James P. Hoffa
August 16, 1996
Page 1
August 16, 1996
VIA UPS OVERNIGHT
James P. Hoffa
August 16, 1996
Page 1
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Ron Carey, General President
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
Robert Muehlenkamp, Director
Organizing Department
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
John Sullivan, Associate General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman, P.C.
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
Martha Walfoort
James & Hoffman
1146 19th Street, N.W., Suite 600
Washington, DC 20036
Richard Brook
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
James P. Hoffa
August 16, 1996
Page 1
Re: Election Office Case No. P-812-IBT-NYC
Gentlepersons:
James P. Hoffa, a member of Local Union 614 and candidate for general president, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) alleging that the IBT has engaged in a pattern of Rules violations relating to its International organizers and their activities. Specifically, Mr. Hoffa alleges in his protest and supporting materials that: (1) the IBT summoned its International organizers to a meeting in Washington, D.C. on June 2 and 3, 1996 (“staff meeting”), ostensibly to discuss Convention arrangements, but actually to subject them to campaigning for the re-election of General President Ron Carey; (2) the meeting started with a presentation by IBT Associate General Counsel John Sullivan “summarizing the ‘do’s and don’ts’ of campaigning for Carey while working at a local union or otherwise working for the IBT;” (3) organizers attending the meeting were pressured to attend a Carey fundraiser (“fundraiser”) on the evening of June 2 and that organizers who did not attend were thereafter “shunned and ostracized;” (4) during and after the meeting, IBT officials sought to coerce organizers into contributing to Mr. Carey’s campaign and sought to intimidate and threaten organizers who declined; (5) after the meeting, certain organizers repeatedly contacted other organizers “to advise them that their main priority was to campaign for Ronald Carey” and that “these statements were accompanied by implied and expressed threats that their jobs depend upon it;” (6) after the meeting, certain organizers repeatedly contacted other organizers to tell them that “persuading delegates to the July Convention to sign forms pledging their support to Ronald Carey was their top work priority;” and (7) the IBT has developed and uses a rating system under which International support and services to local unions are provided or withheld according to an assessment of whether the local union’s leadership favors or opposes Mr. Carey.
James P. Hoffa
August 16, 1996
Page 1
The IBT denies all allegations of Rules violations. Specific responses are discussed in the sections below that pertain to specific charges.
This protest was investigated by Regional Coordinator Bruce Boyens, New York City Protest Coordinator Barbara C. Deinhardt and Protest Chief Benetta Mansfield.
The gravamen of Mr. Hoffa’s protest is that the IBT has used its Organizing Department to foster or coerce its International organizers and representatives to give money to and work for Mr. Carey’s re-election campaign. The protest charges that the IBT used the June staff meeting to campaign among organizers and representatives and as an excuse for transporting them to Washington, D.C. so that they could attend the fundraiser and receive campaign assignments from the Carey campaign headquarters. It also charges that the Organizing Department has continued to foster or coerce campaigning by organizers and representatives since then. Mr. Hoffa contends that these alleged misuses of the IBT’s Organizing Department constitute improper contributions by the IBT to the Carey campaign, in violation of the Rules.
The Election Officer’s investigation into activities charged in this protest was extensive. The Election Officer and her representatives interviewed 25 people. Whenever possible, these interviews were in-person and sworn statements were taken. As the investigation progressed, the Election Officer extended it to cover other allegations involving the IBT Organizing Department that were raised by the protester’s witnesses and other witnesses identified by the Election Officer during the investigation. Thus, allegations aboutevents that took place prior to June 2 and 3 have been considered. [1] The Election Officer is confident that a thorough investigation into potential Rules violations by the IBT Organizing Department has taken place.
This decision first addresses the events and time periods raised in the protest. Part II covers allegations arising from the staff meeting and the fundraiser. Part III covers allegations arising thereafter. The decision then addresses, in Part IV, the allegations uncovered in the Election Officer’s investigation, including allegations from the period before June 2 and 3. Part V addresses the allegation that the IBT bases its assistance to local unions on a rating system that assesses support for Mr. Carey.
I. Introduction
Understanding the structure of the IBT Organizing Department is important in understanding the allegations in this protest. The director is Robert Muehlenkamp, who describes himself as the “ultimate supervisor” of the Department. Beneath Mr. Muehlenkamp are two coordinators, Gary Stevenson and John August, who give organizers their work assignments and to whom organizers report. Mr. Muehlenkamp states that Mr. Stevenson has the power to hire and fire organizers. Mr. Muehlenkamp may also appoint specific organizers to supervise certain campaigns. For example, Mr. Stevenson and David Eckstein were appointed to act in a supervisory capacity on the campaign to organize Overnite Transportation.
The Organizing Department employs a staff of approximately 35 permanent organizers. In addition, the Department employs project organizers for particular organizing campaigns or on a term basis. Project organizers are not considered permanent employees and many work part-time or, as implied by the position title, on a particular organizing project. As described by Mr. Muehlenkamp and many witnesses, organizers assigned to a specific campaign do not have set hours and often work 12 to 15 hours a day leafleting at work sites, making home visits and performing other tasks related to the organizing campaign.
By memorandum dated May 10, 1996, the IBT invited all of its International representatives, organizers and DRIVE representatives[2] to attend a meeting in Washington, D.C. on June 2 and 3. According to Mr. Muehlenkamp, the decision to hold the meeting was made by Mr. Carey so that attendees, who do not normally meet together, could all be briefed on plans for the IBT Convention at the same time. The memo issued from Aaron Belk, executive assistant to Mr. Carey, and Trish Hoppey, convention director. It stated, “As part of our preparation for the Convention, we will be bringing you up-to-date on the status of the Convention arrangements and your assignments at the Convention.” Approximately 90 International representatives and organizers attended.
The staff meeting started on June 2 at approximately 10:00 a.m. During the meeting, there was a presentation by IBT Associate General Counsel John Sullivan about the Rules as they pertain to campaigning, there was a break-out session during which Mr. Muehlenkamp asked representatives and organizers to talk in small groups and develop lists of issues that they considered to be important to the membership in connection with the Convention, and there was a presentation on financial issues.
On the evening of June 2, there was a fundraiser to support Mr. Carey’s campaign. All of the representatives and organizers were invited. About 250 people attended the fundraiser, including many of those attending the staff meeting.
Following the events of the weekend of June 2, many organizers were involved in the continuing effort to solicit funds and obtain pledge cards on behalf of the Carey campaign. These efforts were also the basis for the charges brought by the protester.
During the investigation, the Election Officer found that five of the eight organizers contacted by her investigators were reluctant to provide information unless their anonymity was protected, and some appeared genuinely frightened at the perceived prospect of suffering retaliation within the Organizing Department. The Election Officer notes that many of the organizers interviewed in this matter credibly expressed that they thought their jobs were at risk if they did not support Mr. Carey’s re-election, contribute to Mr. Carey’s campaign or volunteer to campaign for Mr. Carey. Many witnesses also expressed the view that they thought their jobs were at risk if they cooperated with the investigation. The Election Officer views such matters very seriously.
The Election Officer recognizes, however, that such beliefs are not necessarily evidence that the Rules have been violated. Certain aspects of the Organizing Department’s structure, noted above, are not conducive to job security, such as the mixture of permanent and part-time employees, the irregular hours of organizers and the fluidity of their assignments. Heightened anxiety may flow from the fact that the Organizing Department has expanded significantly during the Carey administration, whereas Mr. Hoffa has been critical of “excessive spending” by the Carey administration. If organizers concluded in this mix of circumstances that supporting Mr. Carey would increase the chances of future employment for themselves and other organizers, it would not violate the Rules for them to talk about it on non-work time. It would also not violate the Rules for supervisors to discuss such issues with employees on non-work time, as long as discussions were free from coercion. Finally, the Election Officer notes that employee perceptions that supervisors are watching them for political activity and taking such activity into account in making personnel decisions do not create a violation if the evidence does not show that supervisors are actually doing so.
