Protest Decisions

September 7, 1995

VIA UPS OVERNIGHT

Betty Rose Fischer, Howard W. Bennett

September 7, 1995

Page 1

Betty Rose Fischer

P.O. Box 128

County Line Road

Worthington, PA 16262

Thomas W. Leedham, Director

IBT Warehouse Division

25 Louisiana Avenue, N.W.

Washington, D.C.  20001

Betty Rose Fischer, Howard W. Bennett

September 7, 1995

Page 1

Howard Bennett, President

Teamsters Local Union 294

Labor Temple

890 Third Street

Albany, NY 12206

George W. Cashman, President

Teamsters Local Union 25

544 Main Street

Boston, MA 02129

Betty Rose Fischer, Howard W. Bennett

September 7, 1995

Page 1

Ed J. Mireles, President

Teamsters Joint Council 92

140 S. Marks Way

Orange, CA 92668

John P. Morris, President

Pennsylvania Conference of Teamsters

2833 Cottman Avenue

Philadelphia, PA 19149

Betty Rose Fischer, Howard W. Bennett

September 7, 1995

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James E. Smith, Secretary-Treasurer

Pennsylvania Conference of Teamsters

2833 Cottman Avenue

Philadelphia, PA 19149

Betty Rose Fischer, Howard W. Bennett

September 7, 1995

Page 1

Re:   Election Office Case Nos. P-090-IBT-PNJ/PGH,

                                                                                                    P-091-LU538-PNJ/PGH

                        P-114-IBT-PNJ/PGH

Gentle persons:

Related pre-election protests were filed with the Election Officer pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).

Betty Rose Fischer, Howard W. Bennett

September 7, 1995

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By letter dated June 8, 1995, Betty Rose Fischer, Secretary-Treasurer of Teamster

Local 538, filed a protest (P-090-IBT-PNJ/PGH) alleging that a resolution enacted by the Pennsylvania Conference of Teamsters at its annual meeting constitutes campaigning in violation of Article VIII, Section 8(a). 

Ms. Fischer also charges that Thomas W. Leedham, Howard Bennett, George W. Cashman and Ed J. Mireles, by speaking at the Conference’s meeting, impermissibly used union resources to campaign on behalf of General President Ron Carey and International Vice President John Morris.  She also states that, because the charged parties are not members of the Pennsylvania Conference of Teamsters, no legitimate union purpose existed for their participation at the Conference meeting.

Subsequently, by letter dated June 13, 1995, James Smith, Jr., representing the Pennsylvania Conference of Teamsters filed a protest (P-091-LU538-PNJ/PGH) against Ms. Fischer for disrupting the Conference gathering.  Mr. Smith charges that, by tape recording speeches delivered at the event, taking notes and filing protests against speakers at the meeting, Ms. Fischer politicized what was otherwise “legitimate Union business.”

Finally, by letter dated July 24, 1995, Ms. Fischer filed a second protest (P-114-IBT-PNJ/PGH) charging that Mr. Smith by filing his protest in P-091-LU538-PNJ/PGH retaliated against her for exercising her right to file a protest under the election Rules. 

These protests were investigated by Regional Coordinators William B. Kane and

Peter V. Marks, Sr.  Copies of the Conference meeting agendas from 1984-1995 and of the resolutions adopted by attendees at past Conferences were obtained during the investigation.  In addition, an audio tape of speeches delivered by the charged parties was reviewed as part of the investigation.

The 1995 Pennsylvania Conference of Teamsters Annual Meeting was held on June 4-7, 1995.  The Conference, which was chartered in 1984, has held such meetings every year since 1984. The purpose of the Conference is “to explore in-depth the issues facing the Teamsters and the labor movement in general.”

The Conference, including speaker meals and lodging (but not speaker travel expenses) was union-financed.  The Conference is financed by a per capita payment of $.45 per member each month.

I.              Conference Resolution

Ms. Fischer contends that a resolution in support of Mr. Carey passed at the Conference supported his candidacy and, thus, denied members and Local Unions of their free-speech rights protected under the Rules.  Conference respondents argue that the resolution passed at the Conference was completely devoid of endorsements or campaigning on behalf of any candidate.

