Protest Decisions

              July 1, 1996

VIA UPS OVERNIGHT

Tom Feeley

July 1, 1996

Page 1

Tom Feeley

34-21 Review Avenue

Long Island City, NY 11101

Richard Volpe, Secretary-Treasurer

Teamsters Local Union 550

6 Tuxedo Avenue

New Hyde Park, NY 11040

James P. Hoffa

2593 Hounds Chase

Troy, MI 48098

Nathaniel Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY 10036

Tom Feeley

July 1, 1996

Page 1

Re:  Election Office Case No. P-810-LU550-NYC

Gentlemen:

A pre-election protest was filed pursuant to Article XIV, Section 2(a) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by

Tom Feeley, a member of Local Union 804.  Mr. Feeley alleges that James P. Hoffa, a candidate for general president, and Local Union 550 Secretary-Treasurer and candidate for International vice president Richard Volpe, impermissibly used the resources of a trust to make an improper employer contribution to the campaign of Mr. Hoffa.  The protester alleges that Mr. Volpe sent a letter signed by Mr. Hoffa requesting a copy of all local union work-site lists using Local Union 550 Health Benefits Fund’s (“Fund”) postage meter.  Mr. Feeley also alleges that Fund personnel, office space and “other overhead expenses” were used in connection with this mailing.

Tom Feeley

July 1, 1996

Page 1

In response, Mr. Volpe states that Mr. Feeley’s protest is untimely because the mailing referred to by the protester occurred in May, and that Mr. Feeley was aware of the mailing at that time.  As to the merits, Messrs. Volpe and Hoffa admit that Fund’s postage meter was for the postage to mail Mr. Hoffa’s letter to all local unions within Joint Council 16 (except Local Unions 550 and 817).  Mr. Volpe states, however, that he personally reimbursed the Fund.  Mr. Volpe states that he paid for the envelopes and paper personally, and denies that any other trust fund resources were used to facilitate the mailing.  According to Mr. Volpe, the actual typing and stuffing of envelopes was done on non-work time by himself and Kevin Currie, a Hoffa ‘96 staffer.  Mr. Hoffa states that while he provided the letter to Mr. Volpe for the purpose of obtaining work-site lists, he did so at Mr. Volpe’s request.  Mr. Hoffa states that he was completely unaware of Mr. Volpe’s use of the trust’s postage meter.  Mr. Hoffa also states that he specifically admonished Mr. Volpe not to use union funds or facilities to mail the letter.  Finally, Mr. Hoffa argues that the protested letter is not campaign literature.

This protest was investigated by New York City Protest Coordinator Barbara C. Deinhardt.

1.  Timeliness

Mr. Volpe first argues that Mr. Feeley failed to file this protest with the Election Officer in a timely manner.  Mr. Feeley responds that he received a letter in the mail from Mr. Hoffa requesting a copy of the Local Union 72 work-site list on May 15, 1996.  The letter was addressed to Joseph Padellaro, trustee of Local Union 72.  The envelope had a postage meter stamp on it and was postmarked Hyde Park.  Local Union 550, which Mr. Volpe heads, is located in Hyde Park.  Mr. Feeley immediately set out to confirm where the postage meter number was registered through a friend employed by the Post Office.  Despite several follow-up calls to this source, Mr. Feeley did not find out until June 13 that the postage meter number was registered with the Local Union 550 Welfare Fund.  Mr. Feeley immediately filed the protest, which was received by the Election Office on June 14.

Article XIV, Section 2(b) of the Rules requires protesters to file “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 in 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.

Mr. Feeley first received a copy of the mailing in question on May 15, but contends that he did not have sufficient information that a Rules violation had occurred until June 13.  Moreover, the Election Officer has not treated time limits as an absolute jurisdictional requirement, but rather as a prudential restriction.  Given the seriousness of the allegations in this protest, the Election Officer finds it will better serve the underlying purposes of the Rules to resolve it on the merits.

2.  Allegation of Impermissible Use of Trust Fund Resources

Tom Feeley

July 1, 1996

Page 1

There is no dispute that the Fund is a trust. The term “employer” is defined under the Rules to include “any individual, corporation, trust, organization or other entity that employs another, paying monetary or other compensation in exchange for that individual’s services.”  Rules, Definitions, 17. Article XII of the Rules prohibits an employer from making any campaign contributions to the campaign of a candidate for delegate or International office.  The Rules define “campaign contributions” to include “any direct or indirect contribution of money or other thing of value where the purpose, object or foreseeable effect of that contribution is to influence the election of a candidate.”  Rules, Definitions, 5.  As stated in the Election Officer’s Advisory on Campaign Contributions and Disclosure, such contributions can include any goods, compensated services or any material things of value.

