Protest Decisions

              March 14, 1996

VIA UPS OVERNIGHT

Tom Gilmartin

March 14, 1996

Page 1

Tom Gilmartin, Jr., Vice President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

Robert A. Bell

36 Bliss Road

New Britain, CT 06053

George Clark

423 Goodwin Street

East Hartford, CT 06108

Luther B. Henry, Jr.

52 E. Mount Road

Middletown, CT 06457

John Sullivan, Assoc. Gen. Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

Tom Gilmartin

March 14, 1996

Page 1

Re:  Election Office Case No. P-571-LU559-SCE

Gentlemen:

A pre-election protest was filed by Tom Gilmartin, Jr., International vice president, pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).  The protest was filed on March 4, 1996 against the members of the then-named Uncommitted slate, now called the Rank and File slate.  In essence, Mr. Gilmartin alleges that the Rank and File slate has successfully persuaded the local union to have its members vote as to whom the delegates to the International convention should support for International officers.  The protester asserts that such a poll or vote would amount to an unlawful use of union resources for campaign purposes.

The head of the Rank and File slate, Robert Bell, a member of Local Union 559, denies any political motivation in his motion and sees nothing wrong with the membership instructing its own delegates as to how to vote at the International convention.

The protest was investigated by Regional Coordinator Bruce Boyens.

Tom Gilmartin

March 14, 1996

Page 1

The facts are undisputed.  There are two slates running for delegats and alternate delegate positions from Local Union 559 to the International convention.  One slate, composed of Mr. Bell, George Clark and Luther B. Henry, Jr., are the Rank and File slate and are not committed to any candidate.  The other slate, consisting of Robert Dubian, Roy Sullivan and Rick Fattini, are pledged to General President Ron Carey and are known as the Members for Ron Carey slate.

On March 3, 1996, Local Union 559 held a monthly membership meeting attended by approximately 80 members.  During the meeting, Mr. Bell made a motion to have the local union poll its membership as to how delegates at the International convention should vote for International officers.  Mr. Gilmartin, chairing the meeting at the time, ruled the motion out of order.  Mr. Bell called for a vote on the chair’s ruling, and the meeting overruled the chair.  The members at the meeting then voted to conduct such a poll.

The Election Officer finds that the proposed polling of the membership violates the Rules.  The Consent Decree entered into by the IBT and the government on March 14, 1989, as amended, gives the Election Officer broad authority to supervise all phases of the International union delegate and officer election.  In exercising this authority, the Election Officer has promulgated the Rules and retains the authority to interpret, enforce and, when necessary, amend the Rules.  Article I of the Rules explicitly recognizes the Election Officer’s authority “to take all necessary actions in supervising the election process to ensure fair, honest, open, and informed elections.”  This broad authority of the Election Officer has been recognized by the Court.[1]

In essence, Local Union 559’s requirement to instruct its delegates by polling the members creates an obligation upon delegates that is not found anywhere in the Rules.  By changing the responsibilities of delegates to the International convention, the local union has, in fact, attempted to have local union policies or practices supersede the Rules.  This is unacceptable. 

The history of the Election Rules demonstrates that they were designed to entirely supplant local union control over the selection of delegates.  In 1990, then-Election Officer Michael Holland originally proposed Election Rules that gave local unions substantial authority to conduct their own elections for delegates and alternate delegates to the International convention.  Upon application to the District Court, Judge Edelstein refused to approve that section of the Election Rules, finding:

Tom Gilmartin

March 14, 1996

Page 1

Complete supervision of all facets of the election process is the only way to guarantee the integrity of the elections and encourage extensive rank and file participation.  To that end, the Election Officer must oversee each and every facet of this election in order to prevent any possibility of fraud, coercion, intimidation, harassment, or threat in any of its varied forms.

United States v. IBT, 742 F. Supp. 94, 106 (S.D.N.Y. 1990), affirmed as modified,

931 F.2d 177 (2d Cir. 1991).  The 1990-91 Rules were accordingly modified to have the Election Officer conduct and supervise all aspects of the local union elections for delegates and alternates to the International convention.

