Protest Decisions

              April 23, 1996

VIA UPS OVERNIGHT

Jack Miller

April 23, 1996

Page 1

Jack Miller

13944 N.E. 46th Street

Elkhart, IA 50073

Gary Cannon

4108 Oxford

Des Moines, IA 50313

Executive Board

Teamsters Local Union 147

2425 Delaware Avenue

Des Moines, IA 50317

Jack Miller

April 23, 1996

Page 1

Re:  Election Office Case No. P-504-LU147-MOI

Gentlemen:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) by Jack Miller, a member of Local Union 147 and candidate for delegate on the First Choice slate.  Mr. Miller alleges that Local Union 147 violated the Rules by:  (1) inviting International candidate

James Hoffa to speak in Des Moines, holding meetings at the local union hall to notify members of the visit and renting a fairgrounds for the event; (2) organizing a local union executive board trip to Kansas City to meet Mr. Hoffa, which took place on union time; (3) having some unspecified connection to the termination of Local Union 147 member

Gary Cannon by his employer, two days after Mr. Cannon nominated two members of the First Choice slate; (4) assisting to produce and distribute a pledge sheet for the Elect Hoffa/McClain Committee in order to sign up member support for Local Union 147 Vice President Ronald McClain’s bid for International trustee;[1] and (5) holding a raffle to support the bid of Local Union 41 President Phil Young for International vice president and attempting to hold two other raffles to support Mr. McClain’s bid for International trustee.  The Election Officer deferred the protest for consideration post-election pursuant to Article XIV,

Section 2(f)(2) of the Rules.

Jack Miller

April 23, 1996

Page 1

This protest was investigated by Regional Coordinator Michael D. Gordon.

1.  Allegations Relating to an Alleged Visit of James Hoffa

Mr. Miller states in his protest that “[i]t has come to our attention that James Hoffa was invited to Des Moines by our local . . . We still don’t know how this was financed.” 

This allegation was based on a conversation with Local Union 147 member and independent candidate for delegate Garry Engeltjes.  Mr. Engeltjes was referring to a visit that Mr. Hoffa made to Des Moines in connection with the 1990-1991 election.  There is no connection between this trip and the 1995-1996 election and the Rules.

2.  Allegations Relating to an Alleged Executive Committee Trip to Kansas City

Mr. Miller raises questions about “a trip . . . organized by the executive board while on the clock for a bus trip to Kansas City to meet Mr. Hoffa . . . We are uncertain how this was financed.”  He states his belief that the trip occurred two to three months before he filed his protest.

Local Union 147 Business Agent Jim Blanchard responds that the trip took place on August 5, 1995.  The bus cost $749, which was invoiced to Mr. Blanchard.  He states that he paid by personal check from proceeds that included $20 charged to each person who attended.

This allegation is untimely.  Article XIV, Section 2(b) of the Rules requires that protests “must be filed within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested.”  The short time limits are important to ensuring that alleged violations of the Rules are quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy if a violation is found.  Here, nearly seven months elapsed between the Kansas City trip and Mr. Miller’s protest, with no reason that would justify such a delay.

See Young, P-423-LU41-MOI (April 4, 1996) (protest filed with respect to material posted continuously at an employer for eight months; untimely).

3.  Allegations Concerning the Firing of Mr. Cannon

Mr. Miller states that Mr. Cannon nominated two members of the First Choice slate at the local union’s nomination meeting on February 10, 1996 and was fired two days later by his employer, Super Valu.  Mr. Miller does not allege how he believes Mr. Cannon’s activity at the nomination meeting and his subsequent termination were connected.

Article VIII, Section 11(f) of the Rules prohibits “[r]etaliation or threat of retaliation by . . . any [IBT] subordinate body . . . [or] any employer . . . for exercising any right guaranteed by this or any other Article of the Rules.”

Jack Miller

April 23, 1996

Page 1

The Election Officer’s investigation revealed the following:  On February 8, two days before the nomination meeting, Super Valu suspended Mr. Cannon and three other employees in connection with a dry ice “smoke bomb” thrown during horseplay.  Super Valu converted all four suspensions into discharges on February 12, two days after the nomination meeting.  Mr. McClain represents Mr. Cannon’s bargaining unit and assisted him in filing and prosecuting a grievance.  On February 19, Super Valu offered reinstatement without backpay to Mr. Cannon and one other employee and a 45-day unpaid suspension to the two other employees, who admitted direct involvement.  Mr. Cannon accepted the offer and told Regional Coordinator Gordon that he did not think that Super Valu’s actions or the local union’s response had any connection to his participation in the delegate election process.

On these facts, the Election Officer finds no evidence of retaliation.

4.  Allegations Concerning the Production and Distribution of Pledge Sheets

In an interview with the Regional Coordinator, Mr. Miller raised an event that came to his attention after he filed his protest, which the Election Officer included in her investigation.  On or about February 19, 1996, Local Union 147 member Bob Pierick, a Roadway driver, states that he encountered Business Agent Jim Blanchard at Cisco, a wholesaler.  Mr. Pierick asserts that Mr. Blanchard was soliciting contributions for Mr. McClain’s bid for International trustee.

