August 23, 1995
VIA UPS OVERNIGHT
James Jacob, et al.
August 23, 1995
Page 1
James Jacob
1377 Sassaquin Avenue
New Bedford, MA 02745
Darryl Sullivan
2059 Richmond
Arlington, TX 76014
Michael Ruscigno
302 Summit Avenue
Jersey City, NJ 07306
T.C. Stone
Teamsters Local Union 745
1007 Jonelle St.
Dallas, TX 75217
Paul Levy, Esq.
Public Citizen Litigation Group
2000 P Street, NW, Suite 700
Washington, DC 20036
James Hicks, Esq.
Hicks & Associates
1420 West Mockingbird Lane, Suite 760
Dallas, TX XXX-XX-XXXX
James Jacob, et al.
August 23, 1995
Page 1
RE: Election Office Case No. P-060-LU745-EOH
DECISION ON REMAND
Gentlemen:
This matter comes before the Election Officer on a remand from the Election Appeals Master, In re Sullivan, 95 - Elec. App. - 6 (KC) (August 14, 1995). This protest was initially filed pursuant to Article XIV, Section 2(a) of the Rules for the 1995-96 IBT International
James Jacob, et al.
August 23, 1995
Page 1
Union Delegate and Officer Election (“Rules”).[1] The protesters, James Jacob, a member of Local Union 251, Darryl Sullivan, a member of Local Union 745, and Michael Ruscigno, a member of Local Union 138, alleged that Local Union 745 Secretary-Treasurer T.C. Stone, Local Union 745 President Charles Rogers, and the Local Union’s attorney, James L. Hicks, Jr., Esq., made forbidden union and employer campaign contributions by using their control of the podium at Local Union 745 membership meetings to attack General President Ron Carey. They also alleged that Local Union 745 made unlawful campaign contributions by producing or distributing “Impeach Ron Carey” t-shirts and by making sizeable payments to Attorney Hicks which have been diverted to the Real Teamsters Caucus for campaign activities. The protest refers only to meetings which took place in 1992 and 1993.
The Election Officer denied the protest in a decision dated July 21, 1995, finding that "it is permissible for a Union member to criticize the manner in which the incumbent conducts [union] business." Op. at 3. The Election Officer also took into consideration that "the remarks at issue all occurred in 1993, far in advance of the elections that are the subject of the Rules." Id. Finally, the Election Officer noted that the protesters had not submitted any evidence to support their claims that the Local was unlawfully producing and distributing anti-Carey t-shirts, or improperly supporting the Real Teamsters Caucus, or advocating on behalf of a candidate through payments to the Local Union attorney. Id.
The protestors filed an appeal with the Election Appeals Master pursuant to
Article XIV, Section 2(i) of the Rules. In his decision, the Election Appeals Master found that the decision of the Election Officer did not make sufficient factual findings to apply the tone, timing and content test to the remarks alleged by the protesters to be improper campaigning. Slip op. at 3. The Election Appeals Master further noted that if the content and tone of the remarks are at issue, the Election Officer should review the videotapes which were alleged to exist of the meetings where the remarks were made. Id. at 4 n.5.
James Jacob, et al.
August 23, 1995
Page 1
Finally, the Election Appeals Master found that the decision could not deny the protests on the grounds that Mr. Carey was not a candidate at the time of the remarks, where the decision made no factual findings as to when Mr. Carey was a candidate. The case was remanded for further factual findings consistent with the Election Appeals Master's decision.
Pursuant to the remand, the Election Officer has conducted further investigation and reaffirms her initial finding with the following modifications.
The Rules, at Article XII, Section 1(b), prohibit employers and unions from making any “campaign contribution,” which is defined by the Rules 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 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.
James Jacob, et al.
August 23, 1995
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As stated in Ruscigno, Case No. P-067-LU20-EOH (July 19, 1995), in determining whether a union-financed publication violates the Rules, the Election Officer must first determine if the subject of the publication was a "candidate" at the time the communication was made.[2] In order to determine candidate status within the meaning of the Rules, the Election Officer first determines if and when a member is “actively seeking nomination or election,” including a declaration or announcement of candidacy or other statement of intent to seek a delegate, alternate delegate, or International officer position. The Election Officer further reviews the Campaign Contribution and Expenditure Reports (“CCER”) that are required by Article XII, Section 2(a) to ascertain if and when the member has accepted any contributions or expended any funds in furtherance of his or her candidacy. The Election Officer also reviews other indicia of candidacy which may be revealed by the investigations conducted through her office. Martin, P-010-IBT-PNJ et al. (August 17, 1995).
In Martin, supra, the Election Officer found that Mr. Carey became a candidate not later than October 1994. Here, the protesters have not presented any evidence to show that Mr. Carey was a candidate prior to that time, nor has the further investigation of the Election Officer uncovered any such evidence.[3] As a result, the Election Officer concludes that at the time of the Local 745 meetings in 1992 and 1993 which are the subject of this protest,
Mr. Carey was not a candidate within the meaning of the Rules.
Absent a finding that a member is a "candidate" under the Rules, any inquiry into allegations of improper campaigning must end. In Re: Sullivan, 95 - Elec. App. - 6 (KC). Campaigning is more than just communication with the members; it involves advocacy of the nomination and election or defeat of a candidate for office. If there is no candidate to support or attack, then by definition the communication in question cannot be considered campaigning, but rather an exercise of free speech recognized and protected under LMRDA, 29 U.S.C. §411(a). See, United Steelworkers v. Sadlowski, 457 U.S. 102, 112 (1982); Salzhandler v. Caputo, 316 F.2d 445, 448-49 (2d Cir. 1962), cert. denied, 375 U.S. 946 (1963).
For the foregoing reasons, the protest on remand is DENIED.
James Jacob, et al.
August 23, 1995
Page 1
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: Kenneth Conboy, Election Appeals Master
Dolores C. Hall, 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 alleges 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, a "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] In other matters pending before the Election Appeals Master, counsel for the protesters has argued that by combining Definition 5 “contribution” and Definition 6 “candidate” under the Rules, “a candidate is either a member who is actively seeking office or one who accepts expenditures of money or other things of value whose object or foreseeable effect is to influence the election of that member to a covered office.” “Memorandum of Appellants,” Election Office Case No. P-066-JC3-EOH. Thus, the protesters have argued that the publication of attacks upon Mr. Carey in a union-financed publication is an expenditure of money which has the foreseeable effect to negatively influence Mr. Carey’s election, thus making Mr. Carey a “candidate” under the Rules. The Election Officer has concluded that neither the language nor the intent of the “candidate” definition is to transform a member into a candidate without any affirmative act on the member’s part. Thus, under the definition, a candidate is a member “actively seeking nomination or election” through an announcement or other indication of intent, or a member who has “accepted” a campaign contribution, directly or indirectly, through permitting the solicitation of funds or support on his or her behalf.