Protest Decisions

September 20, 1995

VIA UPS OVERNIGHT

Gene Giacumbo

September 20, 1995

Page 1

Gene Giacumbo

September 20, 1995

Page 1

Re:  Election Office Case No. P-109-IBT-PNJ

Gentlepersons:

A pre-election protest was 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”).

Gene Giacumbo

September 20, 1995

Page 1

By letter dated July 12, 1995, IBT International Vice President Gene Giacumbo charged that IBT General Counsel Judith Scott, Assistant General Counsel John Sullivan, Staff Attorney Earl Brown “and others” have violated Article XII, Section 1(b)(1) of the Rules by using IBT resources to promote the candidacy of General President Ron Carey[1] and to campaign against prospective challengers.  Mr. Giacumbo also alleges that the IBT Legal Department made forbidden employer contributions to Mr. Carey’s candidacy.

Specifically, Mr. Giacumbo states that by filing a position statement[2] with the Election Appeals Master on July 11, 1995, the IBT Legal Department “attempt[ed] to influence the outcome of the Election Master’s decision” to further Mr. Carey’s candidacy.   In his letter, Mr. Giacumbo also refers to a message sent over the TITAN system to Local 988 “demanding action before all appeals had been exhausted.”  As a remedy, Mr. Giacumbo asks the Election Officer to prohibit further involvement in the Election Appeals process by Mr. Sullivan, who filed the position statement on behalf of the IBT, because of conflict of interest allegations.[3]

In response, the IBT contends that while union personnel, funds and equipment were used to file the position statement with the Election Appeals Master, the appeal in that case concerned, in part, the interpretation of a provision of the IBT Constitution.  Thus, the union, although not specifically a party in the protest, had an institutional interest in the appeal.  Such activity by Mr. Sullivan, therefore, was a legitimate use of union resources.

This protest was investigated by Regional Coordinator Peter V. Marks, Sr.

Article XII, Section 1(b) prohibits 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 states that:

Gene Giacumbo

September 20, 1995

Page 1

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.

The Election Officer reviewed the position statement submitted by Mr. Sullivan on behalf of the International Union.  There is nothing in the position statement that could be construed as having the purpose, object or foreseeable effect of influencing the election.  If the protester is arguing that the Legal Department’s very participation in the appeals process affects the election process, this is not the type of activity contemplated as being violative of the Rules.  See, e.g., Article XII 1(b)(2).  Moreover, the International Union has a valid institutional interest in ensuring that its Constitution is properly interpreted and applied.  See Article VI, Section 2 of the IBT Constitution granting the general president the “authority to interpret the Constitution and laws of the International Union . . . .”

The Election Officer also reviewed the July 7, 1995 TITAN message protested by Mr. Giacumbo and sent to the principal officer of Local 988 from Mr. Carey.  Rather than “demanding action before all appeals have been exhausted,” as Mr. Giacumbo characterizes, the Election Officer finds that the letter asked the principal officer of Local Union 988 to advise Mr. Carey whether the local union intended to comply with the Election Officer’s decision.[4]  The communication was a permissible use of union resources to protect the International Union’s institutional interest.

Mr. Sullivan’s participation as an employee of the Election Office in the prior election, without more, is not evidence of an attempt to influence the election.

Mr. Giacumbo also charges Ms. Scott, Mr. Brown “and others” with violating the Rules.  However, no evidence of any violation was presented to the Election Officer despite repeated attempts to contact Mr. Giacumbo to request evidence. 

Based on the foregoing, 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

Gene Giacumbo

September 20, 1995

Page 1

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

Peter V. Marks, Sr., Regional Coordinator