According to statements taken by the Regional Coordinator, Mr. Pierick approached Mr. Blanchard with a problem about Cisco’s delivery policy, but Mr. Blanchard responded that he did not service Cisco.  Mr. Pierick first told the Regional Coordinator that this encounter took place in Cisco’s break room, but later stated that it happened on the warehouse floor, and said that his memory of the incident is not clear.  Mr. Pierick states that

Mr. Blanchard was holding “McClain Support Team Pledge Sheets,” but did not mention them to Mr. Pierick or to anyone else while in Mr. Pierick’s presence. 

Mr. Blanchard responded that he used to service Cisco and sometimes visits there to see friends.  He admitted going to Cisco sometime in mid-February, but denied having pledge sheets with him.

The Election Officer’s investigation revealed that pledge sheets were created and produced by Michael Stanfill, the local union’s recording secretary and a candidate for alternate delegate on the No Dues Increase slate.  Mr. Stanfill stated that he used his home computer, printed some copies on the computer and made other copies at an Office Depot, for which he produced a receipt.

On this record, there is no evidence that local union resources were used to produce the pledge sheets.  There is also no evidence of actual campaigning with the pledge sheets.

Jack Miller

April 23, 1996

Page 1

5.  Allegations Concerning Raffles

Mr. Miller raises potential Rules violations with respect to three raffles.  The raffles are discussed here according to their prizes:  a shotgun, a color TV and a truck.

As a general matter, however, Mr. Miller contends that raffles violate Iowa State law.  That is a matter under the jurisdiction of local law enforcement and does not fall under the Election Officer’s enforcement of the rights and protections of the Rules.  Franks, P-346-LU71-MID (January 30, 1991).

A.  Shotgun Raffle

This raffle raised money for Phil Young’s campaign for International vice president. The prize was a shotgun.  Costs were paid by the Phil Young Support Team.  On each of 2,000 tickets was printed:

Proceeds go towards Phil Young for Teamsters International Vice-President on the HOFFA/HOGAN SLATE.

              . . .

              DISCLAIMER

Only IBT members or persons who are not employees may contribute to my campaign.  Employers, unions, charitable organizations, trust, foundations, or other similar entities may not contribute any money, goods, services, or facilities to my campaign.

Paid for by Young Support Team, N. Stephens, Treasurer.

Mr. Miller alleges impropriety in how the raffle tickets were sold.  He put forth two witnesses.  One was Ray Scheaffer, a steward at Super Valu.  According to Mr. Scheaffer, he ran into Ray Cosner, a Yellow Freight employee and local union trustee and executive board member, at work.[2]  Mr. Cosner said that he had received a book of raffle tickets from

Mr. Blanchard and asked Mr. Scheaffer’s help in selling them.  Mr. Scheaffer took the book and both he and Mr. Cosner bought $5 worth of tickets.  Mr. Scheaffer stated that he did nothing more with the book, however, except put it in the local union’s mailbox, with the $10, early the next morning. 

Jack Miller

April 23, 1996

Page 1

The other witness was Mr. Engeltjes, who stated that sometime between mid-December 1995 and mid-January 1996, he was offered a ticket by the office clerk at Tones Warehouse (Ankany, Iowa), while he and the clerk were in the process of filling out paper work. 

Mr. Engeltjes also suggested that the Regional Coordinator talk to local union member

Larry Reece, who could not be located, and member Mike Sommers, who stated that he had bought one ticket from Local Union 147 Trustee and Steward Paul Cason.  That transaction took place outside the door of their workplace as Mr. Sommers was reporting for work and Mr. Cason was leaving from the previous shift.

The Election Officer finds that none of these incidents violated the Rules.  Under Article VIII, Section 11(a), candidates and members cannot campaign during working hours.  Under Article VIII, Section 11(b), local union officers and employees cannot campaign during time paid for by the local union.  However, both sections recognize that campaigning does not violate the Rules if done during personal time, such as breaktime or lunchtime, or if it is “incidental” to work or regular union business.

Thus, the encounter between Messrs. Sommers and Cason did not violate the Rules because it took place outside of their workplace as they were entering and leaving, respectively, on non-work time.

The transaction between Mr. Scheaffer and Mr. Cosner did not violate the Rules because it was incidental to their work.  As the Election Officer stated in George, P-490-LU391-SEC (April 4, 1996),

The Rules protect “incidental” campaigning on work time in order to ensure that as members interact normally during the course of their on-the-job responsibilities, that interaction may include campaigning.  It is not the grant of an extra right, but a recognition that election discourse may be part of the normal personal discourse that otherwise takes place at the workplace.

