March 7, 1996
VIA UPS OVERNIGHT
Gary Clark
March 7, 1996
Page 1
Gary L. Clark
270 Kerry Lane
Highland, MI 48357
Jim Cianciolo, President
Teamsters Local Union 243
2741 Trumbull Avenue
Detroit, MI 48216
David Bailey
11437 Boyce Road
Chelsea, MI 48118
Gary Clark
March 7, 1996
Page 1
Re: Election Office Case No. P-473-LU273-PGH
Gentlemen:
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”). Gary Clark, a candidate for delegate from Local Union 243, seeks a ruling that he may use a Local Union 243 membership list originally obtained from Teamsters for a Democratic Union (“TDU”). Mr. Clark also contends that there was improper campaigning in the Local
Union 243 January newspaper, The Mirror, and that the name placement on a ballot of a candidate for alternate delegate is improper.
It is undisputed that Mr. Clark was in possession of a membership list which he got from TDU. The local union officers deny that the January edition of The Mirror contained any improper campaigning.
The protest was investigated by Regional Coordinator William A. Wertheimer, Jr.
In Cipriani P-420-LU391-SEC et al. (March 1, 1996) (appeal pending), the Election Officer decided that:
Gary Clark
March 7, 1996
Page 1
Under [Article VIII, Section 3(a) of the Rules and applicable precedent] International candidates may make the list available only to those candidates for delegate who are being designated as their agents . . .
The Election Officer found that TDU is a third party to which such membership lists may not be disseminated. The Election Officer also considered whether the candidates who had obtained membership lists from the TDU were in violation of the Rules and concluded that they were not.
Before the decision in Cipriani was issued, Mr. Clark returned the membership list to TDU, apparently based on information he received from TDU about the Election Officer’s concern with TDU’s distribution of the list. The fact that Mr. Clark acted cautiously to avoid any improper conduct prior to the issuance of the Election Officer’s decision does not give rise to a violation. If he is a designated agent of one of the accredited International candidate’s campaigns, he may obtain the list from the accredited candidate. In addition, pursuant to Article VIII, Section 7 of the Rules, Mr. Clark may request that the local union distribute his literature at the reasonable cost of such distribution.
As to the January 1996 issue of The Mirror, the Rules, in Article VIII, Section 8(a) prohibit the use of union publications for campaigning. Mr. Clark cites the appearance of a photograph of Sandy Miskel, a candidate for alternate delegate, on the front page of the issue. However, Ms. Miskel was a late substitute as candidate, and was not a candidate at the time the picture appeared. Where the person who is the subject of a communication has not yet been named a candidate, the protested communication is not “campaigning” forbidden by the Rules. See, Ruscigno, P-067-LU20-EOH (July 19, 1995); Martin, P-010-IBT-PNJ et al. (August 17, 1995) (decision on remand), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995).
Mr. Clark also objects to the coverage of declared candidates Messrs. Cianciolo and Lowran. As stated in Martin and Ruscigno, the Election Officer looks to the “tone, content, and timing” of the communications at issue to determine whether campaigning has occurred. She also reviews the context of the challenged communications. Here a “President’s Report” from Mr. Cianciolo discusses the upcoming elections as part of the important business facing the local union. Like the candidate discussed in Martin, Mr. Cianciolo and Mr. Lowran have the right and responsibility to discuss the business of the union with its members. The matters discussed in Mr. Cianciolo’s column -- the elections, contract negotiations with an employer, pending legislation -- are of interest to members, central to local union business, and newsworthy. They are appropriate as to content and timing. The same reasoning and result apply to Mr. Lowran’s discussion of pending legislation. The Cianciolo column protested here is also acceptable in tone: a neutral discussion of the elections and no mention, partisan or otherwise, of any candidates. These columns do not constitute improper campaigning. The pictures of Mr. Cianciolo and Mr. Lowran accompanying their respective columns are reasonably related to these features of the newspaper.
Gary Clark
March 7, 1996
Page 1
As to the ballot issue, Mr. Clark has been shown a later mock-up of the ballot with the name placement altered, and no longer objects to the layout of the ballot.
Accordingly, on the issue of ballot placement, the protest is RESOLVED, and in all other respects, 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
William A. Wertheimer, Jr., Regional Coordinator