Protest Decisions

October 12, 1995

VIA UPS OVERNIGHT

James P. Hoffa & Robert D. Walston

October 12, 1995

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James P. Hoffa & Robert D. Walston

October 12, 1995

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Re:  Election Office Case Nos.              P-133-IBT-CHI

P-138-IBT-CHI

James P. Hoffa & Robert D. Walston

October 12, 1995

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Gentlepersons:

Two related pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election ("Rules").  P-133-IBT-CHI was filed by James P. Hoffa, a candidate for general president, and P-138-IBT-CHI was filed by Robert D. Walston, a member of Local Union 743.  Because the protests concern identical facts and legal issues, they were consolidated by the Election Officer.

The protests allege improper campaign activity at the 26th Union Stewards’ Banquet & Awards Ceremony ‘95 (“the Banquet”) held by Local Union 743 on August 19, 1995 at the Hyatt-Regency Hotel in Chicago.  The protesters allege General President Ron Carey, General Secretary-Treasurer Tom Sever, Local Union 237 President Carroll E. Haynes, International Trustee for Local Union 743 Eddie Kornegay, and Joint Council 92 President Ed J. Mireles used union resources to campaign at the Banquet and that Local Union 743 permitted campaigning there.[1]  The protesters claim these individuals, candidates for International office on the slate with Ron Carey, staged a “Ron Carey political campaign road show” at an event sponsored by Local Union 743, one of the largest local unions in the IBT.  The protesters allege that Local Union 743 discriminated against the opponents of Mr. Carey and his slate by failing to invite them to speak at the Banquet.

In P-133-IBT-CHI, Mr. Hoffa argues Ron Carey’s speech at the Banquet is quite similar to the July/August 1995 Teamster magazine article found violative of the Rules in Martin, et al., P-10-IBT-PNJ, et seq. (August 17, 1995), aff’d 95 - Elec. App. - 18 (KC) (October 2, 1995).  Mr. Hoffa claims that in both communications, Mr. Carey campaigned by trumpeting the goals and accomplishments of his administration and urging members to vote for delegates who will maintain the same objectives and achievements.  Mr. Hoffa also argues that because neither Mr. Carey, Mr. Sever, Mr. Mireles nor Mr. Haynes has ever attended an event sponsored by Local Union 743, their recent appearance at Local Union 743 in advance of the local union’s delegate elections indicates that their purpose there was to campaign on behalf of delegates who support the Carey slate.

The protesters further allege that Local Union 743 discriminated against certain of its members who support Mr. Hoffa by denying them permission to attend the Banquet.  The protesters allege that the local union permitted each of its stewards to bring a guest to the Banquet but excluded certain persons who supported Mr. Hoffa when it was learned that they would be attending as guests.  Finally, Mr. Hoffa charges that Local Union 743 unlawfully used union resources to pay for the program booklet handed out at the Banquet, which included campaign material on behalf of Mr. Carey on a page with his greeting.

James P. Hoffa & Robert D. Walston

October 12, 1995

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In response, the IBT admits that it paid for the general president and general secretary-treasurer to attend the Banquet but denies that either officer campaigned there.  The IBT notes that Local Union 743 has been under International trusteeship since August 1994.  The IBT describes the Banquet as the “culmination of an educational program to improve the stewards’ performance and to train new stewards.”  The IBT asserts that “[t]he attendance of the General President and other elected IBT officials at large steward and other members’ gatherings is a long[-]standing tradition in the IBT and is a legitimate activity.”  The Union acknowledges that President Carey has not attended a Stewards’ Banquet at Local Union 743 before, but points out that he has attended at least 30 membership or stewards’ dinners at other local unions in the last three years.

The IBT states that Mr. Carey’s speech emphasized the “important role” that stewards and members have in “revitalizing Local 743 and the International,” and the “need for reform at the local and International level, and the importance of restoring democracy.”  The legitimacy of the speech, it argues, is also reflected in the absence of any reference to any person’s candidacy, or any expression of support or attacks on any actual or potential candidates.   Mr. Sever, claims the IBT, spoke briefly, “expressing his pleasure at being there and his belief in the importance of union stewards.”

