Protest Decisions

March 15, 1996

VIA UPS OVERNIGHT

Derek Brown

619 Springfield Way

Mill Valley, CA 94941

Van Beane, Secretary-Treasurer

Teamsters Local Union 85

2660 Newhall Street, Suite 205

San Francisco, CA 94124

Re:  Election Office Case No. P-481-LU85-CSF

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”) by Derek Brown, a member of Local Union 85 and a candidate for delegate.  Mr. Brown charges that Van Beane, secretary-treasurer of Local Union 85 and a candidate for delegate, used a union fax machine to send an eligibility protest to the Election Officer.  Mr. Brown also alleges that Mr. Beane’s used union secretarial staff and union-purchased postage to mail campaign literature. 

This protest was investigated by Regional Coordinator Matt Ross.

On February 9, Mr. Beane faxed an eligibility protest[1] with the Election Officer challenging Mr. Brown’s eligibility.  At the top of Mr. Beane’s letter appears the tag, “FEB 9 ‘96 12:53 FROM TEAMSTER LOCAL 85.”  Mr. Beane admits that the letter was sent using a facsimile machine owned by the local union. 

Derek Brown

March 15, 1996

Page 1

              Article XII, Section 1(b)(3) of the Rules reads, in relevant part, that, “No union funds or other things of value shall be used, directly or indirectly, to promote the candidacy of any individual.  Union funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in campaigns . . .”  The use of union equipment, supplies or personnel to promote candidacy or a campaign is therefore prohibited under the Rules.

It is well settled, however, that the filing of a protest is protected, and does not constitute support for a candidate or campaigning under the Rules.  Article XIV, Section 1 of the Rules reads, “Any member, Local Union or other subordinate body of the International Union or the International Union may file a protest with the Election Officer alleging noncompliance with the Rules, free from retaliation or threat of retaliation by any person or entity for such filing . . .”

Moreover, no restrictions are placed on the protected right to file protests under Article XIV, Section 1.  See Scalf, Case No. P-097-LU705-CHI (August 16, 1995).

Mr. Brown also alleges that a February 13 letter mailed by Mr. Beane to the International union protesting a presumed merger of Local Union 85 with Local Union 287 is a piece of campaign literature mailed at union expense.  Mr. Brown argues that Mr. Beane deliberately waited until after the local union’s nomination meeting to send the letter, copies of which were sent to Local Union 85 members, to demonstrate his leadership.  As evidence, Mr. Brown states that Mr. Beane expressed no concern as to the possible merger at a Local Union 85 Executive Board meeting held before the letter was sent out; nor did Mr. Beane produce the letter at the nomination meeting, which was held February 8. 

In response, Mr. Beane states that he first learned of the possibility of a merger on January 24 from Local Union 287 Secretary-Treasurer Ray Corrie at a president’s meeting.  He states that a letter was not written immediately because he felt it necessary to consult with the other local union officers and the local union attorneys. 

Article VIII, Section 8(a) of the Rules states that a union-financed publication or communication may not be “used to support or attack any candidate or the candidacy of any person.”

              The Election Officer has consistently used the tone, timing and content test in determining when a publication constitutes campaigning.  Jacob, P-071-LU319-EOH

(September 7, 1995), aff'd, 95 - Elec. App. - 19 (KC) (October 3, 1995); Martin, P-010-IBT-PNJ, et seq. (August 17, 1995), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995).  She also “reviews the specific context in which the communication takes place.”  Jacob, supra.  “[U]nion officers retain both the right and responsibility to exercise the powers of their office to advise and report to the membership on issues of general concern.”  Martin, supra.

Derek Brown

March 15, 1996

Page 1

The Election Officer finds that the letter does not constitute campaigning.  The letter pertains to issues of legitimate institutional interest to the local union.  No references are made to the protester or any other candidates.  There is no reference to the delegate or International officer elections.  “[U]nion officers retain both the right and responsibility to exercise the powers of their office to advise and report to the membership on issues of general concern.”  Martin, supra.  Under these circumstances, the possible merger of a local union is a matter about which the local union leadership may communicate without violating Article VIII, Section 8(a), above.

Based upon 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 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

Matthew D. Ross, Regional Coordinator