Protest Decisions

              March 25, 1996

VIA UPS OVERNIGHT

George Faulkner

March 25, 1996

Page 1

George H. Faulkner

Faulkner & Sacket

820 W. Superior, Suite 300

Cleveland, OH 44113

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

John J. Sullivan, Assoc. Gen. Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Nick Anardi, President

Teamsters Joint Council 41

3150 Chester Avenue, 2nd floor

Cleveland, OH 44114

Susan Davis

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY 10036

George Faulkner

March 25, 1996

Page 1

Re:  Election Office Case No. P-293-IBT-CLE

Gentlepersons:

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 Teamsters Joint Council 41 and its officers (“JC 41”) by letter dated January 8, 1996.  In essence, JC 41 alleges that the decision of the General Executive Board (“GEB”) to establish Joint Council 1 (“JC 1”) constituted improper campaign activity and improper retaliation against JC 41 for engaging in protected activity.  The protester asserts that the “IBT . . . used a facially legitimate reason in granting the new charter as an unlawful pretext.”  The protest asks the Election Officer to rescind the GEB’s decision and to grant other appropriate relief. 

The IBT takes the position that JC 1 was created for legitimate reasons and that its creation had no relationship to, and did not impact, the International elections.

George Faulkner

March 25, 1996

Page 1

This protest was investigated by Regional Coordinator Joyce Goldstein.

The investigation shows that before the GEB established JC 1, three joint councils operated in the state of Ohio:

              Joint Council 41, which included 31 local unions in the Cleveland area, representing approximately 51,000 members;

              Joint Council 44, which included four local unions in the Toledo area, representing approximately 20,000 members; and

              Joint Council 26, which included six local unions in the Cincinnati area, representing approximately 8,700 members.

Dan Darrow, former president of JC 41,[1] was a vocal opponent of Mr. Carey.  In March 1995, six local unions in JC 41 submitted resolutions to the IBT petitioning the GEB to grant them a new joint council charter.  Those local unions (73, 293, 336, 436, 473 and 510) represented approximately 11,300 members.  Each resolution recited the following reasons for seeking approval of a new joint council:  (1) the IBT Constitution requires the local union to affiliate with JC 41; (2) the local union must pay JC 41 a per-capita tax of $1.50 per month; (3) it receives no “organizing support or assistance and no Business Agent or Steward training seminars” from JC 41; (4) member dues money is being “unwisely expended [by JC 41] on a Joint Council Business Agent with minimal duties and responsibilities, excessive salaries to Joint Council officers and wasteful expenditures on contributions to the Real Teamster Caucus” (“RTC”);[2] (5) by forming a new joint council, the local union could save money; and (6) from a new joint council, the local union could “receive the programs, support and financial assistance necessary to protect our membership and provide the best representation possible.”

George Faulkner

March 25, 1996

Page 1

On March 28, 1995, Mr. Darrow wrote to Mr. Carey to state that he had been informed that officers from five JC 41 local unions were petitioning the GEB for a new joint council.[3]  He complained that JC 41 had not been contacted about any issues raised in the petitions, and he expressed concern that the GEB was scheduled to meet April 10, 1995 and could act on the petitions.  Mr. Darrow asserted that withdrawal of the five local unions would hurt the ability of JC 41 to carry out various ongoing activities and programs.

Mr. Darrow further stated his belief that the real motivation for the new joint council was the political dispute between JC 41 and the officers of the five petitioning local unions; the close connection between those officers and Mr. Carey; and a pattern of retaliation by

Mr. Carey and the IBT against JC 41 stemming from the joint council’s opposition to

Mr. Carey and his programs.  JC 41 states that it never received a reply to Mr. Darrow’s letter.

On January 3, 1996, the executive board of Local Union 377 in Youngstown, Ohio, voted to join the petition for a new joint council.  That same day, JC 41’s counsel faxed a letter to the IBT’s general counsel, asking for confirmation or denial of a rumor that the GEB would be polled that week to approve the new joint council petition.  In fact, Mr. Carey and General Secretary-Treasurer Tom Sever polled the GEB by TITAN[4] regarding the petitions that same day.  Mr. Carey and Mr. Sever recommended approval of the new joint council subject to two conditions:  that two more Northern Ohio local unions confirm in writing their agreement to join the original six by January 31, 1996, and that all local unions joining the new joint council commit to adopting the new model joint council bylaws (instituting a

one dollar per-capita tax and certain voting reforms).

