Protest Decisions

              March 5, 1996

VIA UPS OVERNIGHT

Robert Kronhert

41 Hawthorne Street

Rutherford, NJ 07070

Albert Benack

1663 Arlington Avenue

Columbus, OH 43212

Re:  Election Office Case No. P-489-LU843-PNJ

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 Robert Kronhert, a member of Local Union 843.  Mr. Kronhert alleges that Albert Benack, trustee of Local Union 843, violated Article XII, Sections 1(b)(3) and 1(b)(4) of the Rules when he used a union-owned typewriter, facsimile machine and personnel to file an eligibility protest with the Election Officer.[1] 

In response, Mr. Benack admits union resources were utilized in filing the protests with the Election Officer, but asserts this conduct is not campaigning in violation of the Rules.

The protest was investigated by Regional Coordinator Peter V. Marks, Sr.

Robert Kronhert

March 5, 1996

Page 1

As alleged by Mr. Kronhert, Mr. Benack’s protest against Mr. Giacumbo was faxed to the Election Office on February 5, 1996 and docketed by the Election Officer the following day.  It is undisputed that this protest was faxed using a facsimile machine that belonged to Local Union 843.

Article XII, Section 1(b)(3) reads, in relevant part, that “[n]o 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.  Section 1(b)(4) also prohibits a member from campaigning during union- or employer-paid time unless such campaigning is “incidental.” 

The Election Officer has held repeatedly that the filing of a protest is protected, and does not constitute support for a candidate or campaigning under the Rules.  Cook,

P-357-LU705-CHI (February 16, 1996) (appeal pending); Hoke, P-322-LU89-SCE

(January 29, 1996); and Scalf, P-097-LU705-CHI (August 16, 1995).  In each of these protests, the Election Officer looked to Article IX, Section 1 of the Rules which states, “[a]ny 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 . . .”  Interpreting this Rules provision, the Election Officer found that no restrictions exist as to the protected right to file protests under Article XIV, Section 1.

Because Mr. Benack’s actions do not constitute prohibited campaign activity, the Rules have not been violated.  Based upon the foregoing, Mr. Kronhert’s 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

Robert Kronhert

March 5, 1996

Page 1

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

Peter V. Marks, Sr., Regional Coordinator