Local Union 237 President Carroll E. Haynes denies that he campaigned at the Banquet.  He states he was invited to the Banquet because he had assisted in the Local

Union 743 stewards’ training program and had invited the International Trustee of Local Union 743 to attend a stewards’ training program at Local Union 237.  He states that his local union paid the expenses of his trip to attend the Banquet. 

Local Union 743 states that the only member barred from attending the Banquet was Robert Walston, who was properly excluded because the local union had received information that he planned to disrupt the Banquet.  According to the local union, Mr. Walston had disrupted the previous Local Union 743 membership meeting in July 1995 and was observed organizing a picket line outside of the Banquet hall.

Regional Coordinator Julie E. Hamos investigated the protests.  As part of the investigation, a videotape of the Banquet program was reviewed, which included the introduction of the persons on the dais, the remarks of visiting guests and the keynote address by Mr. Carey.

Article VIII, Section 5 of the Rules governs candidate 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.  See Article VIII, Sections 5 (a)(2) and (a)(4).

Article VIII, Section 11(c) and Article XII, Section 1(b) both prohibit the use of union funds, facilities and equipment to assist in campaigning unless the union is reimbursed at fair-

market value and equal access to such assistance as provided to all candidates.

James P. Hoffa & Robert D. Walston

October 12, 1995

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These sections become applicable if the communication at issue constitutes “campaign-ing,” which requires a finding that the subject of the communication 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, supra; Ruscigno, P-067-LU20-EOH

(July 19, 1995); Sullivan, P-053-LU391-EOH (July 10, 1995). 

The Election Officer has previously determined that Mr. Carey became a candidate for general president in October 1994.  Martin, supra.  The Election Officer has also determined that at present, there are two other candidates for general president:  Mr. Hoffa became a candidate in March 1994, Crawley, Case No. P-027-LU988-PNJ, et seq. (August 23, 1995); and Sam Theodus became a candidate on December 27, 1994, Jacob, Case No. P-071-LU391-EOH (September 7, 1995).

“The Ron Carey Slate” filed a Declaration of Affiliation with a Slate pursuant to the Rules on August 4, 1995.  Because Mr. Sever, Mr. Kornegay, Mr. Haynes and Mr. Mireles are listed on the Declaration as members of the Carey slate, the Election Officer finds them to be candidates beginning August 4, 1995, and thus, on August 19, 1995 when the Banquet was held.

Whether a communication “supports or attacks a candidate,” as prohibited by the Rules, is determined by looking at its tone, content, timing and context.  Martin, supra at

pp. 13-15.  In Martin, the Election Officer found a July/August 1995 Teamster magazine article entitled “The Future of Teamster Reform,” and subtitled “Why You Should Take Part in Choosing Delegates to the 1996 International Union Constitutional Convention,” violated Article VIII, Section 8(a) of the Rules.  The article contained a bullet-point list of the accomplishments of Mr. Carey and his administration, such as “fighting corruption” and “cutting waste and outrageous pay for officials.”  After each accomplishment, the article posed a question.  For example, after “fighting corruption”, the reader was asked, “Do you want the 1996 Convention to protect or undermine the authority of the elected General President and General Executive Board to fight corruption?”  After “cutting waste and outrageous pay for officials,” the article asked, “Do you want the 1996 Convention to protect or undermine the authority of the elected General President and General Executive Board to cut waste and outrageous pay for officials?”

The Election Officer found the article connected Mr. Carey and his administration’s accomplishments to the delegate elections, which were already underway in some local unions.  She noted, “The linking of the accomplishments of Mr. Carey with the urging of members to become Convention delegates makes this article more akin to material which might be found in a campaign flyer for Mr. Carey than in a news report or editorial item.”  Id. at p. 28.