On January 4, 1996, JC 41 sent a TITAN message to Mr. Carey and Mr. Sever protesting the poll.  The message reiterated the views in Mr. Darrow’s previous letter and asked that the decision be deferred until JC 41 could make a presentation to the GEB at a hearing during the week of January 22, 1996.  Later that day, the GEB approved the establishment of JC 1, subject to the two conditions stated above.

On January 5, 1996, the IBT issued a press release about the formation of JC 1, entitled “Proposed New Joint Council in Ohio Would Eliminate More Outrageous Multiple Salaries.”  The release stated that forming the new joint council would “further a key reform that has long been advocated by Teamsters General President Ron Carey--elimination of outrageous multiple salaries for union officials.”  It noted that new joint council officers would not receive additional salaries, and claimed that JC 41 paid local union officials extra salaries totaling more than $117,000 in 1994, including more than $30,000 paid to Mr. Darrow as one of four union salaries received by him that year.  The release further stated that since taking office in 1992, “Carey has reduced the number of outrageous multiple salaries” for “dozens of local Union officials” and that he “returned more than $11 million per year to Teamster local unions” when he eliminated the area conferences.  It also cited the decrease in per-capita tax in the new joint council from $1.50 to $1.00 per month.

George Faulkner

March 25, 1996

Page 1

On January 15, 1996, the JC 41 executive board and delegates met and agreed to recommend that local unions included within JC 41 adopt all of the structural changes approved for JC 1, if all local unions in Ohio not joining JC 1 would petition the GEB to form a single joint council in Ohio, and the GEB would form such a single joint council by combining those local unions with the local unions joining JC 1.  JC 41 states that at least 17 local unions presently affiliated with it executed resolutions calling for such action.

During January 1996, the original six local unions that petitioned for the formation of JC 1 were joined by Local Unions 377, 284, 507 and 836.  JC 1 currently includes 10 local unions.   On February 23, 1996, C. Sam Theodus, president of Local Union 407, wrote to Mr. Carey contending that the general president had allowed Local Union 24 to join JC 1 after the January 17 cut-off date.  Mr. Theodus also requested that Local Union 407 be able to join JC 1, provided that Mr. Carey permit all Ohio local unions to make the same request and that he permit Local Union 407 to join prior to the election of officers in JC 1.[5]  In a response dated March 7, 1996, Mr. Carey responded that the GEB had not been polled on Local

Union 24’s request to join JC 1.  As to the request by Local Union 407, Mr. Carey stated that JC 1 had elected officers by acclamation on February 28, 1996 and that these officers would be installed on March 8, at which time the joint council would be released from “trusteeship.”[6]  Thus, Mr. Carey stated that he was now prepared to recommed to the GEB that the applications of other local unions to join JC 1 be considered but it is “unclear whether Local 407 wishes to affiliate with Joint Council 1 under the current circumstances.”

1.  Allegations of Improper Campaigning

The protester alleges that by granting a charter to JC 1, Mr. Carey and the GEB improperly used labor organization funds and resources in furtherance of the Carey campaign.  JC 41 contends that those actions violated Article XII, Section 1(b)(1) of the Rules, which provides that no employer may “contribute . . . directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate . . .”

George Faulkner

March 25, 1996

Page 1

Where the IBT or an affiliate is accused of making a campaign contribution through its activities, the “purpose, object or foreseeable effect” of the conduct must be examined in light of the union’s legitimate activities and functions.  For example, a local union president might decide that by hiring an additional clerical employee, the local union would be able to process members’ grievances more quickly.  This would be a legitimate, union-related expenditure of union funds.  It would not become an improper contribution simply because the foreseeable effect of this action would be to increase the popularity of the local president and, thus, increase the president’s chances of reelection.   To find a violation, the “foreseeable effect” of the expenditure must be more direct, as opposed to a possible or incidental byproduct.

