Protest Decisions

October 27, 1998

VIA FACSIMILE AND FIRST CLASS MAIL

Larry Irwin

October 27, 1998

Page 1

Larry Irwin

3910 James Lee Street

Schofield, WI. 54476

James Newell, Secretary-Treas.

Teamsters Local Union 662

P.O. Box 86

Eau Claire, WI 54702

Paul Alan Levy, Esq.

Public Citizen Litigation Group

1600 20th Street N.W.

Washington, DC XXX-XX-XXXX

Larry Irwin

October 27, 1998

Page 1

Re: Election Office Case No. PR-353-LU662-EOH

Gentlemen:

Larry Irwin, president of Local Union 662, 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 James Newell, secretary-treasurer of Local Union 662.  The protester alleges that Mr. Newell improperly expended union resources to criticize the content of an election-related leaflet and that he threatened those responsible for creating the leaflet, as well as anyone who failed to identify the author of the leaflet, with disciplinary action and discharge from employment.  Mr. Newell admits taking actions to identify the author of the leaflet but denies that his actions or the leaflet itself are related to the International Officer Rerun Election.

The protest was investigated by Election Office Staff Attorney Peter F. Gimbrère.

On Thursday, October 20, 1998, the attached leaflet (Exhibit A) was circulated to employees at the Copps Company, located near Eau Claire, Wisconsin, whose employees are represented by Local Union 662.  The leaflet was prepared by an unidentified person and makes numerous references to a number of candidates in the Rerun Election.  At the bottom of the leaflet are the words “Vote for Tom Leedham, Teamster Rank and File Power.”

Larry Irwin

October 27, 1998

Page 1

There is no dispute that on October 21, 1998, Mr. Newell distributed the letter attached as Exhibit B in response to the anonymous leaflet.  The letter, written on Local Union 662 letterhead, directs that any employee and/or local union officer who either directly or indirectly participated in the production or distribution of the leaflet to identify themselves to

Mr. Newell by no later than October 26, 1998.  The letter also states that “[f]ailure . . . to comply with this directive will be deemed sufficient grounds for immediate dismissal and/or internal charges being filed against them.” 

Mr. Newell admits distributing the letter to all employees, officers and representatives of Local Union 662.  Mr. Newell contends that his attempt to identify the author of the leaflet is based upon his belief that the majority of the content of the leaflet is offensive to employees, some of whom are not even IBT members, and that the leaflet does not address issues important or relevant to the International Officer Rerun Election.

The Election Officer finds that, due to the numerous references to Rerun Election candidates, as well as to the final exhortation to vote in favor of the Tom Leedham “Rank and File Power” Slate, the anonymous leaflet distributed at the Copps Company constitutes campaign material. The Rules strongly protect the right to distribute such campaign material, regardless of its content.[1]  Article VIII, Section 11(d) specifically states that “no restrictions shall be placed upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature . . . or engage in similar activities on employer or Union premises.”

Furthermore, Article VIII, Section 11(f), prohibits “[r]etaliation or threat of retaliation by . . . any subordinate body . . . any employer or other person or entity against a Union member . . . for exercising any right guaranteed” under the Rules.  The Election Officer has previously stated that conduct is not retaliatory unless it “embodies a palpable threat of actual harm.”  Blake, P-785-LU630-CLA (June 19, 1996).  See also Dunn, P-110-LU25-BOS (July 28, 1995), aff’d, 95 - Elec. App. - 8 (KC) (August 21, 1995); Kelly, P-600-LU705-CHI et seq. (March 27, 1991); Schweitzer, P-672-LU896-CLA (March 25, 1991), aff’d, 91 - Elec. App. - 118 (SA) (April 31, 1991); In re: Sullivan, 95 - Elec. App. - 2 (KC) (July 14, 1995).  Here,

Mr. Newell’s threats of discipline or dismissal are very clear and explicit threats of actual harm,  directed at those who created and distributed the campaign material as well as at anyone who fails to identify such individuals.  This overt threat of retaliation has no place in the Rerun Election and constitutes a flagrant violation of the Rules.

Larry Irwin

October 27, 1998

Page 1

Furthermore, Article VIII, Section 8(a) of the Rules specifically prohibits any communication financed by a union from supporting or attacking the candidacy of any person in the Rerun Election.  Mr. Newell’s use of union resources to deliver his threat of retaliation and to thereby implicitly attack the candidacy of Tom Leedham constitutes an additional violation of the Rules. 