              The August 19, 1995 Banquet was an occasion to congratulate stewards who had completed training programs put on by Local Union 743.  About 800 - 900 people attended, including about 300 Local Union 743 stewards and their guests.  On the dais with

James P. Hoffa & Robert D. Walston

October 12, 1995

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Mr. Kornegay were Ron Carey, Tom Sever, Carroll E. Haynes, Ed J. Mireles, Local 743 Director of Operations Elijah Buffington, Local Union 743 Business Agents Philip Johns and Clinton Fluker, Local Union 705 Secretary-Treasurer Gerald Zero,[2] Illinois State Senate Minority Leader Emil Jones, IBT National Black Caucus Chair Claude Brown, and IBT Trade Show and Concession Department Chair Joseph Yeoman.

The Banquet program began with Trustee Kornegay introducing Banquet guests by describing each guest’s position in their respective organization.  Mr. Kornegay’s remarks were factual and made no mention of any person’s candidacy or campaign.  His remarks were not campaigning.

The Banquet program continued with a video presentation entitled “Local 743 in Action,” followed by brief remarks from Mr. Sever, Mr. Haynes, and Mr. Mireles.  Each congratulated the Local Union 743 stewards who had completed training programs and emphasized the importance of the role played by stewards.  None of their remarks could be termed “campaigning.”  There is no evidence that any of these guests campaigned at this or any other time during the Banquet.[3]

Next on the program was the presentation of certificates of training to the stewards, followed by the keynote speaker, Mr. Carey.  Mr. Kornegay introduced Mr. Carey, noted his busy schedule and asked that he be welcomed.  Mr. Kornegay did not campaign at this or any point during the Banquet program.

James P. Hoffa & Robert D. Walston

October 12, 1995

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Mr. Carey began his address by saluting the stewards who had completed their training.  He then described changes taking place in the local union and in the International.  Mr. Carey applauded the growing emphasis on the needs and involvement of union members, on unity and on solidarity.  He described the need for union members to work together to negotiate contracts, to enforce contracts through the use of grievance procedures and to organize new members.  Mr. Carey called on members to pressure their Congressional representatives, citing the success of lobbying efforts during the campaign to organize Overnite drivers.  He spoke of the need to provide research and education to support the goals he promoted for the union.  He told the audience that the International wanted to improve their health and pension benefits.  He spoke proudly of the upcoming civil rights conference at the International headquarters, noting that it was the first of its kind, and also about a series of Teamster women’s conferences held in Chicago.  He described his administration’s success at cutting excessive salaries paid to Teamster officials and keeping the International’s expenditures in line with its income.  He emphasized the necessity of members becoming more involved in the union.

He concluded his remarks, however, with the following statements:

You have the power to make sure we don’t go back to corruption and weakness of the past.  You have the power to make sure our Union continues to change.  You have the power to rebuild the Teamster unity and strength.  Yes, you have the power now and this is your Union and the future of the Union is in your hands.

Later this year and next year the members of all Local Unions will be electing delegates to the 1996 Teamsters Convention. These delegates will either continue to vote for the reforms that we’ve put into place, the reforms that have taken over three years that I’ve been dragged through the street.  Or, you’re right, they can turn the clock back and undermine our fight against corruption and dictatorship.

I know and I have the confidence that you will elect delegates who will stand up for change and who will fight to keep this Union moving forward; delegates who know that this Union belongs to the members and that it is the members who will always come first; delegates who will preserve and keep the progress and stand up and fight to keep this Union moving forward.  This is your Union and its time for us, all Teamsters, to send a message to those who would stand in our way that we’ve only just begun to fight.  

The format for the conclusion of Mr. Carey’s remarks are very similar to the article in Teamster magazine held improper in Martin, supra, because “[it] connect[ed] Mr. Carey and the accomplishments of his administration to the upcoming delegate elections.”  Id. at p. 27.  While most of Mr. Carey’s remarks were not campaigning, his concluding remarks--that the future of the union lies in the membership’s ability to elect convention delegates and that the members should use this power to continue the reforms of the Carey administration--were campaigning.  Mr. Carey explicitly tied his remarks to the delegate elections when he advised the audience, “Later this year and next year, the members of all Local Unions will be electing delegates to the 1996 Teamster Convention.”

