Protest Decisions

              OFFICE OF THE ELECTION OFFICER

              for the INTERNATIONAL BROTHERHOOD OF TEAMSTERS

              400 N. Capitol Street NW, Suite 855

              Washington, DC   20001

              (202) 624-3500

              (800) 565-VOTE

              Facsimile   (202) 624-3525

Barbara Zack Quindel                                                                                                  Milwaukee Office:

Election Officer                                                                                                                Perry, Lerner & Quindel, S.C.

823 N. Cass Street

Milwaukee, WI   53202

(414) 272-7400

July 10, 1995

Darryl Sullivan, et al.

July 10, 1995

Page 1

Darryl Sullivan, et al.

July 10, 1995

Page 1

Darryl Sullivan, et al.

July 10, 1995

Page 1

RE: Election Office Case No. P-053-LU391-EOH

Gentlemen:

This 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”).[1]  The protestors, Darryl Sullivan, a member of Local Union 745, James Jacob, a member of Local Union 251, and Michael Ruscigno, a member of Local Union 138, allege that Local Unions and other subordinate bodies made impermissible union and employer campaign contributions by paying for the transportation and expenses of numerous persons to travel to an April 19, 1994 rally in front of the IBT headquarters in Washington, DC to protest the proposal of General President Ron Carey to revoke the charters of the IBT’s four Area Conferences.

This protest was investigated by Election Office Staff Attorney Tara Levy.  In support of their protest, the protestors have submitted two newspaper articles and a videotape.  The newspaper articles are “Carey’s Plan to Scuttle Area Conferences is Postponed”, published by Joint Council 3 in April 1994 in the Rocky Mountain Teamster, and “Teamsters Protest Disbanding Area Conferences”, published by Local Union 639 in May 1994 in the Local Vocal.  These publications describe the April 19, 1994 demonstration directed towards stopping the effort by the General President to abolish the Conferences.  The newspaper articles do not describe any campaign activity relating to the 1995-96 delegate and International Officer elections.

Darryl Sullivan, et al.

July 10, 1995

Page 1

The videotape, entitled “Teamster Fat Cats”, is produced by the Teamsters for a Democratic Union and is approximately eight minutes long.  The videotape, which is an apparent effort to persuade IBT members to support the abolition of the Area Conferences, includes brief excerpts from speeches at the demonstration by the former chairs and supporters of the four Area Conferences.  The speakers cite their Teamster credentials, ask for support from the audience for their cause and predict their victory in opposing the proposal to abolish the Conferences.

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 or International Officer position.”

Article VIII, Section 11(c) of the Rules reads:

Union funds, facilities, equipment, stationery, personnel, etc. may not be used 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.  Union officers and employees provided with Union-owned or leased cars, if otherwise afforded the right to utilize those cars for personal activities, may use the cars for campaign activities, provided no costs, or expenses incurred as a consequence, of such use are paid out of Union funds or other prohibited sources.

In determining whether a prohibited contribution has occurred under the Rules, the Election Officer is guided by the cases applying 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.

To ascertain whether a communication constitutes promotion of a candidate in violation of Section 401 (g), the courts have looked to the “tone, content and timing” of the communication.  See, Donovan v. Postal Employees, 556 F. Supp. 529, 533 (D.D.C. 1983); Camarata v.Teamsters, 478 F. Supp. 321 (D.D.C. 1979).

In Camarata, the court rejected the plaintiff’s claim that a union publication constituted prohibited campaign material, noting that it was not published “at a time proximate to the election as to which relief is sought.”  Id. at 330.

Darryl Sullivan, et al.

July 10, 1995

Page 1

Here the speeches and signs displayed at the rally focus on a specific intraunion dispute, the abolition of the Area Conferences, and not on an effort to elect any particular candidate.  The only content reviewed by the Election Officer that could even be construed as an indirect reference to the delegate or International officer elections was in a statement by R.V. Durham, Local Union 391 and Joint Council 9 President, who is shown on the videotape exclaiming, “We’re going to march to the 1996 Convention and we’re going to take care of the problem and throw this damned mob out!”

None of the speakers identified themselves or any other person as a candidate for delegate or International Office.  None of the speakers or demonstrators urged anyone to vote for a particular candidate.  The content of the protest, in the newspaper coverage and the videotape reviewed by the Election Officer, lacked a prohibited partisan message.

Moreover, the April 19, 1994 rally to save the Area Conferences was held far in advance of the 1995-96 elections that are the subject of the Rules.  The overwhelming majority of Local Unions will not conduct their delegate elections until the Spring of 1996.  Nominations for candidates for International office will not be made until the International Convention in July 1996.

Therefore, the tone, the content and the timing of the communications at issue in this protest persuade the Election Officer that there is no basis for finding a violation.

Because the Election Officer does not find the communications at the rally constitute campaign activity, there is no prohibition against the use of union funds to support the transportation and expenses of those attending the rally[2].  The protest was legitimate Union activity and, as such, is not in violation of Article VIII, Section 11.

Based upon the foregoing, the protest is DENIED.

If any interested party is not satisfied with this determination, they may request a hearing before the Election Appeals Master within one day of their 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

Darryl Sullivan, et al.

July 10, 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