April 3, 1996
VIA UPS OVERNIGHT
Jose Caraballo
323 Hickory Street
Teaneck, NJ 07666
Pride and Power Slate
c/o Fred Alston, Secretary-Treasurer
Teamsters Local Union 272
220 E. 23rd Street, Room 801
New York, NY 10010
Re: Election Office Case No. P-653-LU272-NYC
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 Jose Caraballo, a member of Local Union 272 and candidate for delegate on the Rank-File Unity slate.
Mr. Caraballo alleges that Local Union 272 Secretary-Treasurer Fred Alston and the slate he heads, Pride and Power, have violated the Rules by: (1) stalling on a campaign mailing that Mr. Caraballo wanted to make and (2) having local union business agents distribute Pride and Power campaign literature on union time, using union vehicles.
This protest was investigated by New York City Protest Coordinator Barbara Deinhardt.
1. Allegations of Delay Regarding the Campaign Mailing
Jose Caraballo
April 3, 1996
Page 1
On Wednesday, March 13 or Thursday, March 14, 1996, Mr. Caraballo spoke by telephone with a staff person at the Local Union 272 office about doing a campaign mailing. He asked for the number of members in order to arrange for copying and said that he wanted labels. He did not say at that time that he wanted to use a mail house to affix the labels. The local union contacted Regional Coordinator Arthur Wasserman to discuss its obligations under the Rules, and it called Mr. Caraballo at approximately 11:15 a.m. on Friday, March 15 to tell him to submit his request in writing. Mr. Caraballo did so by fax at about 5:30 p.m. That fax stated that he wanted labels sent to a mail house by Tuesday, March 19. In order to determine whether it was obligated to do so, the local union contacted Mr. Wasserman again, who reviewed the applicable sections of the Rules.
On Monday, March 18, Mr. Caraballo took his mailing to the mail house and contacted the local union for labels. Mr. Alston refused to release labels to the mail house and told
Mr. Caraballo that he would have to affix the labels to his mailing at the local union office. Mr. Caraballo then called the other members on his slate, decided to do the mailing on Thursday, March 21, and informed the local union of that decision on Tuesday, March 19. When members began receiving their mail ballots on Wednesday, however, Mr. Caraballo decided his mailing would be too late and called it off.
Article VIII, Section 7(a)(1) of the Rules puts local unions under an obligation to afford “[e]ach candidate . . . a reasonable opportunity, equal to that of any other candidate, to have his/her literature distributed by the Union, at the candidate’s expense.” Section 7(b) requires that “[a]ny request for distribution of literature shall be made by the candidate to the Secretary-Treasurer of the Union in writing.” Section 7(e) states that “The Union shall exercise all reasonable efforts to insure that each candidate's campaign literature is processed and distributed in a complete and prompt manner.”
These provisions do not require local unions to release copies of their mailing lists or labels. Rather, the requirement is for the local union to afford an opportunity to have literature distributed “by the Union.” Thus, this provision allows a local union to protect its membership list. This is consistent with the limited right under Article VIII, Section 2 of the Rules for candidates to inspect a local union’s membership list but not copy it. The Election Officer finds that Local Union 272 did not violate the Rules by refusing to send labels to
Mr. Caraballo’s mail house as requested.
Local Union 272 did, however, have an affirmative obligation to “exercise all reasonable efforts” to process Mr. Caraballo’s mailing request “in a complete and prompt manner.” This required the local union to inform Mr. Caraballo promptly of how it would handle his mailing. The Election Officer finds that the local union took reasonable steps to determine its obligations and responded to Mr. Caraballo’s written request, filed Friday at the close of business, on the following Monday. These actions satisfied the Rules.
2. Campaigning on Local Union Time
Mr. Caraballo works at a GGMC garage in New York City. He alleges that Local Union 272 Business Agent Frank Giordano came into his garage on March 19, 1996 at approximately 9:15 a.m. and handed him campaign literature for the Pride and Power slate. Mr. Caraballo contends that Mr. Giordano was on local union time and that he was driving a local union car.
Jose Caraballo
April 3, 1996
Page 1
Article VIII, Section 11(b) provides:
All Union officers and employees, if members, retain the right to participate in campaign activities, including the right . . . to openly support or oppose any candidate . . . However, such campaigning must not involve the expenditure of Union funds. Accordingly, officers and employees (and other members) of the Union may not campaign on time that is paid for by the Union. Campaigning incidental to regular Union business is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is also not violative of this section.
Mr. Giordano states that he was on break time when he delivered literature to
Mr. Caraballo. He asserts that he takes a break around 9:00 or 9:30 a.m. each day, at no specific time, and that “I either grab something to eat or sit in the car or maybe go into a garage. In the past few weeks I have used some of my breaks to drop off literature, maybe a couple each day--but not every place I went to.”
The Election Officer finds that Mr. Giordano’s time report for March 19, 1996, shows that he distributed literature to Mr. Caraballo during a break: “9:15/9:25 GGMC 34 ST Jose Carraballo [sic] (Break).” The Election Officer notes, however, that Mr. Giordano did not record many of the other breaks he describes in the statement quoted above. A review of his time reports for the four-week period from February 26 through March 22 shows a “break” entry on only one other day.
Local Union 272 states that its break policy for business agents does not prescribe a set time or duration. Business agents carry beepers and are considered to be on 24-hour call. Some business agents record their breaks, some do not. The local union does not require such records.
The Election Officer finds that Mr. Giordano’s time reports for the time period mentioned above show work days from six hours to 11.75 hours, averaging almost 9.5 hours per day. They also show work on Saturdays and Sundays. In similar circumstances arising from a local union officer election, the U.S. District Court for the Western District of Washington held that local union officers and employees:
Jose Caraballo
April 3, 1996
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. . . did not work regular hours, that they clearly worked more than a normal forty hour work week and that the [local union] had an informal policy allowing these individuals to take time during regular business hours to attend to their personal business, without any requirement that they keep records of such time, or ask permission to take such time. The hours worked by these individuals outside of regular business hours substantially exceeded the time these individuals spent campaigning. Under these circumstances, the Court finds that the time spent campaigning by [local union] officers and employees was personal time, and did not involve an unlawful expenditure of union funds on campaigning.
Dole v. International Ass’n of Machinists, AFL-CIO, Local Lodges 751-A, 751-C, 132 L.R.R.M. 2498 (W.D.Wa 1989).
Based on the evidence presented, the Election Officer finds that Mr. Giordano was on break when he distributed campaign literature to Mr. Caraballo and, therefore, was campaigning on personal time, as permitted by the Rules.
Accordingly, 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
Barbara Deinhardt, New York City Protest Coordinator
Arthur A. Wasserman, Regional Coordinator