August 23, 1995
VIA UPS OVERNIGHT
Charles J. Mosqueda
2603 N. 72nd Street
Garden City, KS 67846
Larry F. Landwehr, President
Teamsters Local Union 795
4921 Cessna Street
Wichita, KS 67210
Re: Election Office Case No. P-042-LU795-SCE
Gentlemen:
A pre-election protest was filed pursuant to Article XIV, Section 2(a) of the Rules for the 1995-96 IBT International Union Delegate and Officer Election (“Rules”) by Charles J. Mosqueda, a member of Local Union 795.[1] The protest alleges that for the two years prior to filing of the protest (May 23, 1995), Local Union President Larry F. Landwehr used his position at union meetings to engage in “negative talk and slander” against General President Ron Carey and his administration. The protester further contends that the Local Union officers are always handing out anti-Carey flyers and negative propaganda at Local Union meetings.
Charles J. Mosqueda
August 23, 1995
Page 1
President Landwehr responded to the protest by explaining that he has been asked and has rendered his opinion at Local Union meetings on such matters as the dues assessments, national master freight negotiations, and the UPS master negotiations. He asserts he is entitled to give his opinion on issues concerning his membership and of interest and concern to the union. He further states that although he read anti-Carey materials, he knows of no flyers that have been handed out at Local Union meetings by himself or his staff, but rather, the protester has put out flyers and solicited a slate of candidates to run against Mr. Landwehr in the upcoming Local Union election of officers.
The protest was investigated by Regional Coordinator Bruce Boyens.
The protester alleged, and the Local Union President does not deny, that over the past two years, President Landwehr made comments critical of Mr. Carey and his administration of the IBT during the course of Local Union meetings. The protester did not recall the specific content of Mr. Landwehr’s comments. The Local Union president has announced to the membership at a Local Union meeting that he would read all material given to him by any member, whether it was pro- or anti-Carey in nature.
The Rules prohibit a Local Union from using its membership meetings to discriminate in favor or against the candidacy of any individual. Specifically, Article VIII, Section 5(a)(4) states:
A Local Union shall not discriminate or permit discrimination in favor of or against any candidate in conjunction with its meeting or otherwise. This requirement shall apply not only to formal presentations by or on behalf of candidates but also to informal campaign activities, such as, for example, comments on candidates during meetings, literature distribution at meetings, literature distribution tables, etc.
Charles J. Mosqueda
August 23, 1995
Page 1
In determining whether a Local Union or its officers violated Article VIII, Section 5(a)(4) of the Rules, the Election Officer must first determine if the individual or individuals commented upon were “candidates”[2] at the time of the meeting. The only specific evidence presented as to the nature of the comments made and literature distributed was in reference to a meeting in May of 1995.[3] The Election Officer has determined Mr. Carey was a candidate at this time. See, Martin, P-10-IBT-PNJ et al. (August 17, 1995).
The protester alleges that the Local Union permitted the distribution of anti-Carey literature during the May 1995 Local Union meeting and that Mr. Landwehr read such literature during Local Union meetings. Permitting union members to campaign during union meetings and distribute campaign literature would trigger the operation of the nondiscrimination provisions of Article VIII, Section 5(a)(4).
The Election Officer’s investigation determined that copies of material which are critical of Mr. Carey were made available on tables at the back of the union hall at the May 13, 1995 meeting. These materials included a reprint of a Time magazine article dated May 15, 1995 raising questions about former Judge Frederick Lacey (now a member of the IBT Internal Review Board) during the 1994 IRB investigation of Mr. Carey; a copy of Mr. Lacey’s letter to Thomas Puccio sent during the 1994 investigation of Mr. Carey; and an anti-Carey flier focused on accusations and cover-up of Mr. Carey’s mob ties.[4]
There is no evidence that these materials were originally published or reproduced by Local Union 795.[5] Nonetheless, if these materials constitute “campaign literature” and the Local Union permits their distribution at the Local Union meeting, it must provide an equal right to distribute other campaign literature in the same fashion.
The tone and content of the attack on Mr. Carey in these materials goes beyond the policies of Mr. Carey and his administration of the union. The flyer in particular directly attacks Mr. Carey and not in his capacity as General President . The headline reads, “Time Magazine Exposes Lacey/IRB Whitewash of Carey Mob Ties!!” The flyer reads, in pertinent part:
Charles J. Mosqueda
August 23, 1995
Page 1
[T]he Consent Decree was a fraud, designed to promote Ron Carey and TDU through a rigged IRB disciplinary procedure that was blind to Carey’s faults and only targeted his opponents. Now, the facts are coming out and the Carey hoax is crumbling.
This flyer goes well beyond criticizing Mr. Carey for the manner in which he conducts the affairs of the union and attacks Mr. Carey personally and politically. It therefore constitutes campaigning against a candidate which triggers the nondiscrimination provisions of Article VIII, Section 5(a)(4). By virtue of allowing the flyer to be distributed at Local Union meetings the Local Union leadership has permitted campaigning to take place. The Local Union, therefore, must allow campaigning of the same nature in support of Mr. Carey and other candidates for General President of the IBT.
The evidence, however, does not support a claim of discriminatory treatment. All parties agree that Mr. Landwehr has announced to the membership at Local Union meetings that he would read all material given to him, whether the material was pro or anti-Carey. It is also undisputed that Mr. Mosqueda has also distributed flyers and political material at the Local Union hall. Based on these findings, the reading from and distribution of these materials does not violate Article VIII, Section 5(a)(4) of the Rules.
For the foregoing reasons, the protest is DENIED.
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, Esq.
Mudge, Rose, Guthrie, Alexander, Ferdon
180 Maiden Lane, 36th Floor
New York, NY 10038
Fax (212) 248-2655
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: Election Appeals Master Kenneth Conboy
Bruce Boyens, Regional Coordinator
[1]This “reach-back” protest was filed within the 30-day period following the final promulgation of the Rules on April 24, 1995, and, in some instances, allege violations occurring prior to the issuance of the Rules. The Rules, at Article XIV, Section 2(a), state:
Protests regarding violations of the [Labor-Management Reporting and Disclosure Act, as amended] (including violations of the IBT Constitution) allegedly occurring prior to the date of issuance of the Rules and protests regarding any conduct allegedly occurring within the first twenty-eight (28) days after issuance of the Rules must be filed within thirty (30) days of the date of issuance, or such protests shall be waived.
[2] Under the Rules,"candidate" is defined as:
[A]ny member who is actively seeking nomination or election for any Convention delegate or alternate delegate position or International Officer position. The term includes any member who has accepted any campaign contribution as defined by the Rules or made any expenditure, where the purpose, object or foreseeable effect of the contribution or expenditure is to influence the election of that member to any such position.
[3]The Election Officer cannot make findings on the basis of the generalized claim that comments or literature was “anti-Carey” in nature insofar as she must examine the specific content, tone and context of such comments in order to determine if they fall within the area of legitimate political debate over the manner in which an incumbent conducts business or constitutes “campaigning.” In Re: Sullivan, 95 - Elec. App. - 6 (KC) (August 14, 1995).
[4]President Landwehr denied that copies of these materials or any other pro- or anti-Carey materials have ever been made available to members at Local Union meetings. Local Union 795 Recording Secretary Steve Griffin corroborated the protester’s allegation that anti-Carey materials have been made available to members on tables at the back of the union hall. The Election Officer credits the statements of the protester and Mr. Griffin.
[5]Thus, there is no evidence in this case of a prohibited use of union funds in violation of Article VIII, Section 11(c) of the Rules.