The backdrop in which this protest arises may accentuate such perceptions. The fact that Mr. Carey is general president of the IBT and a candidate for re-election can create the potential for job-related coercion.[3] The investigation also revealed instances of Organizing Department administrators having dual roles as supervisors and as Carey campaign volunteers and other instances of supervisors taking temporary leave to work for the Carey campaign. When such persons contact Organizing Department employees on campaign matters, there is a potential that employees will fear a connection to their jobs or want to curry favor. Finally, the investigation revealed instances in which Organizing Department employees felt coerced during campaigning by non-supervisory co-workers out of fear that the co-workers had developed relationships with supervisors through campaigning and were tacitly speaking for them. While such relationships and interaction can foster perceptions of a link between job security and campaign activity, none of these situations necessarily constitutes a Rules violation. All of them, however, show the need for observing and maintaining the distinction between legitimate, job-related concerns and the personal right under the Rules for all members to campaign or not campaign for whomever they choose.
In view of the fears and beliefs of witnesses, noted above, the Election Officer has carefully examined the allegations in this protest to determine whether actual links between campaign activity and actions or threats related to their jobs have taken place, in violation of the Rules. Certain specific violations are found, and remedies are prescribed. These remedies are designed to prevent any future violations and ensure that the union understands its obligation not to link campaign activity with conditions of employment, as well as to ensure that all members on the IBT’s staff understand their right to campaign according to the Rules, free from any job-related consequences.
II. The June 2 and 3 Events
A. Allegations of Campaigning at the Staff Meeting.
The June 2 staff meeting started at approximately 10:00 a.m. Mr. Hoffa characterizes the staff meeting as a “campaign seminar”[4] and states that attendees “were subjected to a series of transparently partisan events, designed to enlist their participation in various campaign strategies on behalf of Ronald Carey.” He argues that the stated purpose of the meeting--preparing for the Convention--was a sham, observing that “no actual Convention assignments or hotel assignments were made.”
Mr. Hoffa takes particular issue with three portions of the staff meeting. He alleges that it opened with a presentation by Associate General Counsel Sullivan during which he improperly summarized the “do’s and don’ts” of campaigning for Carey while working for the IBT.
Mr. Hoffa also takes issue with a break-out session, during which Mr. Muehlenkamp asked representatives and organizers to talk in small groups and develop lists of issues that they considered to be important to the membership in connection with the Convention. The protester states that this was improper because it was an improper poll and, thus, a contribution to the Carey campaign. Mr. Hoffa relies on the Election Officer’s decision in Giacumbo, P-001-IBT-PNJ et seq. (September 29, 1995) (finding that certain questions in IBT poll had campaign content), aff’d in pert. part, 95 - Elec. App. - 32 (KC) (November 1, 1995).
The protester’s third objection to the content of the staff meeting is his general allegation that some of the discussion of the political positions taken by the candidates, and that the presentation on finances tracked the “Carey campaign’s ‘party line.’”
The IBT denies that it used the staff meeting as a forum to campaign among International representatives and organizers. It furnished the Election Officer with a copy of the agenda. Mr. Sullivan’s portion of the program is titled, “Clarification of roles and responsibilities of Reps and Organizers/Compliance with and Overview of Election Rules.” Another portion of the program is entitled, “Identification and Discussion of Union Policy Issues for Debate on the Convention Floor.”
Article XII, Section 1 of the Rules defines and prohibits contributions by labor organizations to International candidate campaigns. Subsection (b)(1) provides:
No labor organization, including . . . the International Union . . . may contribute, or shall be permitted to contribute, directly or indirectly, anything of value where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate . . . .
Subsection (b)(4) makes clear that prohibited contributions include the personal efforts of members if they campaign “during time that is paid for by the Union [unless] incidental to work or regular Union business or during paid vacation, paid lunch hours or breaks, or similar paid time off . . . .”[5]
In assessing allegations under Article XII, Section 1 of the Rules, the Election Officer has stated,
Where the IBT or an affiliate is accused of making a campaign contribution through its activities, the “purpose, object or foreseeable effect” of the conduct must be examined in light of the union’s legitimate activities and functions . . . . [R]estrictions on campaigning must not be read so broadly as to restrict the right and the responsibility of union officers to conduct their official business . . . .
Fahling, P-778-LU320-NCE (May 29, 1996), aff’d, 96 - Elec. App. - 197 (KC) (June 11, 1996); Faulkner, P-293-IBT-CLE (March 25, 1996), aff’d, 96 - Elec. App. - 159 (KC)
(April 4, 1996). See Martin, P-010-IBT-PNJ et seq. (August 17, 1995) (decision on remand), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995).
In this matter, the protester’s assertions of overt campaign activity at the staff meeting were not supported by the witnesses. One witness, who declined to be identified,[6] stated with respect to Mr. Sullivan’s presentation about the Rules that:
Sullivan talked about what we could and couldn’t do in campaigning. I didn’t feel like he was being political or pressuring anybody. There was a theme, an assumption that everyone would be campaigning for Carey--it was a given--he was just telling us what the rules were.
Another witness stated that Mr. Sullivan’s presentation was about “do’s and don’ts--what we could do without getting caught.” This witness supported the allegation that attendees were advised to pay for their own gas if using an IBT-supplied car for campaigning, although the statement was attributed to Mr. Muehlenkamp instead of Mr. Sullivan.
The Election Officer finds that such testimony is not evidence that Mr. Sullivan’s presentation violated the Rules. All union employees, if members, have a protected right under Article VIII, Section 11(b) of the Rules “to participate in campaign activities, including the right to . . . openly support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions,” as long as such campaigning does not involve the expenditure of union funds or the use of paid union time.[7] With respect to using union-owned or leased cars for campaign purposes, Section 11(c) allows employees to do so if they are “otherwise afforded the right to utilize those cars for personal activities . . . provided no costs, or expenses incurred as a consequence, of such use are paid out of Union funds . . .”
All parties agree that International representatives and organizers often work long, irregular hours. Giving guidance to such employees on how to keep work and campaigning separate is a legitimate function of the IBT. As the Election Officer recognized for business agents in Caraballo, P-653-LU272-NYC (April 3, 1996), accommodating the right to campaign is more difficult for employees having long and irregular hours than for employees having regular starting and stopping times, meals and breaks. Furthermore, the advice given on how to avoid union expense when using a leased car for personal campaign activity was correct. The witness’s statement that there was an unstated assumption that representatives and organizers would campaign for Mr. Carey does not make out a violation of the Rules. In the absence of any evidence of partisan political content, the Election Officer finds that Mr. Sullivan’s presentation was legitimate and, therefore, permissible.
With respect to the break-out discussion that the protester characterizes as a campaign poll, the Election Officer finds no evidence of campaign content. While the International representatives and organizers were not given specific Convention assignments at the staff meeting, all were subsequently designated by Mr. Carey as appointed Convention delegates, pursuant to his authority under Article III, Section 5(c) of the IBT Constitution. The Election Officer finds that it was a legitimate function of the IBT to generate discussion among this group about their thoughts as to what issues would interest members at the Convention. In Hoffa, P-849-IBT-MGN (July 14, 1996), the Election Officer decided that the Rules do not bar the IBT from communicating with members on matters of internal policy, even if “similar to positions taken by the Carey campaign, as long as such a view is communicated without urging support of or opposition to any candidate.” The IBT is equally free to communicate its positions to its own employees and to solicit information from them.