James P. Hoffa & Robert D. Walston

October 12, 1995

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To paraphrase Martin, supra, if Mr. Carey’s speech had simply urged participation in the election for delegates and cited the important issues that would be ultimately determined as a result of the elections, then he would have remained within his right “to advise and report to the membership on issues of general concern.” Id. at p. 28.   See, Camarata v. Int’l Bhd. of Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979), aff’d mem., 108 L.R.R.M.(BNA) 2924 (D.C. Cir. 1981).  However, although only a relatively short portion of his remarks, by expressly encouraging members to vote for delegates who will maintain the objectives of his administration, Mr. Carey was campaigning.

While permitting Mr. Carey to campaign at the Banquet, Local Union 743 failed to invite Mr. Hoffa or Mr. Theodus to speak or provide them with an opportunity to hear

Mr. Carey there.  Local Union 743 has therefore failed to afford equal access to Mr. Carey’s opponents in violation of Article VIII, Section 5 of the Rules.

It is undisputed that Mr. Carey used union funds to attend the Banquet.  Accordingly, union resources were utilized to assist in campaigning.  The Election Officer finds no evidence that any other person campaigned at the Banquet.

The Rules afford every member the right to openly support or oppose any candidate for delegate or International officer without retaliation.  Article VIII, Section 11.  The protesters allege that Valerie Colvett, Sam Matyas, Muriel Carroll, Jerry Bruduss and Mr. Walston, all of whom are former Local Union 743 business agents discharged from their positions after the local union was placed in trusteeship, were excluded from the Banquet because of their support of Mr. Hoffa.   International Trustee Kornegy admits that the local union excluded

Mr. Walston from the Banquet, and explains that he did so because of his fear that

Mr. Walston would disrupt the Banquet.  While Mr. Walston provided the investigator with firsthand information on his own exclusion, he advised that he had merely heard from others that the other Local Union 743 members had been excluded.  Of these persons, he provided a telephone number only for Ms. Colvett, who did not return several calls from the investigator.

Mr. Walston denies that he has been a disturbance, although he admits, and other witnesses verify, that he has been vocal in his opposition to Mr. Kornegy and that he did organize a picket line outside in front of the Banquet hall.  The Election Officer finds

Mr. Walston was the only Local Union 743 member excluded from the Banquet.  The Election Officer further finds that Mr. Walston was excluded because of the local union’s concern, based on experience, that Mr. Walston would disrupt the banquet, not because of his opposition to the Carey campaign. 

The Election Officer has reviewed the page of the Banquet program booklet cited by Mr. Hoffa in his protest.  The page contains a message of congratulations from General President Carey to the stewards, and expresses his appreciation for the importance of their work.  The page contains a small picture of Mr. Carey and the IBT logo.  The contents of the page are entirely appropriate given the occasion of the Banquet, and are not campaigning.             

Consistent with the foregoing, the consolidated protests are GRANTED, insofar as it is alleged Local Union 743 violated Article VIII, Section 5 by permitting Mr. Carey to campaign at the Banquet without granting the other candidates for general president equal access and permission to hear Mr. Carey speak, and further, insofar as Mr. Carey made a campaign appearance financed with union funds. In all other respects, the protests are DENIED.

James P. Hoffa & Robert D. Walston

October 12, 1995

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

In In Re: Riga, 91 - Elec. App. - 173 (SA) (August 1, 1991), the Independent Admini-strator addressed a case in which an IBT vice-president, also a candidate for general president,  gave a campaign speech to a group of Joint Council 25 delegates while in Chicago attending a holiday celebration of the joint council.  The Independent Administrator ruled that a holiday celebration that the candidate attended was “clearly the type of function that incumbent Union officers may feel obligated to attend as part of their official activities.”  However, to remedy the impermissible campaining that occurred in the context of this legitimate union business, the Independent Administrator ordered that the local union afford the other candidates for general president the opportunity to attend a similar gathering and address the members with a 15-minute presentation.  The Independent Administrator further ordered that the campaign that violated the rules pay the travel expenses of the other candidates:

The only just remedy here is one that both punishes the wrongdoers and makes the two aggrieved candidates whole.  It is clear that Shea and Ligurotis, political allies, acted together to provide Shea the opportunity to make his presentation . . . to advance their political aims.  Thus, it is the Shea-Ligurotis campaign that should bear the cost of transporting the other candidates to Chicago and providing them with lodging.

