Protest Decisions

November 8, 1995

VIA UPS OVERNIGHT

Tom Michaels

November 8, 1995

Page 1

Tom Michaels

1242 Lesser Avenue

Akron, OH 44314

C. Sam Theodus, President

Teamsters Local Union 407

3150 Chester Avenue

Cleveland, OH 44114

Bob Vibonese

Teamsters Local Union 407

3150 Chester Avenue

Cleveland, OH 44114

Tom Michaels

November 8, 1995

Page 1

Re:  Election Office Case No. P-205-LU407-CLE

Gentleman:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by

Tom Michaels, a member of Local Union 407.  The protester alleges that Local Union 407 President C. Sam Theodus and Business Agent Bob Vibonese were campaigning to become delegates while they were on union time.

The protester alleges that on Wednesday, October 18, 1995, at about 3:15 p.m., while he was in the Yellow Freight drivers’ room, he heard Mr. Theodus tell drivers that “the contract with Yellow Freight was not negotiated in the best interest of the members.”  The protester acknowledges that the delegate election was not mentioned and that his only basis for believing that the two union representatives were candidates for delegate was that Mr. Theodus had attended an Election Office training session on the Rules.  The protester also acknowl-edges that Mr. Theodus has visited Yellow Freight in the past in his capacity as union president, but contends he had not been there recently.

Tom Michaels

November 8, 1995

Page 1

Mr. Theodus denies that he and Mr. Vibonese were campaigning at Yellow Freight.  He states that he visited the drivers’ room with the business agent on October 18, 1995 to collect signatures on postcards addressed to President Clinton protesting proposed cuts in Medicare and Medicaid.  He said that when he handed a postcard to one member, the member began talking about Mr. Carey and the Yellow Freight contract.  Mr. Theodus told the member that he had been one of three members on the bargaining team who opposed the contract and that he did not think it was in the membership’s best interest.  He admits that he spoke with the member for several minutes, during which time he criticized Ron Carey’s performance in office.      

The protest was investigated by Regional Coordinator Joyce Goldstein.

It is undisputed that while talking to members during a work-site visit to Yellow Freight, Local Union 407 President Sam Theodus criticized the collective bargaining agreement that had been negotiated with Yellow Freight.  There is also no dispute that

Mr. Theodus’s visit was on union time.               

The Rules, at Article VIII, Section 11(b), permit union members, including union officers, to participate in campaign activities and to openly support or oppose any candidate subject to the restriction that officers, employees, as well as union members, may not campaign on time that is paid for by the union.

There was no evidence that either Mr. Theodus or Mr. Vibonese are candidates for delegate.  The Election Officer notes that Mr. Theodus is a candidate for general president of the IBT,[1] as is Ron Carey.[2]  Nevertheless, the discussion during which Mr. Theodus raised his criticism of the Yellow Freight agreement occurred in the context of a legitimate discussion of union business and is protected.  As the Election Officer noted in Martin, supra, “Restrictions on campaigning must not be read so broadly as to restrict the right and responsibility of union officers to conduct their official business, nor prohibit other members and subordinate bodies from criticizing the policies or official conduct of those officers.”  Furthermore, “giving voice to views opposing the current leadership on matters of concern to union members serves the purpose of promoting democracy.”  Jordan, P-141-LU337-MGN (September 18, 1995). 

Mr. Theodus and Mr. Vibonese were not campaigning.  Therefore, 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 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:

Tom Michaels

November 8, 1995

Page 1

Kenneth Conboy, Esq.

Latham and Watkins

885 Third Avenue

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

Joyce Goldstein, Regional Coordinator