Similarly, the Election Officer finds no Rules violation in the protester’s allegation that the IBT’s presentation of financial issues tracked the Carey campaign’s “party line.” “[P]olicy issues within the union are frequently adopted as campaign issues in the campaigns of the International officers.” Szymanski, CONV-9-IBT et seq. (July 16, 1996). Such adoption does not disable the IBT, or any local union or official, from continuing to discuss or promote them. “The Election Officer has . . . repeatedly stated that the IBT . . . may make known the IBT administration’s position on a variety of issues, regardless of whether those issues are also the subject of debate amongst the candidates.” Hoffa, P-796-IBT-SCE (June 20, 1996). After extensive investigation, the Election Officer did not identify any witness who presented evidence that any part of the program at the staff meeting urged support or opposition to any candidate.
Accordingly, the protester’s allegations of direct campaigning at the June staff meeting are DENIED.
B.Allegation of Using the Staff Meeting to Promote Attendance at the Fundraiser and to Facilitate Meetings at the Carey Campaign Headquarters
Mr. Hoffa also alleges that the staff meeting constituted an indirect campaign contribution, in violation of the Rules, by serving as an excuse to transport International representatives and organizers to Washington, D.C. for the June 2 fundraiser for Mr. Carey and to receive assignments from the Carey campaign headquarters. As evidence, he suggests that the IBT had never before called a meeting of all of its International representatives and organizers, that “minimal Convention related business was discussed,” and that the ostensible purpose of handing out Convention assignments was never fulfilled. Instead, he contends that: (1) “repeatedly, during official meetings and afterward, IBT officials pointedly instructed IBT employees who were compelled to attend the [staff meeting] that they should be at the Washington Court Hotel at 6:00 p.m. on June 2 to attend a Carey campaign fund raiser” and (2) “[i]mmediately after the June 2 session, we understand the IBT staff members were assigned times to report to the Carey campaign’s officers to receive petitions they were required to circulate among IBT members in their regions.”
The Carey campaign states that the June 2 fundraiser was conceived after learning that the IBT had scheduled the staff meeting, intending to take advantage of the fact that all representatives and organizers would be in Washington. Colleen Dougher, a volunteer in charge of fundraising at the campaign, stated to the Election Officer’s investigator that she developed the idea of the fundraiser in mid-May, after learning about the staff meeting. Ms. Dougher works at the IBT as Mr. Carey’s scheduler. However, she states that she did not hear of the meeting in the course of her regular duties because Mr. Carey was not scheduled to speak at it. She believes that she heard about it both at the IBT and at the Carey campaign. Ms. Dougher states that invitations to the fundraiser were mailed to the following groups: IBT representatives; organizers; staff; division directors; “friendly” local union leaders from zip codes in Maryland, Virginia and Washington; and volunteers, contributors and supporters from those zip codes. The cost was $250 per person. Ms. Dougher estimates that 750 to 800 invitations were sent and that about 250 people attended. She further states that the campaign staff was encouraged to contact invitees by telephone, but no special effort was made to get representatives and organizers to come.
The Election Officer finds that the IBT did not schedule the staff meeting as a vehicle to promote fundraiser attendance. In making this finding, the Election Officer credits the testimony of Ms. Dougher that the fundraiser had not yet been envisioned when the staff meeting was scheduled and the fact that the solicitation for the fundraiser was broader than the group of staff meeting attendees.
After extensive investigation, the Election Officer also found no evidence to support the allegation that staff meeting attendees were instructed by anyone with supervisory authority over them to report to the Carey campaign headquarters for campaign assignments. One witness reported a conversation on the street with another attendee after the end of the June 2 session, during which the other attendee said that he was going to a 15-minute organizing meeting at the Carey campaign headquarters. The witness also reported seeing “a few little groups going” as well, but the witness was not asked to go. Another witness stated that David Eckstein, an International representative on leave to work for the Carey campaign, approached a large group sitting in the hall after the June 2 session broke up at 4:00 p.m., asked what they were doing at 5:15 p.m., and said “they wanted us over at Carey headquarters.” The witness went, heard a presentation from Mr. Eckstein and Joe Henry, another International representative on leave to the Carey campaign, and received delegate pledge forms and member petitions. The witness reports being there for about 15 minutes.
These incidents illustrate campaign activity that the Rules protect. Article VIII, Sections 11(a) and (b) guarantee the rights of members, including union employees, to engage in campaign activity on their own time. According to both witnesses, the conversations about meeting at the Carey campaign headquarters took place in public places after the close of the June 2 session. The Carey campaign apparently took advantage of the presence of International representatives and organizers to campaign among them and to solicit their assistance. On this record, the Election Officer finds no coercion of staff meeting attendees to meet at the Carey campaign headquarters.
The Election Officer notes, however, that Mr. Eckstein had been an Organizing Department supervisor before taking leave to work for the Carey campaign.[8] Several witnesses expressed strong feelings that they were not free to ignore Mr. Eckstein’s suggestion to meet at the Carey campaign, despite his lack of supervisory authority at the time. The Election Officer finds that the nature of the comment, the time that it was made and Mr. Eckstein’s capacity at the time all indicate that he did not attempt to pressure his listeners.
The protester’s allegations that the June staff meeting was used to promote attendance at the fundraiser and to facilitate meetings of International representatives and organizers at the Carey campaign headquarters are DENIED.
C.Allegations of Coercing International Representatives and Organizers to Attend the Fundraiser
The protester’s final allegation with respect to the events of June 2 and 3 is his charge that International representatives and organizers were pressured or coerced to attend the fundraiser, or at least to pay the $250-per-person cost of attending. The protester also states that “[p]ersons who did not attend the fundraiser were thereafter shunned and ostracized.”
Article VIII, Section 11(f) of the Rules provides:
Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules is prohibited.
One of the most basic rights under the Rules is the right of all union members under Article VIII, Section 11(a) “to participate in campaign activities, including the right . . . to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.” This right necessarily implies and includes the right to refrain from campaigning. Therefore, any pressure to engage in campaign activity that interferes with a member’s own choice to campaign or not, is a violation of Article VIII, Section 11(a). Any such pressure involving adverse action or a credible threat of adverse action would also violate the prohibition against retaliation in Article VIII, Section 11(f).
With respect to alleged pressure to contribute to the fundraiser, several witnesses reported incidents involving statements by Doreen Gazman, an International representative attending the staff meeting, such as “If you know what’s good for you, you better get your priorities straight--you better come up with the money” and “Well you know it isn’t taken too lightly when you don’t support Ron Carey; are you sure you can’t come up with the money?” Ms. Gazman responds that she spoke with several staff meeting attendees about making contributions to the fundraiser and that she was friendly at all times.
The Election Officer has often stated that the Rules protect the free speech of members on campaign matters, see, e.g., Newhouse, P-388-LU435-RMT (February 21, 1996), even arising to “heated debate.” Dunn, P-110-LU25-BOS (July 28, 1995), aff’d, 95 - Elec. App. - 8 (KC) (August 21, 1995). Speech is no longer protected, however, if it embodies a palpable threat of actual harm. Dunn; Blake, P-785-LU630-CLA (June 19, 1996). In this matter, the Election Officer credits the testimony of witnesses that Ms. Gazman was aggressive in her conversations but notes that Ms. Gazman is a co-worker, not a supervisor. Therefore, she was not in a position to act against anyone not attending the fundraiser and the statements in question were not coercive. As merely aggressive campaigning, they would not violate the Rules.
Focusing on Ms. Gazman’s statements, the Election Officer finds that they were not sufficiently concrete to be palpable threats of actual harm, particularly in view of her lack of authority over anyone with whom she spoke. The most pointed statement--“Well you know it isn’t taken too lightly when you don’t support Ron Carey; are you sure you can’t come up with the money?”--did not threaten an actual consequence. Furthermore, Ms. Gazman did not claim to be speaking for anyone in a supervisory capacity and nothing in the context of the conversations indicates that Ms. Gazman was acting as a supervisor’s implied or actual agent. Accordingly, the Election Officer finds that there is insufficient evidence to sustain the protester’s allegation that staff meeting attendees were coerced to contribute to the fundraiser.
The allegations of coerced contributions to the fundraiser are DENIED.