Id. at 10-11.  The Election Officer finds that a similar analysis applies in this case.  Mr. Carey had a legitimate reason to attend the stewards’ banquet as part of his official activities.  The campaigning, while certainly a violation of the Rules, does not render Mr. Carey’s attendance at the banquet a pretext for campaigning. However, having utilized his legitimate attendance at the stewards’ banquet in part for campaign purposes, an opportunity must be given to Mr. Carey’s opponents to have similar access to the membership.

Accordingly, to remedy this violation, the Election Officer directs Local Union 743 to provide the other candidates for general president access to its membership similar to that provided Mr. Carey.  Specifically, Local Union 743 is directed to offer James P. Hoffa and Sam Theodus, or their representatives, an opportunity to make a 15-minute presentation on a topic of their own choosing.  The order of presentations shall be determined by lot or in any other acceptable manner to these candidates.  These presentations shall be at a facility provided by Local Union 743 to which all of its stewards and their guests are invited.  The Election Officer orders that Local Union 743 permit any of its members to attend the event.

In addition, the Election Officer orders the transportation costs for Mr. Hoffa and

Mr. Theodus, or their representatives, be borne by the Carey campaign.  

James P. Hoffa & Robert D. Walston

October 12, 1995

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The Election Officer directs that her order be implemented as follows:

1.  Local Union 743 Trustee Eddie Kornegay is directed, within five (5) days of the date of this decision, to offer James P. Hoffa and C. Sam Theodus, in writing, copy to the Election Officer, the opportunity for access to the Local Union 743 stewards and their guests by duplicating and mailing by first-class mail the “Notice To James P. Hoffa and C. Sam Theodus” attached hereto.  Mr. Hoffa and Mr. Theodus shall be requested to indicate their acceptance or rejection of this offer within fourteen (14) days of receipt of their Notice.

2.  If Local Union 743 holds a campaign event for either or both candidates pursuant to this order, or if either or both candidates reject the invitation, the Local Union 743 trustee shall file an affidavit with the Election Officer demonstrating that the local union provided notice consistent with this directive, and the steps he has taken to comply with the Election Officer’s order within two (2) days of receipt of the rejection of the invitations, or within two (2) days of any such campaign event, whichever is later. A copy of the affidavit shall be simultaneously sent to the candidate(s) for whom Local Union 743 offered to hold an event.

3.  The Carey campaign shall pay for the round-trip air transportation of Mr. Hoffa and Mr. Theodus, or their representatives, to attend a presentation before Local Union 743 stewards and their guests.  Mr. Hoffa and Mr. Theodus shall forward to the Carey campaign an inovice indicating these costs (or a cancelled airline ticket).

4.  Within seven (7) days of receipt of the foregoing notice of costs, the Carey campaign shall reimburse these expenses to the Hoffa and Theodus campaigns.   Within two (2) day of providing reimbursement, the Carey campaign shall file an affidavit with the Election Officer demonstrating its compliance with this aspect of the remedy.

5.  Hereafter, if Local Union 743 permits access to its members by any candidate for the purpose of campaigning, then, pursuant to the Rules, the local union shall provide advance notice to and permit any other candidate for that office or a credentialed representative of such candidate, equal access and an opportunity to hear the other candidate(s) speak.

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 and 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

Julie E. Hamos, Regional Coordinator

              NOTICE TO JAMES P. HOFFA AND C. SAM THEODUS

Local Union 743 permitted Ron Carey to campaign at the Local 743

26th Union Stewards’ Banquet & Awards Ceremony ‘95 held August 19, 1995.  Each candidate for general president (or the candidate’s credentialed represen-tative) will be permitted, upon request, an opportunity to make a 15-minute presentation on a topic of their own choosing at a similar event at facilities provided by Local Union 743.  Please advise the undersigned within fourteen (14) days of receipt of this Notice if you wish to have such a campaign event, or if you reject this invitation.

____________________________________

Eddie Kornegay

International Trustee