In deciding that the raffle book transaction fell within the bounds of normal workplace interaction, the Election Officer notes that the episode was brief, see Newhouse, P-253-LU435-RMT (January 4, 1996) (incidental to Union business); Kaiser, P-056-LU579-NCE (December 12, 1990); Andrade, P-387-LU526-ENG (February 7, 1991), and that there is no allegation that either Mr. Scheaffer or Mr. Cosner failed to perform work or deviated from prescribed duties.  Grossman, P-476-LU284-CLE (March 6, 1996).

Under these principles, the “incidental” exception also applies to the conversation between Mr. Engeltjes and the Tones Warehouse office clerk.  The campaigning took place while they were otherwise engaged in doing paperwork.

Jack Miller

April 23, 1996

Page 1

The Election Officer has recognized that raffles have another potential for facilitating Rules violations, in that tickets may be sold to persons or entities prohibited from making campaign contributions by Article XII, Section 1 of the Rules:  i.e., any “employers, representative of an employer, foundation, trust or any similar entity . . . [or] labor organization, including but not limited to the International Union, Local Unions and all other subordinate Union bodies . . .”  See Franks, P-346-LU71-MID (January 30, 1991), Bertram, P-386-LU313-PNW (January 30, 1991).  Article XII, Section 1(b)(9) of the Rules makes candidates strictly liable for ensuring that each contribution received is permitted.  In this matter, the Young Support Team printed a warning on each ticket that “Employers, unions, charitable organizations, trust, foundations, or other similar entities may not contribute . . .”  There is no evidence on this record that a ticket was purchased by any ineligible person or entity.

Mr. Miller does allege that Local Union 147 contributed improperly to Mr. Young’s campaign by making its office available as the pick-up location for the raffle prize.  According to the local union, the raffle drawing took place at a private location on January 10, 1996.  It admits, however, that Local Union 147 President Westley McDaniel called the prizewinner, Gary Lande, and told him he could pick up the shotgun at the local union office when he was next in Des Moines.  Mr. Lande did so at approximately 4:00 p.m. on or about January 15, during which time he met with Mr. McDaniel for about 20 minutes and had his picture taken.

The Election Officer finds that Local Union 147 violated Article XII, Section 1(b)(3) of the Rules by making its office available to the Young Support Team as the location to pick up the raffle prize.  That section provides that:

Union funds, facilities, equipment, stationery, personnel, etc. may not be used to assist in campaigns unless the Union is compensated at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are advised in advance, in writing of the availability of such assistance.

The Election Officer also finds that Mr. McDaniel violated a similar prohibition in Article VIII, Section 11(c) of the Rules by assisting the Young Support Team to deliver the raffle prize while on local union time.  Mr. McDaniel and Mr. Lande had no other reason to meet.  Therefore, Mr. McDaniel took 20 minutes out of his schedule to perform a campaign service.  The local union states that Mr. McDaniel was not “actively on duty” at the time, but does not state that he was actually off the clock, on personal time, as the Rules would require for campaign activity.

B.  Color TV Raffle and Truck Raffle

Jack Miller

April 23, 1996

Page 1

These raffles were initiated by the Elect Hoffa/McClain Committee to raise money for Mr. McClain’s campaign for International trustee.  Both raffles were terminated due to an Iowa State investigation into potential gambling law violations.  Neil A. Barrick, attorney for Local Union 147, stated to the Regional Coordinator, by letter dated March 21, 1996, that “I hereby wish to inform you that the activity referenced in the . . . protest as it relates to raffles for color T.V. and/or truck that the activities on those raffles have ceased and individuals who have purchased tickets in those raffles will be contacted and offered a refund for their ticket purchase.”

The protester did not present any evidence of Rules violations with respect to these raffles, other than his general allegation, addressed above, that raffles violate Iowa State law. 

For the reasons stated above, the protest is GRANTED with respect to Local

Union 147’s contribution of its office as the place for the Young Support Team to deliver the prize in the shotgun raffle, and with respect to Mr. McDaniel’s time in delivering it.  The protest is DENIED in all other respects.

When the Election Officer determines that the Rules have been violated, she “may take whatever remedial action is appropriate.”  Article XIV, Section 4.  In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.

In this matter, the only violations found relate to Mr. Young’s candidacy for International vice president.  The Election Officer finds no nexus to or impact on Local

Union 147’s delegate election.

Accordingly, the Election Officer orders the following:  Local Union 147 shall cease and desist from making any contribution of local union funds, facilities, equipment, stationery, personnel, etc., to the campaign of Phil Young or any other candidate for International office unless the local union is compensated at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are advised in advance, in writing, of the availability of such assistance.

Westley McDaniel shall compensate Local Union 147 for 20 minutes of his services, calculated by dividing the value of his monthly income and benefits by the number of hours he is required to spend on regular local union business per month, and dividing further by three.  Within five (5) days of the date of this decision, Mr. McDaniel shall furnish an affidavit to the Election Officer showing how this calculation was made and giving proof of payment.

An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules.  In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).

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:

Jack Miller

April 23, 1996

Page 1

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

Michael D. Gordon, Regional Coordinator