Protest Decisions

              October 14, 1996

VIA UPS OVERNIGHT

Thomas Sheibley

October 14, 1996

Page 1

Thomas Sheibley

P.O. Box 206

West Bridgewater, MA  02379

Glenn Kulbako

Teamsters Local Union 504

650 Beacon Street

Boston, MA  02215

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

Thomas Sheibley

October 14, 1996

Page 1

Re: Election Office Case No. P-1010-LU653-ENG

Gentlemen:

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

Thomas Sheibley, a member of Local Union 653, and Glenn Kulbako, a member of Local Union 504.  The protesters allege that representatives of the campaign supporting James P. Hoffa, a candidate for general president, violated the Rules by harassing and intimidating them as they attempted to distribute campaign literature supporting General President Ron Carey outside a hall where a Hoffa campaign rally was taking place.  

The Hoffa campaign responds that it had no knowledge of the incidents described in the protest and does not authorize or condone such behavior on the part of its supporters. 

Mr. Hoffa also states that the protest itself describes Hoffa campaign staff members as advising alleged harassers that Messrs. Sheibley and Kulbako had a right to campaign outside the rally and should not be harassed.

Adjunct Regional Coordinator Shailah T. Stewart investigated this protest.

Thomas Sheibley

October 14, 1996

Page 1

The protesters provided the following version of events.  On September 21, 1996 at around 1:40 p.m., Mr. Sheibley, Mr. Kulbako and Jim Jacobs, a member of Local Union 251, arrived at a hall in Boston owned by Local Union 103 of the International Brotherhood of Electrical Workers (“IBEW”) where a rally for Mr. Hoffa was scheduled to take place at

2:00 p.m.  Messrs. Sheibley, Kulbako and Jacobs intended to distribute Carey campaign leaflets to persons attending the rally.  To this end, Mr. Sheibley stationed himself near the entrance to the building’s main parking lot, while Messrs. Kulbako and Jacobs stood at the opening in the fence surrounding the property through which persons arriving by foot would pass to reach the walkway leading to the hall.   All three men were wearing Carey t-shirts and commenced leafleting almost immediately.

The Election Officer’s investigation showed that a distance of about 30 yards separated Mr. Sheibley from Messrs. Kulbako and Jacobs.  The incidents involving Mr. Kulbako and Mr. Jacobs shall be addressed first.

Shortly after Messrs. Kulbako and Jacobs began leafleting, they were approached by an individual who asked what they were doing at a rally for Mr. Hoffa.  When the protester and Mr. Jacobs explained their purpose, the gentleman said it was unfair and they should leave.  Mr. Kulbako responded that Carey supporters had a right to leaflet at the rally and the gentleman went back to the hall.

Another individual soon approached Mr. Kulbako and Mr. Jacobs in an allegedly “forceful and threatening” manner.[1]  This individual screamed obscenities at the Carey supporters and demanded that they leave the premises.  He insisted that Mr. Kulbako reveal where he worked, which Mr. Kulbako refused to do.  Mr. Kulbako states that at some point during the exchange, the man stood directly in front of him, approximately two to three feet away.  Mr. Kulbako found this to be threatening. 

The interchange between Mr. Kulbako, Mr. Jacobs and the unnamed individual came to a halt when a Hoffa campaign staff person took unnamed individual aside and spoke with him.[2]  Mr. Kulbako heard the individual claim, “I am being peaceful,” to the staff person.

Shortly after this incident occurred, Mr. Kulbako and Mr. Jacobs were surrounded by what they describe as a “loose circle” of six to eight Hoffa supporters.  Mr. Kulbako stated he felt trapped and found this action to be intimidating.  However, he also states that he moved through the circle to continue his leafleting and the group disbanded without incident. 

Thomas Sheibley

October 14, 1996

Page 1

The protesters state that they were constantly heckled by Hoffa supporters during the approximately 35 minutes in which they leafleted.  At some point, a Hoffa staff person stood right next to Mr. Kulbako and Mr. Jacobs and told the hecklers that the protesters had a right to be there.  However, the staff person also made negative comments about the leaflets being distributed by the protesters and advised passersby to not read the material or to hand the leaflets over to him.[3]  The staff person remained with Mr. Kulbako and Mr. Jacobs for about 20 minutes, standing either right next to them or just inside the gate.

