Protest Decisions

October 7, 1996

VIA UPS OVERNIGHT

James P. Hoffa

October 7, 1996

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI 48098

Ron Carey, President

Teamsters Local Union 804

34-21 Review Avenue

Long Island City, NY 11101

Nicholas Picarello, President

Teamsters Local Union 707

14 Front Street

Hempstead, NY 11550

Arthur Hackworth

Consolidated Freightways

175 Linfield Drive

Menlo Park, CA 94025

Ron Carey Campaign

c/o Nathaniel Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY 10036

Martin Wald

Schnader, Harrison, Segal & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Bradley Raymond

Finkel, Whitefield, Selik, Raymond

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI 48334

James P. Hoffa

October 7, 1996

Page 1

Re:  Election Office Case Nos.              P-992-LU707-NYC

                     P-1022-LU804-NYC

Gentlemen:

Pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by

James P. Hoffa, a candidate for general president, against Local Union 707, Local Union 804, Consolidated Freightways (“CF”), United Parcel Service (“UPS”), and the Carey campaign.    The protester alleges that members of Local Union 707 and Local Union 804 have affixed Carey campaign material to trucks belonging to CF and UPS in several New York City locations, in violation of the Rules.

James P. Hoffa

October 7, 1996

Page 1

Because these protests involve identical factual and legal issues, they have been consolidated for decision by the Election Officer.

In P-992-LU707-NYC, Mr. Hoffa alleges that on September 18, 1996, he observed a CF truck on 37th Street in New York City to which Carey campaign stickers were affixed.   Mr. Hoffa states that he spoke with the driver of the truck, who identified himself as a member of Local Union 707 and “conceded that the vehicle had Carey stickers on it.”  On the same date, Mr. Hoffa observed a UPS package truck on 37th Street which displayed a Carey campaign sticker. 

In P-1022-LU804-NYC, the protester observed a UPS package truck on September 26, 1996 at the company’s Spring Street terminal, with a Carey campaign sticker attached.  Local Union 804 represents UPS drivers in New York City.   Mr. Hoffa asserts that both Local Union 804 and the Carey campaign are responsible for the improper display of campaign material on the two UPS trucks he observed.

The charged parties respond that they had no knowledge of campaign material being affixed to the trucks specified by Mr. Hoffa.   Furthermore, the local unions and the employers assert that they have long-standing policies prohibiting the placement of such material on company trucks, which they strictly enforce.

The protests were investigated by New York City Protest Coordinator Barbara C. Deinhardt and Regional Coordinator Arthur Wasserman.

During the investigation, Mr. Hoffa provided photographs of the three trucks specified in his protests which show bumper stickers in support of Mr. Carey affixed to the back doors of the vehicles. 

Local Union 804 submitted an affidavit to the Election Officer signed by its secretary-treasurer, Pat Pagnanella, which states that UPS “has for many years maintained an extremely strict policy against any sort of stickers on its vehicles, including campaign literature . . .”  UPS employees, Mr. Pagnanella asserts, are familiar with the company’s stance, as are all Local Union 804 officers and business agents of Local Union 804 who have “over many years and several elections, worked to ensure scrupulous adherence to this policy.”  He states that representatives of both management and the local union have told stewards and employees not to put campaign stickers on UPS trucks and to “immediately remove any stickers they see.”  Mr. Pagnanella concludes:  “I believe that UPS and Local 804 have done everything possible to make sure campaign materials are not affixed to UPS vehicles.”

After the protests were filed, UPS wrote a letter to Local Union 804 reiterating its position.  The letter states:

James P. Hoffa

October 7, 1996

Page 1

As you know, it has long been a practice of United Parcel Service not to allow the posting or affixing on UPS trucks of any materials not directly related to UPS business.  This prohibition certainly encompasses materials related to the 1995-96 election for IBT International Officers.  Pursuant to that practice and to the provisions of the Election Rules, I would ask that you advise your membership and officers that no such campaign materials are to be posted or affixed to any UPS trucks and that they should promptly remove any such material they find.

CF stated that it has a long-standing policy similar to that of UPS and that the bumper sticker in question was immediately removed.

