Protest Decisions

              August 29, 1995

VIA UPS OVERNIGHT

Gene Giacumbo, et al.

August 29, 1995

Page 1

Gene Giacumbo, et al.

August 29, 1995

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RE:              Election Office Case Nos.              P-001-IBT-PNJ

                                   P-018-IBT-PNJ             

Gentlepersons:

Related pre-election protests were filed pursuant to Article XIV, Section 2(a) of the

Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”),[1] by International Vice President Gene Giacumbo in a letter dated December 15, 1994, and by Mike Martin, a member of Local 387, in a letter dated March 27, 1995.  Because these protests raise similar legal claims, they were consolidated by the Election Officer. 

The protestors allege that General President Ron Carey is using union funds to pay for opinion polls of union members that are political in nature and will be used by Mr. Carey and his running mates in the 1996 elections.  Mr. Giacumbo’s protest (P-001-IBT-PNJ) was filed on December 15, 1994, two days after Mr. Carey sent a message via the IBT TITAN electronic mail system to local unions advising them of the upcoming poll.  Mr. Giacumbo requested that the Election Officer take immediate action to stop the poll.  On December 29, 1995, Mr. Giacumbo’s attorney, George R. Geller, wrote to the Election Officer further detailing Mr. Giacumbo’s protest.  Mr. Geller claimed that the Election Officer should stop the poll because “any violation represented by the polling cannot meaningfully be remedied five months from now after the election rules are adopted.”  Mr. Geller also pointed out that the political nature of the poll was evidenced by Mr. Carey’s prior refusal to share the questions asked and the data derived from earlier IBT commissioned polls with elected international officers or the membership.  The Election Officer declined to stop the December 1994 poll, but did take jurisdiction over this matter on April 24, 1995, when the Rules became effective.

Protester Martin filed a protest on March 27, 1995 (P-018-IBT-PNJ) alleging that a secret poll conducted by the IBT in 1993 was an asset to Mr. Carey as a candidate. 

Mr. Martin requested that the poll be disclosed to the general membership and all individuals who intend to run in the International officer election.

In response to the protests, the IBT stated that such a poll was taken of a sampling of the membership, but that it was for legitimate union purposes.  The union also asserted that neither the raw polling information nor the analysis can be shared with anyone since the hand-written notes and certain data generated from the responses to the poll are confidential documents.  Finally, the IBT asserts that any campaign-related material in the poll is incidental to the entire context of the poll.

Gene Giacumbo, et al.

August 29, 1995

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The investigation was conducted by              Regional Coordinator Peter V. Marks, Sr.

The investigation demonstrated that since May 1992, the IBT has on several occasions retained Peter D. Hart Research Associates, Inc. to conduct professional polls of IBT members and workers that the union hoped to organize.  Hart Research is an independent national opinion research firm based in Washington, D.C.  Hart Research states that it has conducted over 2,500 public opinion surveys of various kinds over the last 24 years, including polls for a number of major labor organizations.  Since January 1992, the IBT has commissioned Hart Research to conduct several polls of the membership.  All of these polls were conducted by telephone, using detailed questionnaires and trained interviewers.  The members who were interviewed were chosen at random through a computerized program, and their identities kept strictly confidential by the polling organization.  For example, Study No. 3801, conducted in June 1993, was a survey among IBT members who worked for United Parcel Service.  The poll sought the members’ opinions about various terms and conditions at work, the members’ attitudes toward management and their attitudes toward IBT and the new national leadership.  The poll further sought their views as to priorities and concerns for the next collective bargaining agreement.

Study No. 3842 took place in November 1993 among a representative sample of IBT members.  The survey asked the members’ views on working conditions, how they felt about their union and current union contract, and how they felt about the new union leadership.  It also asked how they felt about the union magazine and whether they voted in the last mail election for president of the IBT.  The bulk of the survey sought the members’ opinions concerning the financial problems of the International Strike Fund and the possibility of increasing dues.

Study No. 4312A was conducted among a representative sample of approximately 1,000 members in December 1994.  The poll contained 18, mostly multi-part questions, and nine demographic questions (e.g., age, education, etc.).  The questions sought members’ opinions on their current union contract, their local and national unions, services used or desired by members as part of the Teamster Privilege Program, the union magazine, the abolition of the area conferences, and attitudes towards a dues increase.  The primary focus of the survey appeared to be members’ attitudes toward national political affairs, and the International Union’s financial problems, including the Strike Fund. The poll cost the IBT $41,720.

According to the president of Hart Research, the December 1994 survey was designed to examine three areas:  members’ satisfaction with their current union contract and their priorities for future contracts; members’ political participation and priorities on legislative issues; and members’ attitudes toward the performance of their union at various levels and their perceptions of how well the union is representing them.  General President Ron Carey approved the commissioning of the survey, and Aaron Belk, executive assistant to the general president, reviewed the questions prior to the actual conduct of the poll.  The results of the poll were kept confidential, shared only with a small group of executive staff members,

President Carey, and Secretary-Treasurer Sever.  The General Executive Board was not privy to either the questions asked or the results of the survey.

