September 8, 1998
VIA FIRST-CLASS MAIL
Jon Senum
September 8, 1998
Page 1
Jon Senum
2431 Garfield Avenue
Minneapolis, MN 55405
Jim Iund, Steward
Teamsters Local Union 638
3001 University Avenue, SE
Minneapolis, MN 55414
Paul Alan Levy, Esq.
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
Richard J. Heck, Secretary-Treasurer
Teamsters Local Union 638
3001 University Avenue, SE
Minneapolis, MN 55414
Gary M. Tocci, Esq.
Schnader, Harrison, Segal and Lewis
1600 Market Street
Philadelphia, PA 19103
Jon Senum
September 8, 1998
Page 1
Re: Election Office Case No. PR-167-LU638-EOH
Gentlemen:
Jon Senum, a member of Local Union 638, 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 Jim Iund, a Local Union 638 steward, and Ed Smith, a UPS manager. The protester alleges that Mr. Iund has been defacing campaign material supporting Thomas Leedham, a candidate for general president and a member of the Tom Leedham “Rank and File Power” Slate (“Leedham Slate”). In addition, the protester states that Mr. Iund and Mr. Smith have been “conspiring to thwart the candidacy of Mr. Leedham, promote the candidacy of Jimmy Hoffa, and interfere with members’ right to distribute campaign literature in nonwork areas on nonwork time,” in violation of the Rules.
Mr. Iund admits to defacing the campaign literature but denies that he ever conspired with Mr. Smith. Mr. Smith denies the allegations. Local Union 638 denies any involvement in the matter.
The protest was investigated by Election Office Staff Attorney Peter F. Gimbrère.
Jon Senum
September 8, 1998
Page 1
Mr. Senum and Mr. Iund are employed at the UPS facility located in Minneapolis, Minnesota. The management of the facility allows the placement of campaign literature in non-work areas and the distribution of such literature by employees during non-work time. For at least the last several months, Mr. Senum has been placing copies of the Convoy Dispatch, a magazine published by Teamsters for a Democratic Union, as well as Leedham Slate flyers and other campaign literature on tables and chairs in non-work areas at the facility.
On July 6, 1998, after distributing some new copies of the Convoy Dispatch as well as some Leedham Slate campaign literature, Mr. Senum observed Mr. Iund stamping copies of the magazine and literature with a stamp that says “Same Flies . . . Different Shit.”[1] The protester provided the Election Office with copies of the defaced Leedham Slate campaign literature. Mr. Senum estimates that he has placed approximately 400 Leedham Slate flyers and 200 copies of the Convoy Dispatch in the break rooms over the last several months and that Mr. Iund has defaced nearly all of them with his stamp. The Election Office has determined that the Minnesota Chapter of Teamsters for a Democratic Union paid for the first 100 of the 200 copies of the Convoy Dispatch distributed at the facility at a cost of $12.00 while Mr. Senum paid for the remaining 100 copies at a cost of $16. The Minnesota Leedham Committee paid for all 400 Leedham Slate flyers at a cost of $70.00.
On this same date, Mr. Senum alleges that he saw Mr. Iund showing the stamp at issue to Mr. Smith, one of the facility managers. Mr. Senum stated that at that time he also saw Mr. Smith with a Leedham campaign flyer in his hand and overheard the two men discussing how best to get rid of the Leedham Slate literature.
Mr. Iund admitted stamping the materials, but added that he did not think it was a violation of the Rules to place such a stamp on the magazine and literature. He also stated that he had stamped prior copies of the Convoy Dispatch and campaign literature in a similar manner, but that no one had ever stopped him. Mr. Iund denies that he ever showed the stamp to Mr. Smith or that he ever had any discussion with Mr. Smith about the Leedham Slate campaign literature.
Jon Senum
September 8, 1998
Page 1
Mr. Smith denies ever seeing Mr. Iund’s stamp or any literature bearing the words from Mr. Iund’s stamp. He also denies ever holding a Leedham Slate campaign flyer in his hand on the day in question. Mr. Smith stated that the only conversation that took place between him and Mr. Iund on that day was limited to Mr. Smith stating “I can’t go there” when Mr. Iund asked his reaction to the fact that there were people outside of the building passing out campaign literature. Aside from his testimony regarding the alleged discussion between Messrs. Smith and Iund, the protester presented no evidence to support his allegation of a conspiracy between the two men to thwart the campaign of Mr. Leedham.