The Election Officer has previously held that “restrictions on campaigning must not be read so broadly as to restrict the right and the responsibility of union officers to conduct their official business . . .”  Martin.  The GEB has the authority under Article XV, Section 1 of the IBT Constitution to charter new joint councils.  Previous Election Officer cases have repeatedly recognized the need to defer to the IBT in the exercise of its constitutional authority if there is no evidence of abuse of that authority which violates the Rules.  See Riley, P-035-IBT-SCE (June 30, 1995), aff’d, 95 - Elec. App. - 4 (KC) (July 25, 1995) (no violation where IBT created new joint council); Robbins, et al., P-013-IBT-SCE, et seq. (June 30, 1995), aff’d, In Re: Murphy, 95 - Elec. App. - 3 (KC) (July 26, 1995) (no violation where IBT ordered merger of small or insolvent local unions); Gilmartin, et al., P-032-LU245-PNJ,

et seq., aff’d, 95 - Elec. App. - 75 (KC) (February 7, 1996) (no violation where general president found contributions by affiliates to RTC unconstitutional); Executive Board, Local Union 745, P-247-IBT-SCE (January 22, 1996), aff’d, 96 - Elec. App. - 74 (KC) (February 6, 1996) (no violation where general president ruled that affiliates could not make large prepayments of attorneys’ fees to prevent the International union from having access to those funds).

The reasons stated in the resolutions of the petitioning local unions demonstrate a legitimate basis for creating a new joint council.  Even if one looked at the protester’s allegations alone, which are cited in Mr. Darrow’s March 28, 1995 letter to Mr. Carey, the chartering of JC 1 concerned conflicts over the level of member dues, the abolition of the area conferences, strike funds, the imposition of trusteeships on local unions, and the use of IBT assets--all legitimate union issues.

Viewed in this light, it does not appear that expenditures by the IBT in creating JC 1 have any foreseeable effect of supporting or attacking a candidate for International office.  In and of itself, the creation or dissolution of a joint council does not affect the number of voting delegates to the International convention or who those delegates are.  It does not affect the eligibility of voters to vote in the final mail ballot or their ease of voting.  No candidate will gain or lose a power base in connection with the International election since no union resources may be used in connection with the campaign.  Any publicity benefit which might accrue to Mr. Carey is incidental to the exercise of the GEB’s legitimate authority.  On this evidence, the GEB and Mr. Carey did not violate the Rules by creating JC 1.

George Faulkner

March 25, 1996

Page 1

The protester also alleges that the press release issued by the IBT about JC 1’s formation constitutes improper campaigning.  JC 41 argues that the release “is written in typical campaign-like fashion” and paints Mr. Carey as a reformer on issues such as eliminating “outrageous multiple salaries,” lowering the per-capita tax that the new joint council would collect from member local unions, and decreasing Teamster bureaucracy.  Therefore, an action that contributes to portraying Mr. Carey as a reformer will “ingratiate Mr. Carey in the eyes of the public and Teamster members, at the expense of JC 41, thus advancing his bid to be elected for another term.”

In Gilmartin, the Election Officer found that a campaign contribution analysis should not be applied to official communications of the union to the members.  Instead, she concluded “that a union’s communications to its own members will be reviewed to see if the communications constitute campaigning under Article VIII, Sections 8(a) and 11(b) of the Rules.”  Under those sections, the Election Officer looks to the tone, content and timing of the disputed materials.  Martin, et al., P-010-IBT-PNJ, et seq., (August 17, 1995) (decision on remand), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995).

Of the 13 paragraphs in the press release, seven state factual aspects of JC 1’s conditional approval.  One paragraph discloses the amount that JC 41 paid in 1994 in extra salaries, including the amount paid to Mr. Darrow as one of four salaries he received that year.  Four paragraphs mention Mr. Carey as a reformer and one paragraph is a quote from Mr. Carey about members having “a right to expect their dues dollars to be spent fighting for working people--not on outrageous multiple salaries for union officials.”