Article VIII, Section 11 of the Rules provides that “All Union members retain the right 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.”  As the Election Officer made clear, however, in Phelan, P-711-LU550-NYC (April 23, 1996), aff’d, 96 - Elec. App. - 184 (KC) (May 6, 1996), “[t]he Rules protect campaigning as a personal right of IBT members and require that it be exercised that way.”  See Hoffa, P-812-IBT-NYC (August 16, 1996).  Therefore the Rules strictly prohibit IBT members from appropriating union or employer property in order to make personal campaign statements.  Nothing in Article VIII or any other article of the Rules authorizes members to affix campaign material to employer-owned trucks as alleged in these protests.  See Feeley,

P-874-LU817-MGN (September 17, 1996).

The placement of Carey campaign material on CSF and UPS trucks constitutes improper contributions by those employers to the Carey campaign, as well as providing the false impression that those employers endorse Mr. Carey, in violation of Article XII,

Section 1(b)(1) of the Rules.[1]  In view of the positions taken by CF and UPS in this case of strictly enforcing their policies, these protests as to the employers are resolved. 

There is no evidence that Local Unions 707 and 804 had knowledge of these violations.

Under Article XII, Section 1(b)(9) of the Rules, International officer candidates “are strictly liable to insure that each contribution received is permitted under the Rules.”  Therefore, the Carey campaign is strictly liable for the improper receipt of contributions from UPS and CF.

James P. Hoffa

October 7, 1996

Page 1

Accordingly, the protests are RESOLVED as to UPS and CF; GRANTED as to the Carey campaign; and DENIED as to Local Unions 707 and 804.

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 several recent matters, the Election Officer has fashioned remedies in response to the affixing of campaign stickers and signs to private property.  Willett, P-863-LU331-PNJ (August 16, 1996); Feeley; Maney,

P-956-IATSE-NYC et seq., (October 2, 1996). 

In Willett, an unknown person or persons put campaign stickers on the newly painted exterior of a local union hall.  The Election Officer ordered all International officer candidates to take reasonable measures to ensure that their supporters do not put campaign material on private property.

In Feeley, the Election Officer addressed a pattern of campaign stickers and signs on employer-owned and employer-supplied trucks operated by members of a particular local union.  The vehicles were generally parked together at work sites, where the visibility and concentration of such violations, as well as the failure of the local union after notice to take effective action, warranted a finding of violation against the local union.  The Election Officer found that the remedy ordered in Willett “was insufficient to deter the continuing violations found on this record,” and that specific remedies needed to be ordered against the local union, including:  that the local union provide the Election Officer with information on work sites through the end of the election cycle; that the local union pay for a mailing of opposing candidates’ campaign literature; that the local union mail a notice to members to discourage the affixing of stickers and to counteract the appearance of local union endorsement; and that the local union mail a notice to officials, business agents, stewards, and job captains instructing them to remove campaign material from employer-owned and employer-supplied trucks when they see it.

In Maney, the Election Officer addressed the appearance of campaign stickers and signs on trucks and a local union float in the New York City Labor Day Parade.  The trucks and float were sponsored by particular local unions, which again indicated local union knowledge or involvement.  The Election Officer, “[i]n order to address the specific violations found on th[at] record, and in order to decrease the incidence of improper use of employer property,” ordered all local unions within Joint Council 16 to distribute a notice to officers, stewards, and business agents instructing them to remove campaign material from employer property when they see it.

The Maney decision issued on October 2, 1996.  The three violations found in the current protests occurred within Joint Council 16’s area, on September 18 and 26.  Therefore, the Election Officer’s remedy ordered in Maney will cover the violations on this record as well.  The Election Officer finds that no further remedy is necessary at this time.

James P. Hoffa

October 7, 1996

Page 1

The protester states that “[a] pattern in the New York area has emerged” and that “[w]e believe this warrants the imposition of significant penalties.”  These protests, however, are not comparable to Feeley or Maney.  Here, the evidence of improper conduct is isolated, and the Election Officer found no local union knowledge or involvement.  Furthermore, as part of the investigation, the Election Officer’s representative checked several UPS truck parking sites and did not find any bumper stickers supporting candidates in the International officer election.  In Feeley, the evidence of bumper stickers and signs at production location sites was widespread and continuing, and therefore the remedy was broad and calculated to immediately reverse a pervasive problem implicating a local union.  In Maney, the Election Officer ordered a remedy that addressed specific violations by local unions but was also preventative in its coverage of all local unions within Joint Council 16.  As noted above, this remedy covering Local Unions 707 and 804 adequately serves to remedy the violations found in this case.

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 C. Deinhardt, New York City Protest Coordinator

Arthur A. Wasserman, Regional Coordinator

Leroy Ellis, Jr., Stand Up for Teamsters Slate