Accordingly, the protest is GRANTED.

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.

Therefore, the Election Officer orders the following:

1. Mr. Newell shall immediately cease and desist from taking the following actions:

a. Threatening to retaliate against any employees, officers, members or representatives of Local Union 662 based upon activity protected by the Rules;

b.  Attempting to identify any employees, officers, members or representatives of Local Union 662 engaged in activity protected by the Rules; and,

c.  Utilizing Local Union 662 resources to contribute to or criticize the candidacy of any candidate in the International Officer Rerun Election.

2.  By October 30, 1998, Mr. Newell shall determine the cost to Local Union 662 of his distribution of the October 21, 1998 letter and shall reimburse Local Union 662 for that amount.  Mr. Newell shall send a copy of the check to the Election Office, exhibiting payment to Local Union 662.

3.  By October 30, 1998 and at his own personal expense, Mr. Newell shall mail and/or hand-deliver to all employees, officers and representatives of Local Union 662 a copy of the attached letter entitled “A Letter to all Employees, Officers and Representatives of Local Union 662.”  The letter shall be copied on to official Local Union 662 letterhead and shall be signed by Mr. Newell.

Larry Irwin

October 27, 1998

Page 1

4.  By October 30, 1998, Mr. Newell shall sign and post the attached “Notice to All Local Union 662 Members and Employees” on all bulletin boards at the local union offices and on the union bulletin board(s) at the Copps Company facility in Stevens Point.

5.  By November 3, 1998, Mr. Newell is ordered to submit a signed affidavit to the Election Office detailing his compliance with the order of the Election Officer.

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) (February13, 1996).

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

Letter to all Employees, Officers and Representatives of Local Union 662

In a recent decision, the Election Officer found that I violated the Election Rules by improperly threatening to discipline or dismiss certain Local Union 662 employees and/or officers.  I have been ordered to cease and desist from such retaliatory conduct and to distribute this letter.

The Election Officer has also directed me to remind Local Union 662 employees, officers and representatives of their rights under the Rules:

·                      Every member of the IBT has a personal right to participate in campaign-related activity under the Rules. Members may decide to support or oppose whomever they choose, to aid or campaign for any candidate, and to make campaign contributions.  The Rules also protect a member’s right not to become involved in the International officer election at all.

·                      Retaliation or the threat of retaliation by the IBT for exercising any right guaranteed by the Rules is prohibited and will not be tolerated.

·                      Members and local unions are prohibited from using union resources to campaign.

If you believe you have been retaliated against or threatened with retaliation based upon election-related activity, you may file a protest with the Election Officer at 444 North Capitol Street, NW, Suite 445, Washington, DC 20001; Telephone (800) 565 VOTE; Fax (202) 624-3525.

James Newell

Secretary-Treasurer, Local Union 662

Approved by Michael G. Cherkasky, IBT Election Officer

NOTICE TO ALL EMPLOYEES

AND MEMBERS OF LOCAL UNION 662

In a recent decision, the Election Officer determined that I violated the Election Rules.  The Election Officer determined that  I improperly threatened to discipline or dismiss certain Local Union 662 employees and/or officers.  I have been ordered to cease and desist from such conduct and to post this Notice.

The Election Officer has directed me to remind IBT employees of their rights under the Rules:

·                      Every member of the IBT has a personal right to participate in campaign-related activity under the Rules.  Members may decide to support or oppose whomever they choose, to aid or campaign for any candidate, and to make campaign contributions.  The Rules also protect a member’s right not to become involved in the International officer election at all.

·                      Retaliation or the threat of retaliation by the IBT for exercising any right guaranteed by the Rules is prohibited and will not be tolerated.

·                      Members and local unions are prohibited from using union resources to campaign.

If you believe you have been retaliated against or threatened with retaliation based upon election-related activity, you may file a protest with the Election Officer at 444 North Capitol Street, NW, Suite 445, Washington, DC 20001; Telephone (800) 565- VOTE; Fax (202) 624-3525.

James Newell

Secretary-Treasurer of Local Union 662

This is an official notice that must remain posted until December 3, 1998, and must not be defaced or altered in any manner or be covered with any other material.