The Election Officer finds that this press release, while complimentary to Mr. Carey, does not, overall, support his candidacy in violation of the Rules.  The article portrays JC 1’s formation as a way to save members’ money through lowering the per-capita tax and eliminating multiple salaries, as well as a part of Mr. Carey’s ongoing reform efforts to save members’ money by eliminating multiple salaries and Teamster bureaucracy.  It does not mention the election in any way.  These subjects are newsworthy to members without regard to Mr. Carey’s candidacy or the election.

In Hoffa, P-126-IBT-EOH (October 4, 1995), the Election Officer found that a bullet-point list of Mr. Carey’s financial reforms did not transform the magazine article into prohibited campaigning where that list was related to the subject of the article (strike benefits) and was “of concern to the membership.”  See also Hamada, P-335-LU763-PNW

(February 20, 1996) (“article is newsworthy and reported on events of legitimate concern to union members, unrelated to the election”).  In In Re: Martin, 95 - Elec. App. - 18 (KC) (October 2, 1995), the Elections Appeals Master specifically rejected a charge that articles concerning Mr. Carey constituted improper campaigning because they served to emphasize themes of his campaign:  “Mr. Carey has the right and responsibility to communicate with the membership . . . his goals as General President of the IBT.”  The Election Officer finds that the January 5, 1996 press release does not constitute campaigning.

Turning to the form of the TITAN message to GEB members, the Election Officer finds that it is stated factually and does not constitute campaigning for Mr. Carey.  See Yeity, P-520-LU429-PNJ (March 1, 1996).  Further, it was not sent to the membership, but was a private communication with the GEB.

George Faulkner

March 25, 1996

Page 1

JC 41 challenges the timing of the GEB poll, claiming that Mr. Carey delayed this action until the “critical period of nomination meetings and Delegate election” for campaign purposes.  The record reflects, however, that Mr. Carey did not support approval of a new joint council for just the original six petitioning local unions.  The TITAN message to GEB members recommended approval on two conditions, one of which was that at least two more Northern Ohio local unions join by the end of January.  The record shows that one more Ohio local union did ask to join on the day of the poll.  Thus, this record supports an alternate explanation for the alleged delay, which is that Mr. Carey waited until there appeared sufficient support for a new joint council.  See Saavedra, P-485-LU490-CSF (March 5, 1996) (timing of letter alleged to be for campaign purposes explained by other circumstances in record).

The protester argues that JC 41’s subsequent action in attempting to form a single joint council for Ohio, which would embody all of the structural changes requested for JC 1, shows that JC 1 was formed only for publicity and retaliation.  JC 41’s proposal, however, was not made until after JC 1 had already been conditionally approved.  The proposal was conditioned on abolishing not only JC 1, but also Joint Council 26 and Joint Council 44.  Moreover, the proposal was supported in this record by only 17 out of at least 41 Ohio local unions, when its own terms require unanimous support before submission to the IBT. 

The protester also alleges that the preparation and issuance of the TITAN message and the press release constituted union-paid campaigning in violation of Article XII, Sections 1(a) and 1(b)(4) of the Rules.  Since the Election Officer has found that the TITAN poll and the press release do not constitute campaigning in violation of the Rules, working on them on union time did not violate the Rules.

2.  Allegations of Improper Retaliation

The protester claims that Mr. Carey and the IBT formed JC 1 to retaliate against JC 41 and members associated with it.  It asserts that Mr. Carey recommended approval of the petition because of the alleged conflict between JC 41 and the officers of the local unions that petitioned to form JC 1.  The protester also cites the alleged conflict between Mr. Darrow and JC 41 on one side and Mr. Carey on the other.

Mr. Darrow’s letter of March 28, 1995, identified five officers in the local unions that petitioned to form JC 1 whom he contended were in conflict with JC 41, and set forth in detail the bad feelings these officers allegedly harbored against JC 41.  He further stated that those officers were being led by former JC 41 President Carmen Parise, who was suspended from office for 24 months by Independent Administrator Frederick Lacey.  Mr. Darrow alleges that Mr. Parise and these officers met with Mr. Carey in secret on January 17, 1995 because the officers were not satisfied with the outcome of the JC 41 officer elections.