The Rules, at Article XII, Sections 1(a) and 1(b)(1), also prohibit any candidate from accepting a campaign contribution from an employer.  Under Article XII, Section 1(b)(9), candidates are strictly liable to ensure that each contribution received is permitted under the Rules, whether the contribution is solicited or unsolicited.

The Election Officer credits Mr. Volpe that he only used the postage meter and not other resources or personnel of the Fund.  The protester has presented no evidence suggesting that Fund resources beyond the postage meter were used for campaign purposes.

Messrs. Hoffa and Volpe, while admitting that Fund resources were so used, offer several defenses as to why such conduct should not be found in violation of the Rules.  First, they argue that a letter from Mr. Hoffa requesting work-site lists is not campaigning.  It cannot credibly be argued that Mr. Hoffa’s letter, which refers to his status as an accredited candidate for general president and seeks a copy of local union work-site lists for the implied purpose of campaigning, does not support Mr. Hoffa’s candidacy.[1]  Maximizing a candidate’s ability to communicate its campaign message to IBT members is the underlying reason this right has been afforded to candidates in the Rules.  When the resources of an employer, such as the Fund, has been used to pay for a campaign mailing, the Rules have been violated.  Second, they argue there is no violation because Mr. Volpe has reimbursed the Fund for the postage.  The Election Officer notes while this may affect the remedy, it does not change the fact that an improper contribution was made.  Mr. Hoffa also argues that he had previously admonished Mr. Volpe not to use union resources to mail the letter.  As the Election Officer previously stated in Pratt, P-649-LU966-NYC, aff’d, 96 - Elec. App. - 168 (April 15, 1996), a candidate is strictly liable for accepting prohibited campaign contributions.

Tom Feeley

July 1, 1996

Page 1

In consideration of the foregoing, Mr. Feeley’s protest is GRANTED.

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. 

The Election Officer orders the following remedy:

1.  The Fund shall cease and desist from making any further contribution to the campaign of a candidate for International office.  The Election Officer further orders the Hoffa campaign and Mr. Hoffa to cease and desist from accepting a campaign contribution from this or any other employer.

2.  The Election Officer orders Mr. Hoffa and/or Mr. Volpe, within two (2) days of the receipt of this decision, to submit to the Election Officer an affidavit stating which local unions received the prohibited campaign mailing.  Within five (5) days of the receipt of this affidavit, Mr. Volpe and Mr. Hoffa will each execute the attached notice and mail it to the principal officers of all local unions within Joint Council 16 (except Local Unions 550 and 817) for posting on bulletin boards located at respective local union headquarters.  This mailing shall be paid for by Mr. Hoffa’s campaign.  Further, within two (2) days of such postings, Mr. Volpe and Mr. Hoffa will separately execute affidavits detailing their compliance with this Order.

Mr. Volpe, who is a candidate aligned with Mr. Hoffa, already has returned $13.46 to the trust fund, which constitutes the full cost for the use of the postage meter.  The Election Officer finds, therefore, that no further monetary remedy is necessary in this case.

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, 1966).

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

Tom Feeley

July 1, 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

Barbara C. Deinhardt, New York City Protest Coordinator

Tom Feeley

July 1, 1996

Page 1

Notice to Members of Local Unions Within Joint Council 16

from Richard Volpe and James P. Hoffa

The Election Officer has found that we violated the Election Rules when Mr. Volpe used the Local Union 550 Health Benefits Fund’s postage meter to mail a letter requesting work-site lists on behalf of James P. Hoffa, a candidate for general president.

We have been ordered to cease and desist from accepting campaign contributions from any employer.  Mr. Volpe has reimbursed the Fund for the cost of this mailing.  The mailing of this notice to affected local unions was paid for by Mr. Hoffa’s campaign.

We understand that the use of employer resources is prohibited under the Election Rules and will not use such resources in the future.

___________________________                            _____________________________

James P. Hoffa                                                                      Richard Volpe

This is an official notice which must remain posted for 30 consecutive days and must not be defaced or altered in any manner or be covered with any other material.

Approved by Barbara Zack Quindel, IBT Election Officer.