III. The Time Period after June 2 and 3
Mr. Hoffa’s protest also focuses on the time period after the events of June 2 and 3. He alleges that IBT officials continued their attempts to coerce International representatives and organizers into contributing financially to the Carey campaign and that representatives and organizers were told that their main priorities were to campaign for Mr. Carey and to persuade Convention delegates to sign pro-Carey pledge forms and members to sign pro-Carey petitions.
A. Allegations of Continuing Pressure to Contribute
In March or April 1996, the Carey campaign solicited all IBT employees to make monthly contributions to the campaign. During the course of the investigation, several witnesses reported receiving calls from another non-supervisory International organizer in which that organizer asked whether they were current on their monthly pledges.[9]
The Election Officer has reviewed all of the alleged telephone calls and finds that none violated the Rules. For example, one witness who received such a call alleged that the co-worker said, “You know, you could be out of work. If this General President is not elected, we’ll all be out of work.” This statement does no more than suggest that Mr. Hoffa’s election would put the jobs of current organizers in jeopardy. This view is supported by Mr. Hoffa’s well-known and widely-reported campaign theme that the International union has engaged in excessive spending. It is not an unreasonable inference from such statements that if elected, he would cut back the staff of the International, which would include organizers.[10] The statement does not threaten the recipient with retaliation by the IBT at all, and certainly not in any clear or concrete way or with any apparent authority which would by actionable under the Rules.
The allegations of continuing pressure to contribute to the Carey campaign are DENIED.
B.Allegations of Pressure to Campaign for Mr. Carey and to Solicit Delegate Pledges and Member Petitions
The protester also alleges that the Organizing Department encouraged and coerced International representatives and organizers to campaign for Mr. Carey and to adjust their work hours in order to increase their time to do so. As noted above, representatives and organizers often work long and irregular hours. With respect to similarly situated business agents, the Election Officer recognized in Caraballo, P-653-LU272-NYC (April 3, 1996), that members working such hours may lack regular break, meal and off-duty times in which to exercise their personal right to campaign and must, therefore, be accorded some flexibility in decisions about when to do so. These are campaign decisions, however, and may not be directed by the union.
Mr. Hoffa’s allegations generally concern two initiatives started by the Carey campaign in early-June: a Convention delegate pledge drive and a member petition drive. The goal of the pledge drive was to have Convention delegates sign commitments to support key positions of the Carey campaign. The pledge form bore the Carey campaign logo and started, “Count me as a supporter of the Ron Carey 1996 Campaign . . .” It was also accompanied by an information sheet that identified itself as campaign material. The petition drive was directed at members and sought their signatures on a form addressed to Mr. Carey and entitled, “Don’t Let Employers, Corruption, And The Mob Take Back Our Union!” The form stated on the bottom that it should be mailed to the Carey campaign.
It is undisputed that the Carey campaign solicited help on these drives from International representatives and organizers. The Carey campaign issued a memorandum to all representatives and organizers explaining the drives, designating Messrs. Eckstein and Henry as contact persons on the pledge drive and Joanie Parker, a part-time IBT education coordinator and part-time campaign volunteer, as the contact person on the petition drive. The memorandum stated, “We can use your help,” and concluded with a section setting forth concrete actions that representatives and organizers could take.
The Election Officer subpoenaed the testimony of International Organizer Robert Ramshaw.[11] On May 20, 1996, Ms. Parker left a message on Mr. Ramshaw’s voice mail. The Election Officer’s investigator listened to the tape and made the following general transcription, which is verbatim with respect to the key phrases discussed herein:
Joanie Parker, calling from the Carey campaign. I’m coordinating the petition drive. We’d like to see if you can help out in your free time. I’ve talked it over with Gary and he encourages you to figure out how you can use your time off to help out.
The words “free” and “time off” were accompanied by laughter. It appears that “Gary” refers to Gary Stevenson, who is Mr. Ramshaw’s supervisor.
The Election Officer subpoenaed the testimony of Project Organizer Robert Kreuzer.[12] Mr. Kreuzer states that he received a telephone message on June 19, 1996, from Ms. Parker, who said she was on break and that he should call her back. She left return numbers at the Carey campaign and her desk at the IBT. When Mr. Kreuzer did return her call, he states that she told him that he had to sign a delegate pledge form, get members to sign petitions and “work some gates.” When Mr. Kreuzer responded that he worked 15 hours that day, he alleges that she responded, “No, only eight hours--this is a priority.”
Mr. Kreuzer states that he objected to being told to alter his normal work schedule in order to campaign and complained about the call to Mr. Stevenson and to IBT Vice President Dennis Skelton. Mr. Kreuzer acknowledges that both Mr. Stevenson and Mr. Skelton repudiated the alleged suggestion that he limit his work hours. Mr. Stevenson did not contact Ms. Parker about Mr. Kreuzer’s complaint.
The Election Officer subpoenaed the testimony of project organizer Dean Rogers.[13] On June 6, 1996, Mr. Rogers called Mr. Stevenson’s office to check in. Mr. Stevenson is Mr. Rogers’ supervisor. According to Mr. Rogers, Mr. Stevenson’s secretary asked Mr. Rogers to hold and that Mr. Stevenson wanted to talk to him. Mr. Stevenson then came on the line, said “I’m on my coffee break so I can talk to you,” and asked if Mr. Rogers had received his petitions. When Mr. Rogers said that he had not, he alleges that Mr. Stevenson told him to “get with Dave Eckstein over at campaign headquarters and they’d fax the petitions to me,” adding, “Dean, you understand, this is a matter of life and death.”
The Election Officer’s investigator listened to a tape of a voice mail message left for a witness by International organizer Scott Askey, who made a number of calls to other organizers. Mr. Askey works on two organizing campaigns in and around Las Vegas and volunteers for the Carey campaign. The following general transcription of the message is verbatim with respect to the key phrases discussed herein:
This is Scott Askey at Local Union 995. Info package in mail to you Monday: delegate pledge form, petition, general information. This is a #1 priority for all International organizers and International representatives above everything else. Seek out delegates wherever we are in our areas to support IBT constitutional agenda. This is official business so we are able to do this. If you have problems in your area and if you have ideas about how to move them, call me. I can be reached at 995 this weekend.
These incidents show a lack of distinction between union work and campaigning. The Rules protect the right of members to engage in campaigning as personal activity distinct from the performance of their jobs, whether those jobs are with an employer or the union. As the Election Officer stated in Phelan, P-711-LU550-NYC (April 23, 1996), aff’d, 96 - Elec. App. - 184 (KC) (May 6, 1996),
The Rules protect campaigning as a personal right of IBT members and require that it be exercised that way. The work of [a Union body] must be distinct from campaigning by its members, whether they agree with each other or not. This distinction between work responsibilities and campaigning is . . . fundamental to the successful operation of the Rules . . . .
With respect to the message that Ms. Parker left on Mr. Ramshaw’s voice mail, the Election Officer finds that Ms. Parker’s tone and the content of her message conveyed to Mr. Ramshaw that Mr. Stevenson was directing him to campaign for Mr. Carey in his free time. There was no reason for Ms. Parker to mention Mr. Stevenson in her message to Mr. Ramshaw except for the coercive impact of telling a subordinate that his supervisor wanted him to campaign for Mr. Carey.
When interviewed by the Election Officer’s investigator, Mr. Stevenson made a general denial of ever encouraging any organizer to contribute to the Carey campaign, to support the campaign or to conduct any campaigning on work time. He further states, “I don’t know of any of my organizers who were asked to limit their work days so they would have more time to campaign,” although in a subsequent interview he acknowledged Mr. Kreuzer’s complaint about the call that he received from Ms. Parker.
