Protest Decisions

October 13, 1995

VIA UPS OVERNIGHT

Sandy Pope and John Stripniewicz

October 13, 1995

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Sandy Pope and John Stripniewicz

October 13, 1995

Page 1

Sandy Pope and John Stripniewicz

October 13, 1995

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Re:   Election Office Case Nos.              P-046-JC7-PNJ                           

P-086-LU995-CLA

Gentlepersons:

Two related protests were filed pursuant to Article XIV, Section 2(a) of the Rules for

Sandy Pope and John Stripniewicz

October 13, 1995

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the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).[1]

P-046-JC7-PNJ was filed by Sandy Pope, a member of Local Union 851, who alleges that union resources were used by James P. Hoffa and his supporters to campaign at the Inter-national Teamster Women’s Caucus Convention (“Convention”) held March 24-26, 1995 and at a fundraiser for Jesse Acuna held March 24, 1995, both events having taken place in Las Vegas, Nevada.[2]  P-086-LU995-PNJ was filed by John T. Stripniewicz, a member of Local Union 995, who alleges that union resources were used to hold a campaign rally for Mr. Hoffa at the Jesse Acuna fundraiser held at the Local Union 995 hall on March 24, 1995.[3] 

Mr. Stripniewicz also alleges that Local Union 995 used union resources to campaign against General President Ron Carey at Local Union 995 membership meetings and steward training sessions held from October 1994 through May 1995.  Because the protests involve, in part, identical factual and legal issues, they were consolidated by the Election Officer.

Ms. Pope essentially alleges that the Convention was a “front” for Mr. Hoffa’s campaign for general president.  The protester complains that the International Teamster Women’s Caucus (“ITWC”) leadership permitted Mr. Hoffa and his supporters to hand out Hoffa buttons and literature during the Convention despite an announcement at the Convention’s start by ITWC President Cheryl Johnson that there was to be no political activity during the meeting.

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The protester alleges that Joint Council 64, Joint Council 43, Local Union 714, Local Union 391, Local Union 191,  Local Union 70 and other affiliate bodies sent delegates to the Convention, most of whom were men, to be “walking billboards” wearing “Hoffa for President” buttons, jackets, and other campaign insignia.  She further states that literature supporting Mr. Hoffa was at a table draped with a “Hoffa for President” banner set up in the registration area.  The table was removed after a few minutes when the delegates complained.

Ms. Pope also alleges that Mr. Hoffa campaigned at a fundraising rally for the Jesse Acuna Defense Fund (“Acuna rally”) held at the Local Union 995 hall on March 25, 1995 while the Convention was going on but at a separate location.  She states that a “Hoffa for President” banner hung on the wall of the Local Union 995 hall behind Mr. Hoffa, who was the rally’s featured speaker.  She complains that many of the people attending the rally had “Hoffa for President” stickers on their clothing or wore “Hoffa” jackets.  The protester alleges that persons who supported Mr. Carey were prevented from attending the rally.  She charges that the Ohio Conference of Teamsters assisted the Hoffa campaign by parking its tractor trailer alongside of the parking lot where the rally was held.[4]

In P-086-LU995-PNJ, Mr. Stripniewicz alleges that the Acuna rally was a “trick” because it was actually a fundraiser for Mr. Hoffa.  The protester also alleges that Local Union 995 Secretary-Treasurer Steven H. Burrus and Business Agent Michael D. Riley have repeatedly campaigned against Mr. Carey at Local Union 995 membership meetings by making such comments as Mr. Carey is “no good for the Local Union or the International Union” and that he is “in bed with” or “in league with” the government.

Joint Council 43 responds that Ms. Pope has not alleged any specific conduct occurring at the Convention that amounts to unlawful campaign activity.  The joint council argues that the Convention attendees wearing Hoffa insignia were exercising their political rights.  It states that Mr. Hoffa’s remarks at the Acuna rally were “non-political.” 

Mr. Hoffa adopts the response of Joint Council 43.  He states that the table with his campaign material was set up without his knowledge.  He states that his appearance at the Acuna rally did not involve any campaign activity and that his comments were “strictly limited to the fund raiser and Acuna.”  Mr. Hoffa claims that persons wearing “Carey Forever” buttons and carrying banners with pro-Carey and anti-Hoffa slogans came to the rally attempting to disrupt the event, but left of their own accord approximately 10 - 12 minutes after they arrived and before the rally program began. 