At approximately 2:00 p.m., an individual wearing a red Hoffa campaign t-shirt approached Messrs. Kulbako and Jacobs and took a photograph of them.  At that point, another person shouted to “get them on videotape.”  Messrs. Kulbako and Jacobs then observed a teenager with a video camera apparently shooting footage of the Carey supporters.  The Hoffa supporter who had taken the photograph then stated to Messrs. Jacobs and Kulbako, “this way, we know who you are.”  This same person told Messrs. Jacobs and Kulbako that he would see them at the Hynes Convention Center (the “Hynes”) in Boston.  When

Mr. Kulbako asked another Hoffa supporter what this remark meant, the person replied, “You’ll find out when you get there.”

Mr. Sheibley distributed campaign leaflets from the entrance to the parking lot.  He states that from conversing with several Hoffa supporters, he understood that they were members of Local Union 82.  Mr. Sheibley told these individuals that he belonged to Local Union 653 in Brockton.[4]

Mr. Sheibley apparently leafleted without incident until, like Messrs. Kulbako and  Jacobs, he was photographed by an unidentified Hoffa supporter.  According to Mr. Sheibley, the photographer remarked to him that “if you ever come speculating for work at the Hynes, there will not be work.”  Mr. Sheibley, who has never worked at the Hynes, believes that

this individual, and the other members of Local Union 82 with whom he spoke, assumed he would at some point seek work at the Hynes due to his membership in Local Union 653. 

Mr. Sheibley did not know the meaning of the term “speculate for work,” nor was he familiar with the hiring process at the convention center, as he performs no work there.

Article VIII, Section 11(f) of the Rules provides as follows:

Thomas Sheibley

October 14, 1996

Page 1

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.

This section is violated when members engage in physically or verbally aggressive behavior that threatens actual harm.  Passo, P-469-LU705-CHI et seq. (February 29, 1996) (finding intent to provoke physical confrontation violates Rules), aff’d in relevant part,

96 - Elec. App. - 124 (KC) (March 13, 1996).  The section does not proscribe “the natural discourse that arises as a result of campaign-related activities,” even if heated.  Furst, P-949-LU430-PNJ (October 9, 1996) (“heated discussion” between protester and charged party does not violate Rules).  See Dunn, P-110-LU25-BOS (July 28, 1995), aff’d, 95 - Elec. App. - 8 (KC) (August 21, 1995) (local union president did not violate Rules by following, hovering near and blocking path of campaigning member); Corriea, P-930-LU150-CSF (September 12, 1996) (fact that charged party, much taller than protester, stood over latter’s desk, did not constitute violation, as charged party “was not aggressive or violent, nor did he threaten aggression or violence in any way”).

The behavior of the Hoffa supporters described in this protest did not violate

Article VIII, Section 11(f) of the Rules except for the picture taking and videotaping discussed below.  While Mr. Kulbako states that he felt threatened or intimidated at several points, such as when he was encircled by six or eight Hoffa supporters, there is no allegation that the individuals involved were outwardly aggressive or threatened actual physical violence.  In the “circle” incident, Mr. Kulbako acknowledges that he was able to step outside the circle without interference, and the circle then dissolved.  With respect to the alleged instances of heckling or the shouting of obscenities, such behavior, without more, falls under the protection of the Rules for campaign free speech.  Thus, the Election Officer generally finds that the incidents set forth in the protest were “natural discourse,” not rising to the level of retaliation.  See Furst.

As described above, unidentified Hoffa supporters photographed Messrs. Kulbako, Jacobs and Sheibley as they distributed leaflets outside the IBEW hall.  In addition, the protest alleges that the Carey campaigners were recorded on videotape by an unidentified teenager. 

Article VIII, Section 11(a) of the Rules guarantees members “the right to participate in campaign activities, including the right to . . . support or oppose any candidate [and] to aid or campaign for any candidate.”  This basic right, essential to the goal of a free and fair election, is reinforced in Section 11(f)’s prohibition of retaliation against any IBT member “for exercising any right guaranteed by this or any other Article of the Rules.”