The Election Officer did not find Mr. Stevenson to be a credible witness on this point. In view of Ms. Parker’s clear statement that she had spoken to Mr. Stevenson, the Election Officer finds that Ms. Parker was acting as Mr. Stevenson’s agent when she made her call to Mr. Ramshaw. While the Rules would protect non-coercive dialogue between supervisors and subordinates on matters of union politics, the Election Officer finds that this conversation was coercive as a directive from a supervisor to a subordinate. Therefore, the Election Officer finds that Mr. Stevenson violated the Rules by interfering, through the agency of Ms. Parker, with Mr. Ramshaw’s right, under Article VIII, Section 11(a) of the Rules, to campaign or not as he chooses.
With respect to Mr. Kreuzer’s allegation that Ms. Parker told him to limit his work time to eight hours in order to facilitate campaigning as a “priority,” Ms. Parker denies “encourag[ing] or suggest[ing] to anyone that they stick more closely to an eight hour day so they’d have more time to campaign.” The Election Officer generally finds Mr. Kreuzer to be a credible witness and credits his specific recollection of the alleged conversation over Ms. Parker’s general denial, particularly in view of the complaints he made to Mr. Stevenson and then to Mr. Skelton, which they acknowledge. The Election Officer does not find, however, that Mr. Kreuzer suffered coercion because Messrs. Stevenson and Skelton supported his objection. While Mr. Stevenson missed an opportunity to clarify the distinction between work and campaigning when he did not contact Ms. Parker about Mr. Kreuzer’s complaint, the Election Officer does not find that omission to be a violation of the Rules.
Ms. Parker violated the Rules when she gave the telephone number of her desk at the IBT as one place for Mr. Kreuzer to return her campaign call to him. Mr. Askey violated the Rules by giving his voice mail at Local Union 995 as a place to return campaign calls. Article VIII, Section 11(c) of the Rules prohibits the use of “Union . . . facilities . . . to assist in campaigning” unless the union is reimbursed at fair market value for such assistance and all candidates are provided equal access to such assistance and are notified in advance. In Olson, P-172-LU70-CSF (November 1, 1995), the Election Officer found that putting a local union officer’s telephone number in campaign material as a contact number violated the Rules even though it produced only three calls and a “modest deviation” from work on the part of the official: “The use of union telephone equipment to assist in campaigning during work time, even when such activity is not consequential in terms of time, however, violates the Rules.” See Miller, P-504-LU147-MOI (April 23, 1996) (local union hall could not be made available as place to pick up prize won in campaign raffle). Ms. Parker and Mr. Askey violated the Rules when they put out union telephone numbers as contact numbers for campaigning.
Mr. Askey’s statement that “[t]his is official business so we are able to do this” was incorrect. When interviewed by the Election Officer’s investigator, Mr. Askey stated that he considered the pledge forms to have “nothing to do with the presidential election. In my opinion, this is union business to protect the integrity of the constitution.” Despite Mr. Askey’s opinion, the delegate pledge forms and member petitions that he was calling about were clearly identified on their faces as Carey campaign materials.
Thus, the actual result of Mr. Askey’s message was to communicate that the recipient should campaign on work time. Nonetheless, Mr. Askey is a co-worker. The tone of the message was not coercive, and there is no evidence to show that Mr. Askey made his call as an agent for anyone with supervisory authority. In the absence of evidence of coercion, Mr. Askey’s message was incorrect advice, but not a violation of the Rules.
When Mr. Stevenson instructed Mr. Rogers to “get with” Mr. Eckstein at the Carey campaign in order to receive a fax of campaign petitions, Mr. Stevenson violated Mr. Rogers’ right, under Article VIII, Section 11(a) of the Rules, to campaign or not as he chose. The Rules would have protected a conversation, on non-work time, in which Mr. Stevenson tried to convince Mr. Rogers to do so. The line is crossed, however, when a supervisor purports to instruct a subordinate to engage in campaigning. There is too much potential for abuse in the supervisor/subordinate relationship to tolerate a less strict rule. Subordinates should not have to guess whether an instruction to campaign can be safely ignored.
Accordingly, the protester’s allegations of pressure to campaign for Mr. Carey and to solicit delegate pledges and member petitions are GRANTED with respect to Mr. Stevenson’s pressure (through the agency of Ms. Parker) on Mr. Ramshaw to campaign, Ms. Parker’s use of IBT telephone facilities in campaigning, Mr. Askey’s use of local union voice mail in campaigning, and Mr. Stevenson’s instruction to Mr. Rogers to campaign, and DENIED in all other respects.
IV. Additional Allegations Uncovered in the Election Officer’s Investigation
The Election Officer extended her investigation into other allegations potentially involving the IBT Organizing Department as they arose during the course of identifying and interviewing witnesses.
A.Allegation of Pressure to Contribute to the Carey Campaign
Under subpoena, Mr. Ramshaw testified about two meetings in mid-February 1996, with Gary Stevenson in Cincinnati. Messrs. Ramshaw, Kreuzer and Rogers were working on the campaign to organize Overnite Transportation. Mr. Stevenson was their supervisor on that campaign. At about that time, Mr. Stevenson was promoted to a position in the Organizing Department vacated by Mr. Eckstein, who took leave to work with the Carey Campaign.
Mr. Ramshaw states that on or about February 12, he met with Messrs. Stevenson and Kreuzer at a Bob Evans restaurant. Discussion was generally about the IBT election campaign. At one point, Mr. Ramshaw states,
Gary said it was expected that everyone would give some money. I asked how much. He said $1,000. He said that’s how Bob [Muehlenkamp] would find out who was on board and who wasn’t--that’s how they would weed people out.
Mr. Ramshaw further states that he, Mr. Stevenson and Mr. Kreuzer had lunch the next day at a Roadhouse restaurant, with Mr. Rogers also present. According to Mr. Ramshaw’s testimony,
Gary Stevenson said that they were expecting some money and if we didn’t give money that would determine who was for them and who was against them. He said that they would weed people out--if they didn’t give money, they weren’t on board and they wouldn’t be around. He said that’s what Bob was going to do.
Under subpoena, Mr. Rogers also testified about the Roadhouse meeting. He corroborated Mr. Ramshaw’s testimony as to the time, place and participants. With respect to Mr. Stevenson’s comments, Mr. Rogers states, “Gary said we’re expecting more contributions and as the contributions come in, we’ll be able to weed out the Hoffa people. He said Bob Muehlenkamp watches this very closely.”
When interviewed about these statements, Mr. Stevenson stated that he remembered at least one conversation with Messrs. Ramshaw, Kreuzer and Rogers about the Carey campaign and that he said that it was “a life or death campaign because Hoffa has attacked the Overnite campaign.” Thus, Mr. Stevenson states that they had self-interest in supporting Mr. Carey--to preserve their jobs. Mr. Stevenson denied saying that campaign contributions would be used to distinguish between supporters and non-supporters or that Mr. Muehlenkamp would be watching.
The Election Officer credits the testimonies of Messrs. Ramshaw and Rogers. She finds that Mr. Stevenson threatened serious retaliation against these two employees under his supervision if they did not contribute financially to the Carey campaign. Those threats violated Article VIII, Section 11(f) of the Rules.
Under subpoena, Mr. Rogers testified about another incident involving Mr. Stevenson during the Overnite campaign. Mr. Rogers states that on February 23, 1996, while he was standing with Messrs. Kreuzer and Ramshaw at an Overnite property in or around Cincinnati, Mr. Stevenson approached and asked if they had received their raffle tickets. When Mr. Rogers asked what Mr. Stevenson meant, he states that Mr. Stevenson drew him to one side and said that the tickets were for the Carey campaign and that he could get some from Mr. Ramshaw. According to Mr. Rogers, Mr. Stevenson went on to say that “this would go good for you--it would look good for the higher ups.” When Mr. Rogers asked what Mr. Stevenson was talking about, he states that Mr. Stevenson said that “it would be in my best interest if I bought some.” Mr. Rogers states that he returned to Messrs. Kreuzer and Ramshaw, described the conversation with Mr. Stevenson and bought four tickets from Mr. Ramshaw. They were $100 apiece.