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October 13, 1995

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Local Union 995 states that the Acuna rally was held at an area outside the Local Union 995 hall and did not involve any campaign activity by Mr. Hoffa.  Contrary to the protester’s allegations, “To the best of knowledge of Local 995, no placards, posters or any other type of campaign material promoting Mr. Hoffa’s candidacy were posted, placed or affixed about the premises of Local 995.”  The local union denies that anyone was prevented from attending the Acuna rally.  Responding to the allegations concerning its membership meetings and steward training sessions, Local Union 995 denies that its officers, employees or agents have campaigned for or against any candidate but admits that its representatives have expressed disappointment with the International Union and that such views are protected under the Labor-Management Reporting and Disclosure Act, as amended.      

The ITWC denies that it has violated the Rules or made a campaign contribution.  Its Convention was designed to be, and was in fact “non-political.”  The ITWC states that it made clear at the Convention that it would not allow discussions of internal union politics at the Convention.  Upon learning that Hoffa supporters had set up a table in the Convention area to distribute Hoffa materials, the Caucus ordered the activity to stop.  Referring to the Acuna rally, the ITWC states that it had nothing to do with any event held outside the Convention.

Joint Council 64 denies “provid[ing] financial support to any member in connection with the IBT Women’s Caucus Convention held on March 24, 1995.”  It states that it has the right to express its opinion on matters affecting the IBT and its members.

R. V. Durham and Local Union 391 state that Mr. Durham and the Local 391 members attending the Convention did not attend the Acuna rally.  They point out that Local Union 391 representatives have the same right to attend the Convention as did representatives of the International Union, Judy Scott and Diana Kilmury, who were also present at the Convention.

Local Union 391 submitted a report from an independent accountant, S. M. Esposito & Company, stating that three of their officers, Joseph Bennetta, Robert Jones III and Joseph Esposito, attended the Convention in Las Vegas.  The local union paid only the expenses incurred by Joseph Esposito to the extent that they were related to his attendance at the meeting.

These protests were investigated by Regional Coordinator Peter V. Marks, Sr. and Election Headquarters Staff Attorney Tara Levy.

The Rules provide at Article VIII, Section 11(a) that all union members retain the right to participate in campaign activities, including the right to openly support or to aid or to campaign for any candidate.  Union members are entitled to wear buttons, t-shirts, hats or similar paraphernalia at union meetings.  These rights are not limited merely because the member is an employee or representative of the union or one of its affiliated bodies.

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There is, however, a difference between wearing campaign insignia and distributing campaign material.  Article VIII, Section 11(a) protects the members’ rights to distribute campaign material and to otherwise solicit support for a member’s candidacy outside a union meeting hall before, during and after a union meeting, regardless of any union policy, rule or practice.  Absent a past practice permitting such conduct inside the union hall, the Rules do not authorize the distribution of campaign literature inside a union hall or meeting, but if such distribution is permitted, it must be done on a nondiscriminatory basis.

Moreover, campaigning must not involve the expenditure of union funds.  Article VII, Section 11 and Article XII, Section 1(b)(3) prohibit the use of any union funds or resources to promote the candidacy of any individual.  Use of union equipment, stationery, facilities and personnel is strictly prohibited unless the union is compensated for such use by the candidate and all candidates are provided equal access.

Article XII, Section 5 contains an exception to the prohibition of using union resources for campaigning, and states:

Nothing herein shall prohibit any candidate from accepting contributions made    by any caucus or group of Union members or any campaign organization of any candidate or prohibit such caucus, group or organization from making such contributions, provided that such caucus, group or campaign organization is itself financed exclusively from contributions permitted under the Rules.

The Election Officer has previously held that an entity otherwise prohibited from making campaign contributions under the Rules may make such contributions if:  (a) it is a caucus of union members; (b) it properly allocates and segregates resources obtained from persons or entities prohibited from making campaign contributions under the Rules from those received from persons or entities permitted to make such contributions; and (c) utilizes only the latter resources with respect to its campaign activities.  In Re Gully, 91 - Elec. App. - 158 (SA) (June 12, 1991), aff’g Sargent, Case No. P-249-LU283-MGN (May 21, 1991).

