Protest Decisions

              October 16, 1996

VIA UPS OVERNIGHT

Diana Kilmury

October 16, 1996

Page 1

Diana Kilmury, Vice President-At-Large

International Brotherhood of Teamsters

2612 E. 47th Avenue

Vancouver, BC  V5S 1C1

John Doerksen

Teamsters Local Union 362

1200A 58th Avenue, S.E.

Calgary, Alberta  T2H 2C9

Roy A. Finley, Secretary-Treasurer

Teamsters Local Union 362

1200A 58th Avenue, S.E.

Calgary, Alberta  T2H 2C9

Nathaniel K. Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY  10036

Diana Kilmury

October 16, 1996

Page 1

Re:  Election Office Case No. P-1030-LU362-CAN

Gentlepersons:

Diana Kilmury, a member of Local Union 155 and a candidate for reelection as vice president-at-large on the Ron Carey No Corruption-No Dues Increase Slate, 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”) against Local Union 362 and John Doerksen, a Local Union 362 organizer.  Ms. Kilmury states that on September 27, 1996, she and IBT Organizer Danny Slmko engaged in campaigning while on personal days.  Ms. Kilmury alleges that during the course of several campaign stops, she noticed that Mr. Doerksen was following her and that he made his presence known to her at every stop she made.

Mr. Doerksen originally replied that he had not followed Ms. Kilmury and Mr. Slmko, but had simply bumped into them a couple of times when they were campaigning.  On his second interview with the Regional Coordinator, Mr. Doerksen admitted that he had followed Ms. Kilmury and Mr. Slmko on their campaign stops, but stated that he was not under instructions to do so from anybody.  Mr. Doerksen states that he did not feel he had “sufficient particulars” to reply to the protest and pointed out that the protest did not mention any section of the Rules he had allegedly violated.

Regional Coordinator Gwen K. Randall investigated this protest.

Diana Kilmury

October 16, 1996

Page 1

The investigation revealed that on September 27, 1996, Ms. Kilmury and Mr. Slmko campaigned in Calgary, Alberta.  Ms. Kilmury states that they campaigned in her motor home, which is easily recognizable as a campaign vehicle.  They began campaigning at UPS in Calgary around 7:30 a.m., where they were met by Ron Finley, secretary-treasurer of Local Union 362, and another officer of that local union.  While at the UPS parking lot,

Ms. Kilmury and Mr. Slmko distributed leaflets and talked to members for about one hour.

When Ms. Kilmury and Mr. Slmko finished campaigning at UPS, they drove to the end of the street in order to turn the motor home around.  Mr. Slmko noticed Mr. Doerksen sitting in a car with the motor running.  Mr. Slmko told Ms. Kilmury that he believed Mr. Doerksen would follow them.  When they left the UPS facility, Mr. Doerksen did so.  At Mr. Slmko’s suggestion, Ms. Kilmury then drove into another parking lot and stopped her vehicle to see what Mr. Doerksen would do.  Mr. Doerksen passed the motor home, went into another parking lot, turned his car around and parked his car facing them.  At this point, Ms. Kilmury started up the motor home and drove to the Port of Call Hotel, arriving around 9:15 a.m. 

Mr. Doerksen followed the two campaigners to the hotel and parked his car in the parking lot outside the hotel.  Ms. Kilmury and Mr. Slmko campaigned in the hotel for about an hour.  When they left the hotel, Mr. Doerksen was still in his car.

Ms. Kilmury and Mr. Slmko then drove to Dairy World and campaigned there for approximately one hour.  While parked in the parking lot, Mr. Doerksen called Ed Bodnaryk, secretary-treasurer of Local Union 987, to tell him that Ms. Kilmury and Mr. Slmko were campaigning at Dairy World.  Mr. Bodnaryk and other local union officials went to the site.  Ms. Kilmury told Mr. Bodnaryk that Mr. Doerksen had been following them and informed him that she would be filing a protest.

Ms. Kilmury then drove to Cara, another Teamster work site.  Mr. Doerksen followed her there and parked his car in the parking lot while she went into the building.  When

Ms. Kilmury left Cara, Mr. Doerksen was no longer there.  The Election Officer finds that Mr. Doerksen spent three hours following Ms. Kilmury and Mr. Slmko.[1]

The Regional Coordinator spoke with Mr. Doerksen on two separate occasions.  The first time, Mr. Doerksen denied having followed Ms. Kilmury and Mr. Slmko and stated that he had gone to UPS to speak to Mr. Slmko about organizing matters, and that he merely happened to be at Dairy World at the same time as Ms. Kilmury and Mr. Slmko.  Mr. Slmko states that Mr. Doerksen has never called him to discuss organizing matters in the past, and that he only had casual conversation with Mr. Doerksen while at the UPS facility. 

Mr. Doerksen admits that he only had a casual conversation with Mr. Slmko. 

Diana Kilmury

October 16, 1996

Page 1

The second time the Regional Coordinator spoke with Mr. Doerksen, he admitted that he had followed Ms. Kilmury and Mr. Slmko on their campaign stops, but stated that he did not think it was against the Rules.  Furthermore, Mr. Doerksen admitted that he was using his union car and was on union time, but that he had made work-related telephone calls from his car while waiting for Ms. Kilmury and Mr. Slmko in the parking lots.  Mr. Doerksen stated that no one had asked him to do this and that he was only curious.

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 conducting surveillance of members during protected campaigning 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, 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).

Mr. Doerksen admitted that he had indeed followed Ms. Kilmury and Mr. Slmko as they campaigned.  The Election Officer finds that Mr. Doerksen engaged in surveillance of Ms. Kilmury and Mr. Slmko, in violation of the Rules.

The Election Officer also notes that Mr. Doerksen admits following Ms. Kilmury and Mr. Slmko on union time and utilizing his local union-owned car.  Article VIII, Section 11(a) of the Rules states that “[a]ll Union members retain the right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.”  However, Section 11(a) adds the proviso that “[n]o candidate or member may campaign during his/her working hours.”  Section 11(c) states, “Union funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in campaigning unless the Union . . .”

The Election Officer finds that Mr. Doerksen’s activity was in direct opposition to the campaigning of Ms. Kilmury and Mr. Slmko and, for that reason, constituted campaigning itself.  Consequently, Mr. Doerksen’s activity violated Article VIII, Section 11(a) of the Rules by taking place on union-paid time and Section 11(c) by using union resources. 

Accordingly, the protest is GRANTED.

Diana Kilmury

October 16, 1996

Page 1

When the Election Officer determines that the Rules have been violated, she “may take whatever remedial action is appropriate.”  Article XIV, Section 4.  In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.

The Election Officer therefore orders the following:

1.  Mr. Doerksen is hereby ordered to cease and desist from engaging in surveillance and interfering with the campaign rights of IBT members. 

2.  Within three (3) days of receipt of this decision, Mr. Doerksen will reimburse Local Union 362 for his salary during the three (3) hours he was engaged in prohibited surveillance of Ms. Kilmury and Mr. Slmko.  In addition, Mr. Doerksen will reimburse the local union $15 for use of his union car in following the protester on her campaign rounds.

3.  Within three (3) days of his reimbursement to the local union, Mr. Doerksen will file an affidavit with the Election Officer explaining his calculation of reimbursement and detailing his 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, 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

Gwen K. Randall, Regional Coordinator