Under subpoena, Mr. Kreuzer testified about a similar incident occurring sometime in mid- to late February in Cincinnati. He states that he was engaged in a conversation with Messrs. Stevenson, Rogers and Ramshaw when Mr. Stevenson suggested that Mr. Kreuzer buy raffle tickets supporting the Carey campaign. Mr. Kreuzer states that Mr. Stevenson said that it would “be in my behalf” and further that “it was put in a way that it would be in our best interest--we should do it or we’d be gone. I can’t remember word for word but that’s what I took from it.” Mr. Kreuzer bought two tickets.
Mr. Stevenson responds that he had frequent conversations with Messrs. Kreuzer, Rogers and Ramshaw about the Overnite campaign. He states, “The only thing I said to them about the raffle tickets was to mention that I had received 20 tickets that I’m going to try to sell, and I encouraged them to buy some and to try to sell some.” Mr. Stevenson denies saying that anyone was expected to buy tickets.
The Election Officer finds Mr. Rogers to be a credible witness and that his recollection of the conversation with Mr. Stevenson at the Overnite property is clear and detailed. Furthermore, the substance of coercion to buy raffle tickets is corroborated by Mr. Kreuzer’s testimony about a separate incident, which the Election Officer finds to be credible although less detailed. The Election Officer does not credit Mr. Stevenson’s denial.
The Election Officer finds that Mr. Stevenson directly linked the job performances of Messrs. Rogers and Kreuzer with their willingness to contribute financially to the Carey campaign. Such linking violated Article VIII, Section 11(a) of the Rules by interfering with the personal rights of Messrs. Rogers and Kreuzer to support or oppose any candidate as they pleased, and it violated Article VIII, Section 11(f) of the Rules as a threat of retaliation if they did not support Mr. Carey’s re-election.
Accordingly, the protest is GRANTED with respect to the threats of retaliation made by Messrs. Stevenson to Messrs. Ramshaw and Rogers and to Mr. Stevenson’s coercion of contributions from Messrs. Rogers and Kreuzer.
B. Allegation of Retaliation for Alleged Political Activity
Under subpoena, Mr. Kreuzer testified about an incident involving Mr. Muehlenkamp on May 9, 1996. At a meeting at the Meany Center, Mr. Muehlenkamp announced that the Organizing Department was going to hire additional project organizers. Afterward, Mr. Kreuzer states that he asked Mr. Muehlenkamp about the possibility of gaining full-time employment. According to Mr. Kreuzer, Mr. Muehlenkamp then indicated that he had always supported Mr. Kreuzer and said that he had not previously known of Mr. Kreuzer’s interest in full-time employment. Mr. Kreuzer states that Mr. Muehlenkamp then said that he would look into it “but some people think you’re a Hoffa person.” Mr. Kreuzer testified that he replied, “I don’t do politics,”[14] to which Mr. Muehlenkamp said, “Well, you are doing your job.”
Mr. Muehlenkamp responds that he indicated to Mr. Kreuzer that they could evaluate his request after the Convention. He states that he does not recall saying anything to
Mr. Kreuzer about being a Hoffa person.
The Election Officer credits Mr. Kreuzer and finds that his recollection of the conversation is clear. Therefore, the Election Officer finds that Mr. Muehlenkamp did raise the alleged political affiliation on Mr. Kreuzer’s part as a factor in evaluating Mr. Kreuzer for a full-time position. While Mr. Muehlenkamp phrased his statement in terms of others being concerned about Mr. Kreuzer’s alleged politics, Mr. Muehlenkamp characterizes himself as the “ultimate supervisor” in the Organizing Department with full power over hiring and firing. On its face, the remark linked an employee’s job advancement with his alleged electoral preference.
As the Election Officer recognized in Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995), union officials may base employment decisions on “personality conflicts or political rivalry,” but such decisions may not be influenced by a member’s alleged “engaging in election-related conduct protected by the Rules.” Mr. Muehlenkamp had no legitimate reason to link Mr. Kreuzer’s chance at getting full-time employment with Mr. Kreuzer’s electoral preference. Thus, Mr. Muehlenkamp’s statement to Mr. Kreuzer was retaliation for alleged protected activity, in violation of Article VIII, Section 11(f) of the Rules.
The protest is GRANTED with respect to Mr. Muehlenkamp’s threat of retaliation to Mr. Kreuzer.
C. Allegation of Use of Union Resources at Joint Council 13
Under subpoena, Mr. Kreuzer testified about an incident that he witnessed on June 27, 1996, at the offices of Joint Council 13. He states that when he arrived at about 11:30 a.m., two other people were in the office he was using: International Representative Ed Kimbro and International Organizer Ron Aboussi. According to Mr. Kreuzer, the desk was spread with fundraising materials and petitions, and he heard Messrs. Kimbro and Aboussi telephoning to make appointments to meet people to give them petitions and leaflets for a fundraiser to be held that weekend. He further states that they asked him to visit some work sites to drop off materials, and he replied that he was doing work. At one point, Mr. Kreuzer saw one of the others leave the room to make copies of campaign material and return with the copies a few minutes later.
Mr. Aboussi responds that he was helping Mr. Kimbro with a problem with the construction trades. When asked whether they had delegate pledges, member petitions or fundraiser flyers in the office, he stated that they might have had such materials in the late afternoon.[15]
Joint Council 13 responds that it maintains an office for organizers to use, which is located outside of its suite. Organizers have keys and use the office at their convenience. Telephones are located in the office, but a copier is not. If an organizer needs photocopies, he or she must enter the joint council’s office, which is by buzzer entry, and request copies from a staff person. Staff have been instructed not to make copies of campaign material. Joint Council 13 does not monitor what organizers do in the separate office and has no knowledge of what Messrs. Kimbro and Aboussi were doing on June 27.
The Election Officer finds that on June 27, Messrs. Kimbro and Aboussi conducted campaign activity in the organizing office maintained by Joint Council 13. Mr. Kreuzer’s recollection of the event was clear and credible. Mr. Aboussi admits that he and Mr. Kimbro may have worked with campaign materials in the afternoon.
Therefore, the Election Officer finds that Messrs. Kimbro and Aboussi violated
Article VIII, Section 11(c) of the Rules, which provides that “Union . . . facilities, equipment . . . etc., may not be used to assist in campaigning . . .” Their campaigning involved the use of Joint Council 13’s organizers’ office and telephones, which are plainly covered by this section. See Veltry, P-927-IBT (October 15, 1991) (recognizing “space for a telephone” as local union resource); Sargent, P-249-LU283-MGN (May 21, 1991) (recognizing “rent and associated costs for office space” as facility, subject to Rules), aff’d, 91 - Elec. App. - 158 (SA) (June 12, 1991); Olson (union telephone as facility). With respect to the alleged making of copies, the Election Officer finds insufficient evidence to determine that campaign material was copied on Joint Council 13’s photocopier.
The Election Officer finds that the campaigning of Messrs. Kimbro and Aboussi also constituted a campaign contribution from the IBT to the Carey campaign, in violation of similar language in Article XII, Section 1(b)(3) of the Rules. Joint Council 13 makes the office in question available to IBT organizers as they need it for legitimate purposes. Due to the location of the office outside of Joint Council 13’s suite, it is practically infeasible for the joint council to monitor what organizers do. When Messrs. Kimbro and Aboussi misused the office for campaigning, they caused an IBT resource to be used for the benefit of the Carey campaign. That constituted a violation by the IBT of Article XII, Section 1(b)(3) of the Rules. Under the terms of Article XII, Section 1(b)(9), that benefit must be disgorged: “Candidates are strictly liable to insure that each contribution received is permitted under the Rules. Prohibited contributions must be returned promptly.”