While the majority of the survey is issue- and demographically-oriented, several of the questions in the December 1994 poll focus on General President Carey.  In one question

(No. 5), the interviewer reads to the member a list of “public figures and institutions” and asks the member to rate his/her feelings as very positive, somewhat positive, neutral, somewhat negative, very negative, or not sure.  The list includes Bill Clinton, the Republican Party, the Teamsters, the Democratic Party, Ron Carey, Newt Gingrich, and Ross Perot.  Question 10(a) asks if the member recognizes Ron Carey as president of the IBT.  Question 10(b) asks if the member generally approves or disapproves of the job Mr. Carey is doing.  Question 10(c) asks if the member thinks Mr. Carey has done a better or worse job than previous union presidents.  Question 10(d) is an open-ended question, asking the member to list the positive and negative impressions he or she has about Mr. Carey.

Prior to taking the December 1994 poll, Mr. Giacumbo requested that Mr. Carey not conduct the poll.  After the poll was conducted over his protests, Mr. Giacumbo demanded information as to the funding of the poll and the uses of the poll.  These requests were either denied or unanswered.  There is no dispute that Mr. Carey did not share the specific questions asked or results of the 1994 poll or the prior polls with the IBT General Executive Board, of which Mr. Giacumbo is a member. 

The Rules, at Article XII, Section 1(b), prohibit employers and unions from making any “campaign contribution,” which is defined as any contribution “where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate [for the 1996 International Convention delegate or alternate delegate of International Officer position].”

In determining whether a prohibited contribution has occurred under the Rules, the Election Officer is guided by the cases that apply Section 401(g) of the Labor-Management Reporting and Disclosure Act, as amended, (“LMRDA”), which contains similar prohibitions on the use of union and employer assistance in campaigning and is incorporated into the Rules, pursuant to Article XIII.  The LMRDA prohibits union assistance only if the activity supported by such assistance promotes the candidacy of a person in a regulated election.  The Election Officer has previously determined that Mr. Carey became a candidate by October 1994.  Martin, supra.  Thus, only the December, 1994 poll was conducted after Mr. Carey became a candidate and implicates the provisions of the Rules prohibiting union assistance.

Most of the questions in Study No. 4312A taken in December 1994, seek information about valid issues of legitimate concern to the union and its members.  Facing serious financial problems with the Strike Fund, the union leadership had reasonable basis to survey the membership before proposing a reduction of strike benefits, an increase in dues, or some other solution.  The reaction of the membership to the profound changes created on the national political scene by the 1994 Congressional elections is also a matter of legitimate concern to the union officers who must now defend the statutory rights of its members in a very different political environment.  The other questions about the union assist the leadership in better serving and communicating with the membership.

However, Questions 5 and 10(a)-(d) in the December 1994 survey, which address members’ opinions of Mr. Carey, seek information that would be directly useful and relevant to Ron Carey as a candidate for reelection.  As delivered to Mr. Carey, the results of this particular survey consisted of a three-page descriptive analysis, and a notebook of over 100 pages of statistical results in which the responses for each question were broken down by a number of demographic and other detailed factors, including cross-analysis with other questions in the survey.  These questions, seeking information after Mr. Carey is a candidate, give Mr. Carey an in-depth view of how members perceive him and his leadership.  This information could be utilized to influence his reelection as general president.

The International union has argued that the questions about Mr. Carey are really attempts to gauge how members feel about the union as a whole, and that Mr. Carey is synonymous with the IBT.  This is because, asserts the International, the attitudes of members toward the union are inseparable from their attitudes about the union’s leader.  While this argument may have some merit, it is undercut by the fact that the December 1994 survey asked far more specific questions about Mr. Carey than did earlier surveys. 

The IBT argues that Hart Research has noted that polls which are used to assist election campaigns are operated on a very different basis than the poll at issue here.  The IBT asks the Election Officer to consider this fact.  Moreover, the Union argues that Mr. Carey has never utilized the data for campaign-related conduct.  It may be that a poll designed solely for a candidate would look different, but that does not mean that the specific questions discussed above are not more for the benefit of Mr. Carey as a candidate for office than as the union president making institutional policy.  No one else was acting as a polling consultant for

Mr. Carey as a candidate at that time.  The Rules do not require that a candidate use a campaign contribution, only that the contribution has a “foreseeable effect” to influence the election of a candidate.