Betty Rose Fischer, Howard W. Bennett

September 7, 1995

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The resolution reads as follows:

RESOLUTION #1

IN SUPPORT OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS

AND GENERAL PRESIDENT RON CAREY

WHEREAS, The International Brotherhood of Teamsters, now in its 92nd year, remains the premier labor organization in the United States and Canada, and

WHEREAS, Overcoming strong opposition, General President Ron Carey has revitalized our International Union, and has taken the lead in revitalizing the U.S. and Canadian labor movements as well,

THEREFORE, BE IT RESOLVED, That the Pennsylvania Conference of Teamsters congratulates General President Ron Carey on his efforts to revitalize our great International Union, and urges him to continue in this work, and

BE IT FURTHER RESOLVED, That the Pennsylvania Conference of Teamsters pledges its continued support to the International Brotherhood of Teamsters and to General President Ron Carey, and

BE IT FURTHER RESOLVED, That Joint Councils Nos. 40 and 53, along with every member Local Union and individual member, pledges to work with the International Brotherhood of Teamsters and with General President Ron Carey towards his goal of a stronger, more united labor movement.

Article VIII, Sections 11(a) and (b) of the Rules protects the rights of IBT members and officers to “participate in campaign activities, including the right to run for office, to . . . support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.”  Section 11(b) adds: “An endorsement of a candidate may be made by a Union officer or employee, but solely in his/her individual capacity.”  Similarly, Article XII,

Section 1(b)(3) states that “[n]o union funds or other things of value shall be used, directly or indirectly, to promote the candidacy of any individual.”

In addition, use of union-financed communications to promote an IBT member’s candidacy for International officer or delegate is prohibited by the Rules.  Article VIII,

Section 8(a) states:  “No publication or communication financed, directly or indirectly, by a Union may be used to support or attack any candidate or the candidacy of any person . . . .”

The Election Officer has consistently held that an endorsement of a candidate is a campaign contribution subject to the Rules.  See, Durham, P-651-IBT, aff’d, 91 - Elec. App. - 183 (September 17, 1991); Scott, P-822-IBT, aff’d, 91 - Elec. App. - 198 (October 9, 1991); Gebow, P-963-LU677-ENG, aff’d, 91 - Elec. App. - 212 (October 28, 1991); and Custer,

P-1098-LU673-CHI (November 18, 1991). 

In Gebow, a resolution was passed at the Local Union’s membership meeting in support of R. V. Durham for IBT general president.  In Custer, a notice was posted on all union bulletin boards stating:  “Teamsters Local 673's Executive Board Unanimously Endorse the Shea-Ligurotis Action Team.”  In both cases, the Election Officer held that the communications constituted an improper campaign contribution under the Rules.

Betty Rose Fischer, Howard W. Bennett

September 7, 1995

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In each of these cases, there was an explicit reference of support for a candidate in the context of the International Officer elections. 

The issue before the Election Officer is whether the resolution passed by the Pennsylvania Conference is any endorsement of Mr. Carey as a candidate for general president.  The Election Officer finds it is not.[1]  The resolution pledges the Conference’s support of

Mr. Carey in his capacity as general president and congratulates him for his work on behalf of the International Union.  In this context, the Election Officer finds that the resolution was intended to express the Conference’s solidarity with the general president and the International Union rather than to support his candidacy.

In reaching this conclusion, the Election Officer considered it persuasive that the resolution’s text is not unlike those passed at earlier Conference meetings urging support of the union and its highest ranking officers.  Each year since 1989, a resolution expressing the Conference’s solidarity with the International Union and its officers had been passed by previous gatherings of the Pennsylvania Conference.  The prior resolutions, always entitled “Resolu-

tion #1,” have a first paragraph citing the IBT as a “premier labor organization” (1989, 1991, 1995), “leading labor organization” (1990, 1993, 1994) or the “most powerful advocate for workers rights” (1992).   The subsequent text of each resolution contained references to the IBT’s struggles with the governments in both the United States and Canada as well as with anti-union groups and leaders in each country.

These resolutions contained language complimenting IBT officers.  In 1988, a “Resolution Supporting Jackie Presser and Weldon Mathis and Their Programs . . . salute[d] General President Presser and General Secretary-Treasurer Mathis for their tireless efforts and pledge[d] [the Conference’s] full support to their programs and policies.”  It declared that their efforts had helped to propel IBT political fund raising to the forefront of labor’s political action groups.   A 1993 resolution declared that “General President [Carey] is doing an outstanding job.”  The 1994 resolution noted that General President Carey “has successfully implemented his commitment to democratic participation by the membership . . . .”