Accordingly, the protest is GRANTED with respect to the misuse of Joint Council 13’s organizing office by Messrs. Kimbro and Aboussi and the improper campaign contribution of the joint council’s facilities to the Carey campaign that resulted.
IV. Alleged Rating System for Local Unions
Several of the protester’s witnesses allege that the Organizing Department uses a rating system to allocate services of the International to local unions. They allege that local unions are rated according to whether their leaders are pro-Carey or pro-Hoffa. One witness stated that the rating system is one (1) to five (5), and another witness stated that it is one (1) to four (4).
The Election Officer’s investigation indicates that during the second year of the Carey administration, in approximately 1993, there was an effort to develop a rating system for local unions based on their support for a proposed dues referendum. The IBT states that the effort never matured. No evidence was found to corroborate the protester’s allegation of a current rating system.
In Martin, P-010-IBT-PNJ et seq. (decision on remand) (August 17, 1995), aff’d,
95 - Elec. App. - 18 (KC) (October 2, 1995), the Election Officer found that Mr. Carey did not become a candidate for re-election until October 1994. Thus, the campaign-related portions of the Rules have no application to his alleged activities before that time. The abortive rating system in 1993 is outside the scope of the Rules, and the protester’s allegation as applied to it would also be clearly untimely. See Article XIV, Section 2(b) of the Rules (requiring protests to be filed within two days of when the protester knew or reasonably should have known of the alleged violation).
In the absence of other evidence of such a system within the time period covered by the Rules, protested in a timely fashion, this allegation is DENIED.
V. Remedy
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 Election Officer found Rules violations by the director of the IBT Organizing Department and by one of his principal supervisors. Those violations involved specific instances of linking the job security or advancement of subordinates to their support for Mr. Carey’s re-election or to their willingness to contribute to or campaign for Mr. Carey’s re-election. Therefore, the Election Officer will issue appropriate cease and desist orders and, where appropriate, order the disgorgement of any improper benefit that flowed to the Carey campaign.
When department heads make continued employment or the conditions of one’s employment contingent on campaigning for a particular candidate, there is serious potential for interfering with subordinates’ rights to express their political views in pursuit of the “fair, honest, open and informed elections” that are the goal of the Consent Decree. See Article I of the Rules. Accordingly, the Election Officer has determined that all members in the Organizing Department should receive a notice from the Department setting forth their rights and responsibilities with respect to campaigning as protected by the Rules, as well as a clear statement from the Department that job evaluations and assignments will not be influenced in any way by such activity. Such a notice is intended to be broader than the specific violations found on this record. It is justified by the need to ensure that any apprehensions about coercion or intimidation in the Organizing Department are addressed as the IBT election cycle enters the final phase. For this reason, the Election Officer also finds it appropriate to order the IBT to send a Notice from the Election Officer, attached to this decision, to all employees to fully explain and reinforce their right to support the candidate of their choice or to refuse to engage in campaigning without retaliation or threat of retaliation.
The Election Officer also found that non-supervisory IBT employees violated the Rules by using union facilities for campaign purposes. Therefore, the Election Officer will issue appropriate cease and desist orders and, where appropriate, order the disgorgement of any improper benefit that flowed to the Carey campaign.
It is also important, however, to note what this investigation did not disclose. The Election Officer did not find widespread violations of the use of union resources to campaign. Nor does she find that the violations which did occur are sufficient in scope to have an impact on the International election. In order to ensure that the violations found are properly remedied, as well as to avoid any further violations as the election process continues towards its conclusion, the Election Officer orders the following remedies.
A. Cease and Desist Orders
1. IBT Organizing Department Director Robert Muehlenkamp shall cease and desist from threatening to retaliate against any IBT employee because of their actual or alleged support for an International officer candidate.
2. IBT Organizing Department Supervisor Gary Stevenson shall cease and desist from interfering with the right of IBT employees to campaign for any International officer candidate and shall cease and desist from threatening to retaliate against any IBT employee because of their actual or alleged support for an International officer candidate. The Carey campaign shall cease and desist from accepting coerced campaign contributions.
3. IBT employee Joanie Parker shall cease and desist from using union facilities to campaign for any International officer candidate.
4. IBT employee Scott Askey shall cease and desist from using union facilities to campaign for any International officer candidate.
5. IBT employee Ed Kimbro shall cease and desist from using union facilities to campaign for any International officer candidate.
6. IBT employee Ron Aboussi shall cease and desist from using union facilities to campaign for any International officer candidate.
B. Orders to Disgorge Benefits
1. The Carey campaign shall pay $400 to IBT employee Dean Rogers in order to disgorge the benefit of his coerced purchase of four raffle tickets at $100 per ticket.
2. The Carey campaign shall pay $200 to IBT employee Robert Kreuzer in order to disgorge the benefit of his coerced purchase of two raffle tickets at $100 per ticket.
3. The Carey campaign shall pay $75 to Joint Council 13 in order to disgorge the benefit of the use of office space and telephones by Messrs. Kimbro and Aboussi for a period of five hours on June 27, 1996.
4. The Carey campaign shall comply with the foregoing disgorgement orders within five (5) days of the date of this decision, and shall within three (3) days thereafter furnish an affidavit to the Election Officer demonstrating compliance with those orders.
C. Order to Distribute Notice within the IBT Organizing Department
On or before August 22, 1996, IBT Organizing Department Director
Robert Muehlenkamp shall execute the attached notice and distribute it to all full-time, part-time and project employees in the Department. Within three (3) days of the date on which distribution is completed, Mr. Muehlenkamp shall submit an affidavit to the Election Officer demonstrating compliance with this order.
D. Order to Distribute Election Officer Notice to IBT Employees
On or before August 22, 1996, the IBT shall distribute a copy of the attached Election Officer Notice to all full-time, part-time and project employees of the International union. Within three (3) days of the date on which distribution is completed, the IBT shall submit an affidavit to the Election Officer demonstrating compliance with this order.
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:
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, N.W., 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
Barbara C. Deinhardt, New York City Protest Coordinator
James P. Hoffa
August 16, 1996
Page 1
Dear IBT Employee:
During the course of a recent investigation, the Election Officer uncovered evidence that certain IBT employees have engaged in campaign practices that violate the Rules for the 1995-1996 IBT International Union Delegate and Officer Election ("Rules"). Certain of these violations involved IBT supervisors coercing campaign contributions from employees and suggesting a link between an employee’s ability to advance in his job with the International and his support of certain candidates for International office.
The Election Officer did not make a finding that such practices were widespread in the IBT or that any impact on the International officer election has occurred. However, the Election Officer has determined that preventive action is warranted to ensure that all employees understand their right to support International candidates of their choice. Accordingly, the Election Officer reminds IBT employees of their rights under the Rules:
•Every member of the IBT has a personal right to participate in campaign-related activity under the Rules. This right extends to members employed by the International union. Members may decide to support or oppose whomever they choose, to aid or campaign for any candidate, and to make campaign contributions. The Rules also protect a member’s right not to become involved in the International officer election at all.
•Retaliation or the threat of retaliation by the IBT for exercising any right guaranteed by the Rules is prohibited.
If you believe you have been retaliated against or threatened with retaliation based upon election-related activity, you may file a protest with the Election Officer at 400 N. Capitol Street, N.W., Suite 855, Washington, D.C. 20001; Telephone (800) 565-VOTE; Fax (202) 624-3525.
_________________________
Barbara Zack Quindel
Election Officer
James P. Hoffa
August 16, 1996
Page 1
[On IBT Organizing Department Letterhead]
OFFICIAL NOTICE ON RIGHTS AND RESTRICTIONS
ON CAMPAIGN-RELATED ACTIVITY BY IBT ORGANIZERS
To: All IBT Organizing Department full-time, part-time and project organizers
From: Robert Muehlenkamp, Director of Organizing Department
The Election Officer has decided that I violated Article VIII, Section 11(f) of the Rules for the IBT International Union Delegate and Officer Election ("Rules") when I suggested to an Organizing Department employee that his alleged support for James P. Hoffa in the International officer election would be a negative factor in evaluating the employee's chances for job advancement.