The Election Officer has consistently held that the removal or defacement of properly posted campaign literature is a serious violation of the Rules. See Amodio, P-1073-LU182/317-PGH (November 20, 1991); Teller, P-945-LU741-PNW (October 14, 1991); Fleeger, P-876-LU988-SOU (September 11, 1991); Blake, P-767-LU439-CSF (July 1, 1996).
The Election Officer has also held that the Rules neither prohibit nor regulate the content of campaign literature. See Points, P-519-LU916-SCE (March 4, 1996); Kulak, P-555-LU155-CAN (March 13, 1996), aff’d, 96 - Elec. App. - 160 (KC) (April 8, 1996); Pockels, P-664-LU302-CSF et seq. (April 16, 1996); Volpe, P-679-LU550-NYC (April 2, 1996). The Election Officer has stated:
[T]he Election Officer’s duty is to ‘insure fair, honest, open and informed elections.’ This essential goal is achieved by supporting a ‘policy of encouraging free and open debate in internal union affairs’ . . . The model for free and fair Union elections is that of partisan political elections . . . The cardinal principle is that the best remedy for untrue speech is more free speech, with the electorate being the final arbiter.
Newhouse, P-388-LU435-RMT (February 21, 1996) (citing Landwehr, P-201-LU795-MOI (November 15, 1995) (citations omitted)).
Jon Senum
September 8, 1998
Page 1
While the Rules protect and promote free speech and dialogue in the election process, they do not protect or condone acts of vandalism or the destruction of property. Mr. Iund’s act of defacing campaign literature which had been financed by others and placed in the UPS facility by Leedham Slate supporters pursuant to a preexisting right[2] is just as egregious a violation as the removal or defacement of campaign literature from a bulletin board. The stamping of both the fliers and copies of the Convoy Dispatch[3] substantially altered the campaign literature, as would the placement of a sticker, or any other destruction of campaign material. Consequently, the Election Officer finds Mr. Iund’s actions in violation of the Rules.
With regard to the allegation of employer interference in protected campaign activity, the investigation did not uncover any corroboration of the protester’s charges. As the Election Appeals Master has stated in In re Chentnik, 95 - Elec. App. - 52 (KC) (January 10, 1996), “[w]here the parties differ as to material facts, the Election Officer looks to the protester, who bears the initial burden of proof, to offer evidence substantiating his allegations.”
Accordingly, the protest is GRANTED in part; and DENIED in part.
When the Election Officer determines that the Rules have been violated, he “may take whatever remedial action is appropriate.” Article XIV, Section 4. In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation as well as its potential for interfering with the election process.
The Election Officer orders the following:
1. Mr. Iund shall immediately cease and desist from defacing or removing any and all campaign literature at the UPS facility or at any other location.
2. Within five (5) working days of receipt of this decision, Mr. Iund is ordered to reimburse the Minnesota Chapter of Teamsters for a Democratic Union c/o Mr. Senum the amount of $12.00 for the cost of 100 copies of the Convoy Dispatch.
3. Within five (5) working days of receipt of this decision, Mr. Iund is ordered to reimburse Mr. Senum the amount of $16.00 for the cost of 100 copies of the Convoy Dispatch.
4. Within five (5) working days of receipt of this decision, Mr. Iund is ordered to reimburse the Minnesota Leedham Campaign c/o Mr. Senum the amount of $70.00 for the cost of 400 Leedham Slate flyers.
5. Within one (1) day after these reimbursements, Mr. Iund shall file an affidavit with the Election Officer demonstrating compliance with this order, and attaching a copy of the checks demonstrating payment.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In re Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).
Jon Senum
September 8, 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
cc: Kenneth Conboy, Election Appeals Master
[1] In his protest, Mr. Senum stated that the stamp bore the words “This is All Lies.” During the investigation of the protest, however, it was determined that the stamp in question bore the words indicated above.
[2] None of the campaign literature was posted due to the fact that this specific UPS facility does not allow campaign literature on the bulletin boards. However, there is no question that the literature was allowed to be stacked on tables and chairs in various non-work areas of the facility.
[3] It is well-established that the Convoy Dispatch is considered to be campaign literature. See Hoffa, P-313-LU728-SEC (February 27, 1996); Hoffa, P-1049-LU104-RMT (November 1, 1996); Welsh, P-1147-LU385-SEC (November 18, 1996).