George Faulkner

March 25, 1996

Page 1

Describing the basis for a retaliatory motive by Mr. Carey, Mr. Darrow noted that:  (1) JC 41 opposed Mr. Carey’s call for a 25 percent dues increase in 1994; (2) in February 1994, Mr. Darrow served as chair of the Ohio Conference United Parcel Service (“UPS”) Grievance Committee and did not support Mr. Carey’s call for a strike among UPS members; (3) Mr. Carey acted to revoke the charters of the four area conferences, which put him and Mr. Darrow into conflict since Mr. Darrow was a Policy Committee member of the Central Conference; (4) JC 41 supported the successful effort to create an Ohio Strike Fund over

Mr. Carey’s opposition; (5) Mr. Darrow served as chairman of the RTC; (6) in August 1994, Mr. Sever declined an invitation to attend the 1994 annual meeting of the Ohio Conference of Teamsters in large part due to positions taken on issues by Mr. Darrow; and (7) Mr. Darrow and others filed litigation with respect to IBT efforts to curtail or stop contributions to the RTC, including the IBT’s creation of the RTC fact-finding commission.

Article VIII, Section 11(f) of the Rules provides:

Retaliation or threat of retaliation by the International Union . . . [or] any member of the IBT . . . against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules is prohibited.

To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the adverse decision or conduct in dispute.  The Election Officer will not find retaliation if she concludes that the union officer or entity would have taken the same action even in the absence of the protester’s protected conduct.  See Gilmartin; Martin; Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995); Leal, P-051-IBT-CSF (October 3, 1995), aff’d, 95 - Elec. App. - 30 (KC) (October 30, 1995).  Here, as noted above, the IBT addressed a legitimate issue of concern:  the creation of a new joint council.

In this case, JC 41 has made no showing that any of the “true reasons” for forming

JC 1 were related to the election process under the Rules.  There is no nexus to the election either in the formation of JC 1, or in the history of the conflict between the protester and the Carey administration.  As noted in Riley, “the joint council to which a local union belongs does not affect the election of delegates, alternate delegates, or International officers.”  Thus, even if one assumed bad intent on the part of Mr. Carey, there is no observable impact that the creation of JC 1 could have on the election process or rights protected by the Rules.  Moreover, under the protester’s theory, the origins of this dispute are not in the election, but in a more general power struggle between JC 41 and the Carey administration which goes back to the beginning of 1994.  Whatever the motivation for creating JC 1, it does not appear to stem from the exercise of any right protected by the Rules.  See Wsol.

George Faulkner

March 25, 1996

Page 1

The Election Officer finds that the protester has not sustained its burden of showing that the true reasons for forming JC 1 were retaliatory.  In this case, JC 41 concedes that “the IBT has used a facially legitimate reason in granting the new charter . . . ,” but concludes that the stated reasons were fallacies and pretext.  Merely asserting a history of conflict on other issues, however, does not establish such a pretext “expressly or by reasonable implication.”  Hammond, P-250-IBT-SCE (January 2, 1996) (“The fact that the protester has been an outspoken critic of Mr. Carey’s administration does not, in itself, indicate a retaliatory motive.”).

Based on the evidence, as well as the history of the parties’ relationship as revealed in past Election Officer decisions, it seems clear that the creation of JC 1 was a highly politicized decision, just as opposition to its creation is also highly political.  As was the case with the formation of the RTC, the evidence here “shows a vigorous and heated struggle in which the current administration and its political opponents have sought to maneuver to obtain

advantage . . .”  Gilmartin.  Action by an incumbent to consolidate power or to ensure that administrators are loyal to him or her does not, by itself, violate the Rules.  The Election Officer’s jurisdiction extends only to conduct which impedes the rights of members to a full and informal election.  On this record, the creation of JC 1 has not affected or impeded those rights.

For the foregoing reasons, 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:

Kenneth Conboy, Esq.

Latham & 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 N. Capitol Street, Suite 855, Washington, DC 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