The current Rules, modeled substantially on the 1990-91 Rules, provide for detailed regulation over the eligibility of candidates, the limits for campaigning, the use of campaign contributions, the holding of nomination meetings, the conduct of the mail ballot, the counting of the ballots, and the procedure for objecting to the election.  The Rules do not provide for additional measures by the local union to instruct or bind delegates as to how to vote on issues before the International convention.  Given the purpose of the Rules and the goals of the Consent Decree, the Election Officer finds that such instruction by a local union violates the Rules by attempting to have the local union intrude on the Election Officer’s authority to supervise and conduct all facets of the election.

If the members of a local union wish to make their preferences for International officers known to the International convention, there is an easy way to do it:  elect candidates for delegate and alternate delegate who are committed to that candidate or slate of candidates.  Here, anyone who wants to “commit” Local Union 559’s delegates to vote for Ron Carey have only to vote for the Members for Ron Carey slate during the secret balloting.  If union members had wanted to send delegates committed to one of the other candidates for general president to the International convention, one would think that one or more members would seek nomination and run as a candidate for delegate or alternate.  That is the way the Rules envision that local unions make their preferences known, not through some new procedure which might have the effect of electing delegates personally committed to one candidate but then instructed by the membership--for whatever reason--to vote for another candidate.

There is an additional reason why the proposed membership poll violates the Rules.

In Giacumbo, et al., P-001-IBT-PNJ, et seq. (September 29, 1995), aff’d, in pertinent part,

95 - Elec. App. - 32 (KC) (November 1, 1995), the Election Officer found that portions of a poll conducted by the International union constituted a prohibited campaign contribution because the responses had the foreseeable effect of influencing Mr. Carey’s election.  Similarly, the Election Officer finds that a local union membership poll seeking to determine which International candidates the members support, even if such a poll is not binding on the delegates, has the foreseeable effect of influencing the election on behalf of the favored candidate(s).  Therefore, such a poll would be a prohibited campaign contribution by the local union in violation of Article XII, Section 1(b).

For the foregoing reasons, the protest is GRANTED.

Tom Gilmartin

March 14, 1996

Page 1

When the Election Officer determines that the Rules have been violated, she “may take whatever remedial action is appropriate.”  Article XIV, Section 4.  The Rules provide a wide range of possible remedies, without providing any limitation.  The broad scope of her supervisory responsibility for the elections, as recognized by the Consent Decree and subsequent decisions of the Court, gives the Election Officer substantial discretion in formulating a remedy to fit the particular violation.

Here, there is only one remedy that is appropriate.  Local Union 559, its officers and agents, are hereby ordered that they may not conduct a vote or poll of any kind which would purport to instruct or bind the elected delegates and alternate delegates to the International convention as to how they may vote for any candidate for International office.

Within two (2) days of the date of this decision, Local Union 559 is ordered to post the attached notice on all local union bulletin boards.  Within five (5) days of the date of this decision, the local union shall file an affidavit with the Election Officer detailing its compliance with this decision.

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

Bruce Boyens, Regional Coordinator

NOTICE TO MEMBERS OF LOCAL UNION 559

FROM BARBARA ZACK QUINDEL,

IBT ELECTION OFFICER

At a recent membership meeting the local union voted to conduct a poll of the members for the purpose of instructing the local union delegates and alternates to the International convention how they should vote for any candidate for International office.  I found that this action violated the Election Rules because it put the local union in the position of running a preliminary election not recognized under the Rules.  The Rules are designed to make sure the members, by casting individual secret ballots in a supervised election, select their delegates to the International convention and their International officers.  This is the way in which the members express their preferences in this election.

Therefore, I have instructed the local union not to conduct any vote or poll of any kind regarding members’ preference of candidates for International office.

__________________________

BARBARA ZACK QUINDEL

ELECTION OFFICER

This is an official notice and must remain posted for 30 consecutive days from the day of posting, and must not be altered, defaced or covered by any other material.