Protest Decisions

              October 28, 1996

VIA UPS OVERNIGHT

Gene Maney

October 28, 1996

Page 1

Gene Maney

32-43 49th Street

Long Island City, NY  11103

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

William McKernan, President

Teamsters Local Union 617

587 Bergen Boulevard

Ridgefield, NJ  07657

APA Truck Leasing

1207 Tonnelle Avenue

North Bergen, NJ  07047

Nathaniel K. Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY  10036

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

Gene Maney

October 28, 1996

Page 1

Re:  Election Office Case No. P-1033-LU617-NYC              [CORRECTED]

Gentlemen:

Gene Maney, a member of Local Union 807, 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”).  He alleges that on September 26, 1996, while he and other members were distributing Carey campaign literature outside an APA Transport Corp. (“APA”) facility in North Bergen, New Jersey, a large number of APA trucks driven by Local Union 617 members exited the facility bearing Hoffa campaign placards, banners and bumper stickers.  During the investigation of this protest, Mr. Maney added an allegation that two Local

Union 617 stewards stood in the parking lot as the trucks were pulling out, in order to intimidate drivers into not taking the literature that Mr. Maney and his companions were distributing.  Mr. Maney lodges his protest against APA, Local Union 617 and the Hoffa campaign.

Gene Maney

October 28, 1996

Page 1

All three charged parties deny any prior knowledge or involvement in the presence of campaign material on the trucks.  APA further responds that after receiving the protest, it inspected all equipment in its terminal.  All campaign material has been removed and APA states that it will continue to monitor the situation. 

Local Union 617 further responds that it has “informed its members on numerous occasions at union meetings and job sites” not to put campaign material on employer property, that it has asked its stewards to check that such activity does not occur and that it will do its best to ensure that this type of violation does not happen again.

The Hoffa campaign further responds that the protest is untimely.  It also outlines the affirmative steps it has taken to discourage the affixing of campaign material to employer property in response to a prior decision of the Election Officer.

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

Mr. Maney states that he and about 15 to 20 other people went to APA’s North Bergen facility on September 26, 1996 at approximately 8:00 a.m. to hand out Carey campaign literature.  He and his group remained for about one hour and he states that approximately

50 vehicles exited the facility during that time.  Mr. Maney further alleges that 25 to 30 percent of the trucks had Hoffa campaign stickers and/or posters attached to them.

Mr. Maney submitted photographs to the Election Officer, which he states were taken during the period in question.  Four trucks are shown with Hoffa campaign material.  The cab (#818) of a tractor-trailer combination is shown with a vertical Hoffa banner attached to the grill and a “Hoffa ‘96” sticker on the front bumper.  The cab (#2055) of a tractor-trailer combination is shown with a “Hoffa & DeSanti” sticker on the front bumper.  The cab (#3184) of a tractor-trailer combination is shown with a “Hoffa ‘96” sticker on the right side of the bumper and a “Hoffa & DeSanti” sticker on the left side.  The photograph also shows the driver flipping down the passenger side sun visor to reveal a “Hoffa ‘96” sticker.  The fourth photograph shows the back of a truck (#1227) with a Hoffa bumper sticker on the rear door.

Mr. Maney also alleges that two stewards came out of the building and stood by the fence, within the parking lot.  He alleges that the stewards did so to observe the drivers and make sure that the drivers did not take the literature that Mr. Maney and his companions were handing out.

1.              Timeliness

The Election Officer will first address the Hoffa campaign’s contention that

Mr. Maney’s protest “is clearly untimely (having been filed more than two working days

after the protester says he observed the alleged violations). . . .”

Gene Maney

October 28, 1996

Page 1

Article XIV, Section 2(b) of the Rules requires protesters to file “within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested.”  Mr. Maney states that he saw the APA trucks bearing campaign material on Thursday, September 26, 1996.  He filed his protest by fax on Monday, September 30.  Friday and Monday are two working days within the day the protested events took place.  The protest is, therefore, timely.

2.              Allegation Concerning Campaign Material on Employer Trucks

“Nothing in . . . the Rules authorizes members to affix campaign material to employer-owned trucks. . . .”  Hoffa, P-992-LU707-NYC (October 7, 1996).  While the Rules protect the ability of members to support candidates of their own choosing, that protection does not extend to affixing campaign stickers and other material to property that belongs to an employer.[1]  As the Election Officer stated 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.”