Based upon the foregoing, Ms. Fischer’s protest with respect to the resolution is DENIED.

II.              Speakers at the Conference

Betty Rose Fischer, Howard W. Bennett

September 7, 1995

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Ms. Fischer also charges that four scheduled speakers at the Pennsylvania Conference of Teamsters Annual Meeting used union resources to campaign on behalf of General President Ron Carey and International Vice President John Morris, who is also President of the Pennsylvania Conference of Teamsters.  Specifically, Ms. Fischer charges that the speeches delivered by Mr. Leedham, Mr. Bennett, Mr. Cashman and Mr. Mireles were campaign speeches. Besides the content of their remarks, Ms. Fischer also notes that none of these speakers are members of the Pennsylvania Conference, and therefore, they had no legitimate business purpose for attending the meeting.[2]

Article VIII, Section 5 concerns candidates’ access to membership meetings.  Local Unions do not have to permit candidates to speak at membership meetings for the purpose of campaigning.  However, if a candidate is permitted to speak, equal access must be provided to other candidates running for the position for which such campaigning was permitted.

An analysis under each of these sections of the Rules rests upon whether the communications by Mr. Leedham, Mr. Bennett, Mr. Cashman and Mr. Mireles at the Conference meetings constituted “campaigning.”  This inquiry must begin with the determination of whether or not the subject of the communication or the communicator was a “candidate” at the time of the speech.  Upon a finding of “candidate” status, the Election Officer proceeds to determine whether the communication was used to “support or attack” a candidate or his candidacy.  Sullivan, P-053-LU391-EOH (July 10, 1995); Ruscigno,

P-067-LU20-EOH (July 19, 1995); Martin, supra.

To determine if a member is a candidate, 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, supra.

The Election Officer has no evidence that Mr. Morris, Mr. Leedham, Mr. Bennett,

Mr. Cashman and Mr. Mireles were candidates at the time they made speeches to the Pennsylvania Conference.

In his speech, Mr. Leedham criticized former International Union officials for their treatment of issues affecting Warehouse Division workers.  He praised Mr. Carey’s and

Mr. Morris’ stewardship over the union, while also praising the Pennsylvania Conference for the unity it had demonstrated in the wake of difficulties facing the IBT.  He stated that the Conference stood out as an example of how IBT members across the country should come together in these difficult times.

Betty Rose Fischer, Howard W. Bennett

September 7, 1995

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Mr. Cashman spoke of the need for IBT leaders to show courage in challenging members to vote to increase their monetary contributions to the union so that it can operate from a position of fiscal strength on bread-and-butter issues.  He spoke glowingly of Mr. Carey’s administration, contrasted the union’s current state with its past and referred to the “Teamsters Caucus.”[3]

Mr. Bennett spoke about the importance of Teamsters being active in legislative issues.  While pointing out that every IBT member has a right to agree or disagree with the IBT’s current political agenda, he urged all Teamsters to come together in solidarity.

While praising Mr. Carey and Mr. Morris as well as the establishment of a new IBT Joint Council in California, Mr. Mireles focussed the majority of his remarks on negotiating a good collective bargaining agreement for the membership.

The importance and difficulty of distinguishing between campaign speech and other forms of verbal communication was previously addressed by the Election Officer:

It directly affects how incumbent officers . . . may use the powers of [their] office and the financial resources of the union.  Camarata v. Int’l Bhd. of Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979), aff’d, 108 L.R.R.M. 2924 (D.C. Cir. 1981).  Accord, Donovan v. Metro. Dist. Council of Carpenters.  It directly affects the extent to which “union members are free to discuss union policies and criticize the leadership without fear of reprisal” in a “vigorous debate” that must take on increased importance as an election approaches.  United Steelworkers of America v. Sadlowski, 457 U.S. 102, 112 (1982).  The balance between protected speech and impermissible campaigning must be carefully struck.  Restrictions on speech must not be read so broadly as to restrict the right and responsibility of union officers to conduct union business.  Nor should the Rules prohibit opponents of those officers from criticizing those policies. 

Crawley, P-027-LU-988-PNJ, et. seq. (August 23, 1995).

The substantial majority of the remarks by Mr. Leedham, Mr. Bennett,

Mr. Cashman and Mr. Mireles related to relevant union business.  See, Sheldon v. O’Callaghan, 335 F.Supp. 325 (S.D.N.Y. 1971).  While all four speakers spoke glowingly of Mr. Carey and Mr. Morris as General President and International Vice President, respectively, the comments made did not support Mr. Carey’s candidacy.