The Election Officer has found on several occasions that photographing members during protected campaigning, or otherwise conducting surveillance of such activities, chills the free exercise of such activities and is “destructive of the fundamental safeguards of . . . free and fair elections outlined in the Consent Decree and the Election Rules.”  Pollack,

Thomas Sheibley

October 14, 1996

Page 1

P-008-LU732-NYC (October 29, 1990), aff’d, 90 - Elec. App. - 8 (November 7, 1990).  “[T]he appearance of surveillance of IBT members engaging in campaign activities violates the right of members to support candidates free from coercion, interference or harassment.”  In Re: Giacumbo et al., 95 - Elec. App. - 45 (KC) (December 18, 1995); Halberg, P-259-

IBT-SCE (January 2, 1996), aff’d, 95 - Elec. App. - 58 (KC) (January 23, 1996). 

In finding retaliatory surveillance on this record, the Election Officer credits the protesters’ testimony that the picture takers openly threatened to use the pictures to interfere with the protesters’ ability to get work at the Hynes Convention Center.  The fact that the protesters do not actually work there made the threat empty, but no less offensive to the Consent Decree and the Rules.  Accordingly, the Election Officer finds that the surveillance of Messrs. Sheibley and Kulbako violated the Rules.

The investigation did not, however, reveal the identity of the persons who conducted the surveillance.  It appears that at the time the surveillance occurred, the Hoffa campaign staff was inside the IBEW hall.  The evidence demonstrates that when present, Mr. Hoffa’s staff took action to discourage conduct in violation of the Rules.  The protesters state their belief that such persons were connected to Local Union 82 due to that local union’s presence at Hynes.  In response, Local Union 82 states that it has no videotape equipment, that it had no knowledge of this incident and that it would never condone such behavior.  The Election Officer finds no evidence of any involvement by Local Union 82.  The local union has offered, however, to make a posting at Hynes informing members that such surveillance activity violates the Rules.

Accordingly, the Election Officer is unable to attribute the surveillance to any specific persons.  For this reason, the protest is DENIED.

Although the protest is denied, the Election Officer finds that surveillance here involved a serious violation of the Rules.  Accordingly, the Election Officer “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 Gregory, P-800-LU135-SCE (July 18, 1991), the Election Officer ordered a local union to post a notice addressing the politically-motivated smashing of windows in a member’s car, although the perpetrator was unknown.  In Willett, P-863-LU331-PNJ (August 16, 1996), the Election Officer ordered the International officer candidates to communicate the Election Officer’s order concerning the use of campaign stickers to deface property to members who campaign for them.  The perpetrators were also unknown in this case.

Here, the evidence indicates that the persons who conducted the improper surveillance of Messrs. Sheibley and Kulbako were connected to the Hynes.  Local Union 82 has offered to post the attached notice on local union bulletin boards at Hynes in an effort to prevent further occurrences.  Local Union 82 shall make the posting within five (5) days of the date of this decision and shall, within three (3) days thereafter, file an affidavit with the Election Officer showing compliance with this remedy.

Thomas Sheibley

October 14, 1996

Page 1

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, 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

Shailah T. Stewart, Adjunct Regional Coordinator

              NOTICE TO IBT MEMBERS

The Election Officer has found that members working at the Hynes Convention Center attempted to interfere with legitimate campaigning by other members by photographing and videotaping their campaigning and threatening to use the pictures to prevent them from getting future work at the Hynes.

Local Union 82 had no knowledge of such picture-taking and does not condone it.

In order to prevent any further such incidents, Local Union 82 is reminding you that all IBT members have the right to participate in campaign activities on behalf of candidates for International office in the IBT, at appropriate times and places, free from any interference, restraint or coercion.

Attempting to interfere with legitimate campaigning by subjecting members to surveillance and the threat of job-related consequences is a serious violation of the Election Rules.

Anyone subject to such conduct should file a protest with the Election Officer at 400 N. Capitol Street, N.W., Suite 855, Washington, D.C. 20001; telephone (800) 565-VOTE or (202) 624-3500; facsimile (202) 624-3525.

______________________                                          ______________________________

Date                                                                                                  John J. Perry, Secretary-Treasurer                                                                                                   Teamsters Local Union 82

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.