The Election Officer has decided that Supervisor Gary Stevenson violated Article VIII, Sections 11(a) and 11(f) of the Rules by misusing his supervisory authority over three Organizing Department employees working on the Overnite campaign to pressure them to campaign for Ron Carey. Mr. Stevenson's actions involved issuing instructions to engage in campaign activity, making threats of adverse job action if employees did not contribute to the Carey campaign and pressuring employees to purchase Carey campaign raffle tickets.
The Election Officer found other instances in which non-supervisory employees in the Organizing Department campaigned in ways that did not respect the line between campaigning and work, and which, in some instances, violated the Rules. Understanding and respecting that line is fundamental to fair, honest, open, and informed International officer elections.
To prevent any misunderstandings and future Rules violations, the Election Officer has decided that this notice should be issued by me, on behalf of the Organizing Department, to all full-time, part-time, and project organizers. This notice sets forth the rights and responsibilities under the Rules that apply to organizers who wish to campaign for any International officer candidate. This notice also sets forth the obligation of the Organizing Department under the Rules to respect such decisions by organizers. It also sets forth my commitment that such decisions will not be considered by the IBT or me in determining job tenure, job assignments, performance evaluations, promotions, or any other job-related matter.
1. The Personal Right of Members to Campaign
Every member of the IBT has a personal right to participate in campaign-related activity under the Rules to support or oppose any candidate, to aid or campaign for any candidate and to make campaign contributions.
This right extends to members employed by the International union. Members may decide to support or oppose whomever they choose. The Rules also protect a member’s right not to get involved in the International officer election at all.
2. Use of Time
Campaigning may not involve the expenditure of IBT funds, including salary and other compensation. Accordingly, officers and employees of the union may not campaign on time that is paid for by the union. However, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is permitted.
The Rules also recognize that as employees engage in normal personal interaction while they work, campaigning should not be excluded from what they may talk about. The Rules protect such activity as campaigning incidental to regular union business. This exception is not an extra right to campaign, but a recognition that election discourse may be part of the personal discourse that otherwise takes place at the workplace.
Organizers should remember that campaigning is a right to be exercised among members. IBT employees should not campaign in such a way as to suggest to third parties, such as employers or non-organized employees, that the IBT endorses or favors any candidate. Thus, IBT employees should not wear campaign buttons, shirts, hats, etc., when representing the IBT in meetings with unrelated third parties.
Organizers also face a special problem due to the long and irregular hours that are often part of the job. Recognizing such conditions, the Rules allow organizers latitude in their own choice of break and off-work times, consistent with whatever time-keeping requirements their employer may have. It is the policy of the Organizing Department that organizers should do their jobs and work appropriate hours. Campaigning is a matter of personal choice to be fit appropriately into an organizer's free time, like any other personal activity.
3. Use of IBT Resources
IBT employees may not use union funds, facilities, equipment, stationery, personnel, etc., to assist in campaigning.
Organizers who are provided with union-owned or leased cars, if otherwise afforded the right to utilize those cars for personal activities, may use the cars for campaign activities, provided no costs, or expenses incurred as a consequence, of such use are paid out of union funds. Organizers wishing to use such cars for campaign purposes should pay for whatever gas they use in doing so. If campaign use would result in other direct or indirect costs, the organizer must pay them. They may not flow through to the IBT, even if the organizer intends to refund them.
Union telephones may not be used for campaigning. Therefore, organizers may not use a union telephone for campaign purposes while on breaks or other non-work time during the work day. Organizers may not use a union phone for campaigning before or after work. Furthermore, it is a violation of the Rules to give out a union telephone number as a place to return a campaign call.
Union fax machines, photocopiers, other office equipment, or office supplies cannot be used for campaign purposes, even if personal use is otherwise permitted. Organizers also may not conduct campaign activity in union office space, even if office equipment and supplies are not used. This prohibition includes office space made available to organizers by local unions or joint councils.
4. Freedom to Conduct Campaign Activity without Interference, Coercion or Retaliation
Since the Rules protect campaign activity as a personal right of members, the exercise of that right cannot be interfered with by labor organizations or employers, including the IBT as an employer.
Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules is prohibited. (Article VIII, Section 11(f) of the Rules).
The IBT and the Organizing Department are strictly prohibited from using the electoral preferences or activities of its employees as factors in any employment-related decision. This prohibition does not preclude supervisors from discussing election-related matters with employees at appropriate places and times if the discussions are voluntary and free from job-related pressure. Election debate is generally protected by the Rules. The Rules are violated whenever the employment relationship is used for pressure, coercion, retaliation or the threat of retaliation.
Thus, no decision by the Organizing Department with respect to hiring, job assignments, promotions, work evaluations and terminations may be influenced by the decision of a member to engage in, or to refuse to engage in, any personal campaign-related activity.
____________________ ______________________________
Date ROBERT MUEHLENKAMP
Director, Organizing Department
Approved by Barbara Zack Quindel, IBT Election Officer.
[1] There is no issue of timeliness with respect to matters uncovered by an investigation of the Election Officer. Timeliness is a prudential requirement under the Rules to ensure diligence by protesters. See Wsol, P-095-IBT-CHI (September 20, 1995); Article XIV, Section 2(b) (requiring 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”). It is not a limit on the remedial authority of the Election Officer, who is empowered by Article XIV, Section 4 of the Rules to order remedies whenever, “as a result of . . . any investigation undertaken . . . with or without a protest,” she determines that such action is appropriate.
[2] DRIVE is an acronym for Democratic Republican Independent Voter Education. It is the political action fund for the IBT.
[3] There is no allegation in this protest, and the Election Officer uncovered no evidence, of any involvement of Mr. Carey in any charge of coercion or intimidation.
[4] Mr. Hoffa’s allegations are summarized from the protest filed on his behalf by counsel on June 13, 1996, and from a supporting letter filed by counsel on June 19.
[5] Members who do so are in individual violation of Article VIII, Section 11(b) of the Rules.
[6] Several persons who spoke with the Election Officer’s investigators asked not to be identified, stating that they feared retaliation. They will only be referred to in this decision as “witness.” The Election Officer will not base or support the finding of a Rules violation on the testimony of such a witness, although such testimony may be used, as here, to illustrate the fact that no supporting testimony could be found. Where the testimony of such a witness was important to a line of investigation, the Election Officer made every effort to elicit usable testimony by other means, such as through a witness willing to be identified, or by subpoena.
[7] The section provides that campaigning “incidental to regular Union business” or on “paid vacation, paid lunch hours or breaks, or similar paid time off” does not constitute a violation.
[8] Mr. Eckstein has since returned to the IBT as an International representative in the Field Services Department.
[9] The witnesses did not suggest that the original solicitation of their pledges was improper.
[10] Note also, in this regard, “Hoffagram” (June 21, 1996) referring to Ron Carey unleashing his “overpaid patronage army of do-nothing International Reps, Organizers, and Vice-Presidents to threaten, intimidate, and coerce union members in an effort to get a majority of delegates to sign his Failure Agenda Pledge Card,” and referring to IBT staffers as “obedient goons” and “paid henchmen.”
[11] Mr. Ramshaw did not testify voluntarily. The Election Officer believed his testimony to be sufficiently important to compel by subpoena.
[12] Mr. Kreuzer did not testify voluntarily. The Election Officer believed his testimony to be sufficiently important to compel by subpoena.
[13] Mr. Rogers did not testify voluntarily. The Election Officer believed his testimony to be sufficiently important to compel by subpoena.
[14] During the course of the investigation, a number of organizers, including
Mr. Kreuzer, stated that they were not political and did not want politics to interfere with their organizing. The Election Officer credited these statements.
[15] The Election Officer made several unsuccessful attempts to contact Mr. Kimbro.