In order to determine whether activity is protected campaigning or a prohibited campaign contribution, it must first be determined that the activity is considered campaigning on behalf of a candidate.  The Election Officer must find that the subject of the communication or the communicator was a “candidate” at the time of the communication.  Upon a finding of “candidate” status, the Election Officer proceeds to determine whether the communication was used to “support or attack” an individual in his or her candidate capacity.  Martin, et al.,

P-010-IBT-PNJ et seq., (August 17, 1995), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995); Ruscigno, P-067-LU20-EOH (July 19, 1995).  Whether or not a communication was used to “support or attack” a candidate is determined by measuring it against the tone, timing, content and context in which the communication was made.  Martin, supra. 

The Election Officer has previously determined that Mr. Hoffa became a candidate in March 1994.  Crawley, Case No. P-027-LU988-PNJ et seq. (August 23, 1995).  Thus, he was a candidate at the time of the Convention and the Acuna rally.

The Election Officer has also determined that Mr. Carey became a candidate in October 1994.  Martin, supra.  Thus, Mr. Carey a candidate at the time of the Convention, the Acuna rally, and the Local 995 membership meetings and steward training sessions at which campaigning is alleged in P-086-LU995-PNJ.

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I.              Allegations Concerning the ITWC Convention

During the investigation, the following material submitted by the ITWC was reviewed:   the ITWC bylaws adopted March 28, 1992, and amended September 30, 1994; a brochure describing the organization published by the ITWC; the Convention agenda; ITWC Executive Board meeting minutes; the Convention call sent to ITWC members on December 9, 1994; an ITWC mailing describing the tentative agenda for the Convention; the Convention Rules; and the Official Report of the Convention proceedings.               

The investigation disclosed that in the fall of 1991, Teamster women throughout the United States and Canada formed the ITWC to create unity among Teamster women and advance their interests.  Active membership in the ITWC is open to all members in good standing.  Associate membership is available to “all Teamster retirees and associates who support the objectives of the [ITWC].”  The ITWC states that it is not affiliated with any political group, slate of candidates or other caucus within the union.  The ITWC is funded by contributions from local unions and members.  Based on these findings, the Election Officer concludes that the ITWC is a “caucus” within the meaning of Article XII, Section 1(a)(5) of the Rules.

The Convention was held by the ITWC at the Riviera Hotel in Las Vegas, Nevada on March 24-26, 1995.  At the beginning of the Convention, the attendees voted, and ITWC President Cheryl Johnson thereafter announced, that there would be no political activity at the Convention.  The Convention minutes reflect the following announcement by Mr. Johnson:

This is an official business meeting of the International Teamster Women’s Caucus.  The discussions at this meeting must be confined to the business purposes of this Caucus.  This is not a political meeting.  All attendees of this meeting are requested and directed to specifically refrain from any of the following conduct:

(1) making any oral statement or speech which could be construed as supporting or opposing any person for International Union office;

(2) distributing any written material, buttons, pins which could be construed as supporting or opposing any person for International Union office;

(3) using your attendance at this meeting for any purpose other than the business purposes of this Caucus.

No resolutions or motions will be entertained by the Chair which could reasonably be construed as having political purpose.  Any proposed motions or resolutions of that kind will be ruled out of order.

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There is no dispute that persons attending the Convention wore buttons, stickers, jackets and hats promoting Mr. Hoffa.   Several witnesses saw persons during and outside Caucus meetings distributing buttons and other campaign insignia supporting Mr. Hoffa.  While the wearing or distributing of Hoffa insignia at the Convention may violate the policy promulgated by the ITWC Caucus, the Rules do not prohibit union members from wearing campaign buttons at a union caucus meeting.