Only Mr. Cashman made reference to the “Teamsters Caucus.”  While the Real Teamsters Caucus may be comprised of IBT members opposed to Mr. Carey’s policies, Mr. Cashman’s isolated remark did not attack the candidacy of any IBT member.  As stated in Crawley, supra: “[L]atitude must be afforded both incumbents and opponents to conduct union business and to critically comment on the conduct of union business . . . .” 

Betty Rose Fischer, Howard W. Bennett

September 7, 1995

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The Election Officer also rejects Ms. Fischer’s argument that these speakers had no legitimate business purpose for attending the meeting.  The Election Officer’s investigation revealed a historical pattern of including non-conference speakers at the meeting.  Every annual meeting since 1985 has included on its agenda guest speakers representing union interests outside the Conference.[4]   Past speakers from outside Pennsylvania have represented the International Union Departments, Joint Councils, Local Unions and organizations not connected to the IBT.  According to Conference representatives, the purpose of including outside speakers has been to establish and strengthen relationships between IBT entities.

For the foregoing reasons, Ms. Fischer’s protest is DENIED.

II.              Charges Filed By Mr. Smith on June 13, 1995 in P-091-LU538-PNJ/PGH

Representing the Pennsylvania Conference of Teamsters, Mr. Smith charges that

Ms. Fischer disrupted and politicized the Conference by tape recording speeches, taking notes and filing a protest against speakers at the Conference. This protest was filed five days after

Ms. Fischer filed her protest in P-090-IBT-PNJ/PGH.

Ms. Fischer did tape record the proceeding, but her activity did not disrupt the Conference.  Mr. Smith also kept a tape recorder at the dais during the meeting.  It is unpersuasive that activity engaged in by Mr. Smith could be simultaneously disruptive when conducted by Ms. Fischer.

The Election Officer consistently has held that filing a protest is protected activity and it is a violation of the Rules to discipline or to take any other adverse action against an IBT member for filing a protest with the Election Officer.  Puglisi, P-1074-LU64-ENG

(November 25, 1991), aff’d, 91 - Elec. App. - 242, aff’d, 88 CIV. 4486, slip op. (S.D.N.Y. 1992); Crawley, P-098-LU988-PNJ, aff’d, 95 - Elec. App. - 1 (July 14, 1995).  Therefore, Mr. Smith’s contention that Ms. Fischer’s filing of a protest with the Election Officer itself violated the Rules is rejected.

For the foregoing reasons, Mr. Smith’s protest is DENIED.

III.              Charges Filed by Ms. Fischer On July 24, 1995 in P-114-IBT-PNJ/PGH

Ms. Fischer’s protest in P-114-IBT-PNJ/PGH charges Mr. Smith with retaliating against her for exercising her right to file a protest under the election Rules.  Mr. Smith alleges that

Ms. Fischer’s protest is untimely under Article XIV, Section 2(b).

A letter acknowledging receipt of P-091-LU538-PNJ/PGH and notifying all parties of the charges was mailed by UPS overnight delivery on June 14, 1995.  Although Ms. Fischer received notice on June 15, 1995, this protest was not filed with the Election Officer until

July 25, 1995.

The Rules state that, “preelection protest . . . must be filed within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or such protests shall be waived.”  Article XIV, Section 2(b).  While there is no question that Ms. Fischer’s protest is untimely, at this early point in the process, the Election Officer will review the protest on its merits to educate the members concerning the breadth of the protections afforded under the Rules.

The filing of a protest, regardless of its ultimate merits, is “absolutely privileged” activity under the Rules.  See, Crawley, supra.  Mr. Smith, therefore, is privileged to file a protest over Ms. Fischer’s filing of a protest, and such action will not be treated as retaliatory under the Rules.

For the foregoing reasons, Ms. Fischer’s protest is DENIED.

Based upon the foregoing, the protests in P-090-IBT-PNJ/PGH, P-091-LU538-PNJ/PGH and P-114-IBT-PNJ/PGH are DENIED.

Betty Rose Fischer, Howard W. Bennett

September 7, 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.

Madge, 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

Peter V. Marks, Sr., Regional Coordinator

William B. Kane, Regional Coordinator