Affixing campaign material to employer property has other consequences as well.  Putting such material on an employer’s truck has the effect under the Rules of causing the employer to make an improper campaign contribution in violation of Article XII, Section 1(b)(1), even if the affixing of the sticker was against employer policy.[2]  Putting stickers on employer trucks can also create a false impression of employer endorsement, which would be another form of improper campaign contribution.  See Feeley, P-874-LU817-MGN (September 17, 1996); Maney, P-956-IATSE-NYC et seq. (October 2, 1996), aff’d, 96 - Elec. App. - 251 (KC) (October 15, 1996); Knox, P-1006-SFD-MGN (October 14, 1996).

Furthermore, 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, affixing a campaign sticker or sign to an employer truck results in a violation of the Rules on the part of the candidate who the member intends to support.

On the record in this matter, the Election Officer finds that the Hoffa campaign stickers and sign shown on the four APA trucks in the photographs submitted by the protester were affixed in violation of the Rules.

Gene Maney

October 28, 1996

Page 1

With respect to APA, the employer states that it received its copy of the protest from the Election Officer on October 3, 1996 and conducted an inspection of all equipment in its terminal that weekend, October 5 and 6.  It further states that “when the trucks were dispatched on Monday, October 7, 1996, no campaign literature was displayed on any equipment.”  In a letter to the protest coordinator, APA committed to the continuing examination of its equipment “to ensure that no election violations take place.”  It is also willing to send a letter to Local Union 617 reminding the local union of its policy.

The Election Officer requests the issuance of such a letter to the local union.  In view of APA’s prompt action and follow-up, the Election Officer finds that the protest as to it is RESOLVED.

With respect to Local Union 617, the Election Officer finds that its efforts to educate members not to affix campaign material to employer property have not been effective at the APA facility in question.  The local union states that it has asked its stewards to take affirmative steps to check on and discourage such activity, but the Election Officer notes in this matter that two stewards stood out in the parking lot as the APA trucks bearing campaign material were leaving the parking lot.  While the Election Officer does not find sufficient evidence to show local union involvement in the affixing of stickers, further preventive action is warranted.

The protest as to Local Union 617 is DENIED, although the Election Officer will require a posting on local union bulletin boards at the facility in question.

With respect to the Hoffa campaign, liability under the Rules for the receipt of improper employer contributions in the form of stickers affixed to employer trucks is strict.  Therefore, the protest with respect to the Hoffa campaign is GRANTED.

3.              Allegation Concerning Intimidation by Stewards

Mr. Maney also alleges that while he and his companions were distributing Carey campaign materials outside the APA facility, two stewards came out of the building and stood in the parking lot by the fence.  Mr. Maney contends that the stewards did so in order to intimidate drivers into not taking campaign material from Mr. Maney’s group.

Local Union 617 states that the two stewards went outside on their own initiative after hearing that a large group of Carey campaigners were distributing literature.  According to the local union, the stewards wanted to make sure there was no trouble, and it states that they did not say anything to anyone.

Gene Maney

October 28, 1996

Page 1

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); Kilmury, P-1030-LU362-CAN (October 16, 1996); Sheibley,

P-1010-LU653-ENG (October 14, 1996); Halberg, P-259-IBT-SCE (January 2, 1996), aff’d, 95 - Elec. App. - 58 (KC) (January 23, 1996).

In all of the decisions just cited, however, the persons charged with surveillance had done something indicating a potential threat of retaliation.  See, e.g., Kilmury (following campaigners around in car); Sheibley (taking pictures of campaigners).  In this matter, the evidence does not indicate that the stewards in question did more than watch Mr. Maney’s group.  The Election Officer does not find mere watching to be surveillance.  No violation is found as to this conduct.

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.

Accordingly, the Election Officer orders the following:

1.  As offered, APA shall send a letter to Local Union 617 reminding it of APA’s policy concerning affixing campaign material to employer-owned vehicles and equipment.

2.  Within five (5) days of the date of this decision, Local Union 617 shall post the attached notice on all local union bulletin boards at APA’s North Bergen facility.  The notice must remain posted for thirty (30) days.  Within three (3) days of the completion of this posting, the local union 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

Gene Maney

October 28, 1996

Page 1

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile

(202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:               Kenneth Conboy, Election Appeals Master

Barbara C. Deinhardt, New York City Protest Coordinator

NOTICE TO LOCAL UNION 617 MEMBERS

              RE:  IMPROPER USE OF EMPLOYER PROPERTY

The Election Officer found that APA trucks from this facility, driven by Local Union 617 members, have had campaign stickers and signs improperly placed on them.

The Election Rules protect campaigning as a personal right of members.

Employer resources or property do not belong to members and cannot be used by them to campaign.

Putting International officer campaign material on employer property, such as trucks, violates the Election Rules. 

You are hereby instructed to stop such activity.

                                                                                                                              Date                                                                                                  William McKernan, President

Teamsters Local Union 617

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