The Election Officer finds that there is credible evidence that, despite announcing a ban on political activity, the ITWC permitted--or did not stop--Hoffa proponents from distributing campaign material during the Convention at the rear of the meeting room where plenary Convention sessions were held.[5]  Because the ITWC is supported by contributions from local unions, it does not fall within the exception from the prohibition on campaign contributions by a caucus.[6]  By permitting campaign activity at the Convention, the ITWC violated the prohibition that union facilities and resources not be used to assist in campaigning.  Further-more, by providing an opportunity to distribute campaign materials only to the Hoffa campaign, the IWTC violated the requirement of Article VIII, Section 5(a)(4) that candidates be granted equal access to membership meetings for the purpose of campaigning.[7]

There is, however, no evidence to support the protester’s allegation that union resources by the charged individuals, joint councils or local unions set forth in footnote 2     were used to pay the travel and lodging expenses of persons for the purpose of campaigning for Mr. Hoffa at the Convention.  Attendance at the convention was legitimate union business and subordinate union bodies may properly make such expenditures.  See Del Pizzo, Case No. P-727-LU843-NJE (July 18, 1991) (Union funds may be utilized to pay the expenses for a trip undertaken for union business even if incidental campaign activity occurs during the period of travel.)

II.              Allegations Concerning the Acuna Rally

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The Acuna rally was planned by Local Unions 14, 631 and 995 to be held at the Local Union 995 hall to raise money for Jesse Acuna, a Teamster convicted of voluntary manslaughter based on an incident occurring on a union picket line.  The rally was scheduled to coincide with the Convention but was not sponsored by the ITWC.  Mr. Hoffa was the featured guest speaker at the rally.

Several witnesses have submitted photographs of the rally to the Election Office showing a large “Hoffa” banner on the wall of the Local Union 995 hall behind the rally speakers.  The lettering of Mr. Hoffa’s name on the banner and its colors match the “Hoffa ‘96" buttons worn by many of the people attending the rally.  The Election Officer finds that the banner was intended to advance Mr. Hoffa’s candidacy.  Moreover, the fact that those who displayed their opposition to Mr. Hoffa by wearing a “Carey” button or questioned if the rally was a Hoffa rally were prevented from attending the rally indicates a campaign component to this event. There is no evidence, however, that Mr. Hoffa speech at the rally was in any part a campaign speech.  Given the indisputable evidence that the “Hoffa” banner was on the wall of Local Union 995 during the Acuna rally, the Election Officer finds that permitting the display of the banner was a campaign contribution to Mr. Hoffa by Local Union 995.

III.              Allegations Concerning Local Union 995 Membership Meetings and Training Sessions

With regard to the Local Union 995 membership meetings and steward training sessions, Local Union 995 has admitted that its officers, employees and agents have made remarks critical of Mr. Carey’s administration.  These remarks include, “Carey is no good for the local union, or the International” and that he is “in bed with” or “in league with” the government.    However, the Rules do not restrict speech so broadly so as to prohibit criticism of union officers for the manner in which they conduct union business.  Crawley, P-027-LU-988-PNJ, et seq. (August 23, 1995).  The Election Officer does not find that the remarks made by the Local 995 officer and business agent are prohibited campaigning.

IV.              Remedy

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 appropriate remedy, the Election Officer views the nature and seriousness of the violation as well as its potential for interfering with the election process.

Here, the Election Officer has found that the ITWC permitted campaign activity at its Convention, notwithstanding that the Convention program itself did not include campaigning.  The Election Officer believes that, in these circumstances, an order to cease and desist from the prohibited conduct is appropriate.  The ITWC is ordered that at any of its meetings held hereafter, as long as the ITWC is supported with union funds, it shall not permit campaign activity on behalf of any candidate for International Convention delegate or officer at an event sponsored by the ITWC, unless the event is funded by resources received from persons or entities permitted to make campaign contributions under the Rules or unless the ITWC permits such campaign activity on behalf of all candidates on a nondiscriminatory basis.

The Election Officer has further found that the Acuna rally sponsored by Local

Unions 14, 631 and 995 at the Local Union 995 hall, a “Hoffa” banner was displayed on the wall of the Local Union 995 hall.  Here, as well, there is no evidence that the rally program included campaigning.  In these circumstances, the Election Officer believes that an order to cease and desist from the prohibited conduct is appropriate.   Local Unions 14, 631 and 995 are ordered that they are not to use any union facilities to assist in campaigning unless the union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance.  Local Unions 14, 631 and 995 are further ordered that they are not to discriminate or permit discrimination in favor of or against any candidate for International Convention delegate or officer in conjunction with its meetings or otherwise. 

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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.

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, 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

Peter V. Marks, Sr., Regional Coordinator

Glenn Rothner, Associate Regional Coordinator