Finally, the IBT argues that even if the Election Officer were to find some of the information sought in the December 1994 poll is “campaigning,” that the campaign related material is incidental to the overall purposes of the poll, which is conducted for legitimate union business reasons.  Such an argument presumes the applicability of Article VIII,

Section 11(b) of the Rules which states, in pertinent part: “[O]fficers and employees (and other members may not campaign on time that is paid for by the Union.  Campaigning incidental to regular Union business is not, however, violative of this section.”  As noted above, however, the Election Officer does not find that Mr. Carey has engaged in union-financed campaigning in violation of Article VIII, Section 11, but that because specific questions (and the cross-analysis of these questions) have a “foreseeable effect” to influence Mr. Carey’s election, he has accepted a campaign contribution prohibited by Article XII, Section 1(b) the Rules. 

Gene Giacumbo, et al.

August 29, 1995

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Viewed under the totality of the circumstances, the Election Officer finds that the questions concerning how the members viewed Mr. Carey in Study No. 4312A constitute the use of union funds to support a candidate in violation of Article XII, Section 1(b) of the Rules.  Accordingly, the protests as to the questions about Mr. Carey in the December 1994 poll protested in P-001-IBT-PNJ are GRANTED, and in all other respects, P-001-IBT-PNJ and

P-018-IBT-PNJ are DENIED.

When the Election Officer determines that the Rules have been violated, she may “take whatever remedial action is appropriate.”  Article XIV, Section 4.  In fashioning the appro-priate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.  Martin, supra.

In determining a remedy in this case the Election Officer has considered several factors.  The Rules recognize opinion polling as a campaign tool which can be engaged in by candidates for International office and permit candidates to request a random sampling of the names, addresses and telephone numbers of members of the union for that purpose. 

Article VIII, Section 3(b).  There is no question that opinion polling financed by a campaign is not a violation of the Rules.

The violation herein is that such polling was done with International union funds.  Where the union has improperly contributed to a candidate for International office, the Election Officer has in certain cases required that the union be reimbursed for the costs of the contribution or the contribution be returned by the campaign.  Durham, Case No. Post-75-IBT (January 10, 1992).  See also The Committee to Elect Ron Carey, Case No. P-651-IBT (August 14, 1991); Rodriguez, Case No. P-1062-IBT (November 13, 1991); RL Communications, Case No. P-284-IBT (September 20, 1991), rev’d on other grounds, 91 - Elec. App. - 19 (SA) (October 2, 1991).

The Election Officer also considered a remedy that would provide for the disclosure of the polling information to other candidates for office and has found such a remedy would be inappropriate in this case.  The International did not publicize the results of this poll in any way, and it is undisputed that it was shared with only a few individuals, not including the General Executive Board.  The Election Officer believes there are strong, legitimate  institutional concerns for retaining the confidentiality of such a poll.  Given the fact that a large portion of the poll contained questions and responses which constitute a legitimate  expenditure of union funds rather than a campaign contribution, it would be inappropriate to order disclosure of these results which union officials have determined should remain confidential.  The Election Officer notes in this regard that maintaining confidentiality has been the practice of IBT polling done prior to 1994 and is common among unions and other clients of such polls.  Furthermore, release of such information could be utilized by third parties, including employers, seeking to exploit various differences within the IBT membership.              Nor is it possible to isolate and disclose solely the portion of  the poll regarding the Carey questions.  The cross-referencing of the results would not permit such segregated disclosure in a way which would insulate the Union from the danger to its institutional interests described above.

Gene Giacumbo, et al.

August 29, 1995

Page 1

It is therefore the Election Officer’s determination that as a remedy for the violation found, the Carey campaign shall reimburse the International Union for the costs of the survey as they relate to Questions 5 and 10(a)-(d) and to the questions that provided the data with which the above-described questions were cross-tabulated in the survey results provided to the IBT.  To determine that cost, the International Union shall, within two (2) days of receipt of this decision and order, request from Hart Research a bill representing what that company would have charged the Carey campaign to conduct this poll among the same number of members, asking only Questions 5 and 10(a)-(d), and the questions that provided the data with which the above-named questions was cross-tabulated in the survey results provided to the IBT.  Any cost incurred by the International Union for obtaining this bill shall be borne by the Carey campaign.  Within fourteen (14) days of receipt of this decision and order, the International Union shall provide a copy of the bill from Hart Research to the Carey campaign and the Election Officer. Thereafter, the Election Officer shall issue a Supplemental Decision determining the amount that the Carey campaign will reimburse the International Union for its campaign contribution.  Thirty (30) days after issuance of the Supplemental Decision, the Carey campaign shall reimburse the International Union for its campaign contribution in the amount designated by the Election Officer.  The Carey campaign shall submit an affidavit affirming that it has made payment within this time frame.     

As an additional remedy, the IBT shall cease and desist from including in any poll any questions about individuals who are candidates for International office, including Mr. Carey, through the time of the 1996 International election.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one 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, Esquire

              Mudge, Rose, Guthrie, Alexander & Ferdon

              180 Maiden Lane, 36th Floor

              New York, NY  10038

              Fax (212) 248-2655

Gene Giacumbo, et al.

August 29, 1995

Page 1

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C.  20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:              Kenneth Conboy, Election Appeals Master

Regional Coordinators