utilized to produce or distribute the flyer.


Robert Kirkpatrick

October 21, 1998

Page 1


Mr. Mee, who also serves as vice-president of TDU, attended the meeting of April 18, 1998.  Mr. Mee stated that the subject of the meeting was the general status of the local TDU chapter.  According to Mr. Mee, there was a general report on the election, but it centered on the fact that there was no slate, no schedule, and nobody knew what was going to happen next.  There were no minutes of the meeting.  Mr. Mee also stated that the election  of International officers was referred to only as to the timetable and the deadline for supplemental nominations and slates. Mr. Hare and Mr. Ream also stated that no campaign activity took place at the meeting.


The protester contends that the SJSD facilities were fraudulently obtained on the misrepresentation that the meeting was for union business.  The protester offered no evidence that any campaign activity occurred at the meeting and none was otherwise disclosed.


While the flyer indicates that the purpose of the meeting was, at least in part, to engage in campaign activity, the evidence fails to establish that any campaigning took place.  Unless prepared and distributed using union resources, flyers advertising campaign activity do not violate the RulesPacheco, P-578-LU222-RMT (March 18, 1996) (risk of future improper use of membership information by local union officers does not violate rules; specific actions may be raised and tested by protest when they occur); Hill, P-409-LU89-SCE (March 13, 1996) (potential for future campaigning at union meetings does not state violation; protest may be filed if improper campaigning occurs). As the Election Appeals Master has stated in affirming the Election Officers decision in Hoffa, P-996-LU436-CLE (September 23, 1996), affd, 96 - Elec. App. - 245 (KC) (October 3, 1996), “The Election Officer properly denied the protest in the absence of proof of actual impermissible campaigning.”


The Rules only regulate conduct that relates to the International officer Rerun Election.  While no member or candidate may utilize employer premises for campaign purposes unless a pre-existing right exists, the Rules are not violated when access is obtained for other reasons or purposes.  See, Article VIII, Section 11(e) for access to employer parking lots and Article VIII, Section 11(d) for access to other areas of the employer premises based upon a pre-existing right. 


Here, there is no evidence to support the protesters contention that the meeting was a campaign event or that any person engaged in campaign activity.  Therefore, even if the meeting premises were fraudulently obtained, that is an issue that must be resolved between SJSD and TDU.  It is not within the authority of the Election Officer.  There is no evidence that SJSD violated the Rules


III.               Material Posted on SJSD Bulletin Boards


Robert Kirkpatrick

October 21, 1998

Page 1


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.


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.






Michael G. Cherkasky

Election Officer




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.

[2] For example, on April 18, 1998, the International officer Rerun Election time table was suspended pending the Election Officer’s decision in In re Carey Slate, PR-035-EOH (April 27, 1998).  A new time table was not established until June 3, 1998, by order of the United States District Court for the Southern District of New York in United States v. IBT, 88 Civ. 4486 (S.D.N.Y.).   Mr. Leedham did not announce his candidacy for general president until May 22, 1998, well after this meeting occurred.