Protest Decisions

              October 28, 1996

VIA FACSIMILE & UPS OVERNIGHT

James Sweeney

October 28, 1996

Page 1

James Sweeney

23 Brentwood Parkway

Brentwood, NY  11717

William Schiffer, Executive VP

Baldwin Transportation

1080 Leggett Avenue

Bronx, NY  10474

Fax (718) 893-3960

James P. Hoffa

2593 Hounds Chase

Troy, MI 48098

Fax (313) 568-4921

Ron Carey Campaign

c/o Nathaniel K. Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY 10036

Fax (212) 695-5436

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

Fax (810) 855-6501

James Sweeney

October 28, 1996

Page 1

Re: Election Office Case No. P-1058-LU807-NYC

Gentlemen:

James Sweeney, a member of Local Union 817, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) alleging that on October 4, 1996, he saw Carey campaign stickers on eight Baldwin Transportation Corp. (“Baldwin”) trucks at the New York Times building in New York City.  He further alleges that a Carey sticker was affixed to the building itself. 

Baldwin responds that the stickers were put on its trucks by Local Union 807 Steward Bill Turis and that they have now been removed.  It states that it was not aware that the presence of stickers on its trucks violated the Rules.  It further states that it will instruct its employees not to put campaign material on its trucks.

James Sweeney

October 28, 1996

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Mr. Turis responds that he never got a copy of the Rules and asks how he was to know that stickers should not be put on employer trucks.

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

Mr. Sweeney alleges that he saw Carey campaign stickers on Baldwin trucks in New York City on October 4, 1996 at approximately 7:30 a.m.  The trucks were in a loading bay of the New York Times building on 45th Street.  In his protest, he states that stickers were on eight Baldwin trucks.  He also states that one sticker was affixed to the building itself.

Mr. Sweeney submitted photographs to the Election Officer which he states were taken at the time.  Two photographs are close-ups of the sides of truck cabs, showing a small Carey sticker on each.  One photograph is of the back of a truck cab and shows a Carey sign taped into the rear window.  Three photographs are close-ups of the backs of flat-bed trailers, showing a Carey sticker on each bumper.  One photograph shows a Carey sticker on the side of a flat-bed trailer.  One photograph shows a Carey sticker on the front bumper of a cab.  The last photograph shows a Carey sticker affixed to the building on the side of the loading bay. 

It is not possible to tell from the photographs whether different views of cabs and trailers are of the same or different pieces of equipment.  It is also not possible to tell whether cabs and trailers are from the same or different combinations.  While the number of trucks involved cannot be verified from the photographs, there is ample evidence that a significant number of Carey campaign stickers were affixed to a number of Baldwin trucks and to the New York Times building.  Baldwin admits the presence of stickers and Mr. Turis did not deny affixing the stickers.

“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,

James Sweeney

October 28, 1996

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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 Carey campaign stickers and sign shown on the Baldwin trucks in the photographs submitted by the protester were affixed in violation of the Rules.  The sticker shown on the New York Times building was also affixed in violation of the Rules.

With respect to Baldwin, the employer states that it did not know that allowing campaign stickers on its trucks was a Rules violation.  When contacted by the Protest Coordinator, Baldwin stated that the stickers had been removed.  Subsequently, however, Regional Coordinator Arthur A. Wasserman visited the facility and observed Carey campaign stickers on two Baldwin trucks, as well as a Carey campaign poster taped on the inside of the loading bay.  Thus, the Election Officer finds that Baldwin’s efforts thus far have not been adequate.  Therefore, the Election Officer will require Baldwin to issue a notice to all drivers instructing them not to affix campaign material to its trucks or to employer buildings.

With respect to Mr. Turis and Local Union 807, the Election Officer notes that copies of the Rules were distributed to all IBT local unions and joint councils in December 1995.  She expects all local unions to take appropriate efforts to train their stewards and other officials in what the Rules protect and proscribe.  The Election Officer does not accept ignorance by local union officials of such important obligations as an excuse for a Rules violation.

Furthermore, several days after Mr. Turis was notified that the presence of stickers on employer trucks was prohibited, the Regional Coordinator discovered that stickers still appeared on two trucks and a campaign poster had been put up in the loading bay.  Thus, the Election Officer finds that the violations on the part of Mr. Turis and Local Union 807 were more serious than mere ignorance.  They continued after notice that the activity should stop.

James Sweeney

October 28, 1996

Page 1

With respect to the Carey campaign, liability under the Rules for the receipt of improper employer contributions in the form of stickers affixed to employer trucks is strict.  In Willett, P-863-LU331-PNJ (August 16, 1996), the Election Officer made clear that International officer candidates and slates have an obligation to take reasonable steps to ensure that their campaign materials are not affixed improperly to private property, and she ordered that such steps be taken.  In Feeley, P-874-LU817-MGN (September 17, 1996), the Election Officer addressed a situation in which a large number of campaign stickers and signs appeared on employer equipment at several work sites of a particular local union.  In addition to ordering a remedy against the local union, the Election Officer found responsibility on the part of the campaign that the stickers intended to support. 

While this record does not show as many stickers or work sites as were involved in Feeley, the Carey campaign nevertheless bore responsibility to act when it received service of this protest on October 8, 1996.  It was not until October 25, however, that a representative of the campaign informed the Protest Coordinator that he had asked Local Union 807 to inform its members not to put campaign stickers and other material on employer trucks.  In the meantime, more stickers were put on Baldwin trucks and a Carey campaign poster was put up in the loading bay at the facility.  Prompt action by the Carey campaign, or by Local

Union 807 as noted above, may have prevented those violations.

Accordingly, the protest is GRANTED.

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 finds that the substantial and repeated appearance of Carey campaign material on equipment and the building at a site where Baldwin employees work warrants both corrective and remedial relief.  Certain relief is designed to immediately stop the unlawful conduct.  In order to fully remedy this violation, since the violations here benefited Mr. Carey’s candidacy for general president without providing a similar campaign opportunity to Mr. Hoffa, the Election Officer will provide Mr. Hoffa with opportunity to reach these members.

The Election Officer orders the following:

1.  Within five (5) days of the date of this decision, Baldwin shall distribute the attached “Notice to Drivers” to all of its drivers.  Within three (3) days of the date on which this distribution is complete, Baldwin shall file an affidavit with the Election Officer demonstrating its compliance with this order.

2.  Within three (3) days of the date of this decision, Mr. Turis and Local Union 807 Trustee Johnnie Brown shall sign the attached “Notice to Local Union 807 Members,” and

James Sweeney

October 28, 1996

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Local Union 807 shall post it on all local union bulletin boards at the New York Times’ building on 45th Street in New York City.  The notice must remain posted for thirty (30) days. 

3.  Local Union 807 shall afford an opportunity to the Hoffa campaign to send a mailing to Local Union 807 members employed by Baldwin.  The Hoffa campaign may submit one 8½11-inch sheet of campaign material, printed on one side, to Local Union 807 within three (3) days of the date of this decision.  If the Hoffa campaign provides this material, Local Union 807 shall duplicate it and mail it within two (2) days of receipt of the material from the Hoffa campaign, without any other enclosure or reference to it, to Local Union 807 members employed by Baldwin.  The costs of the mailing shall be borne by the Carey campaign.

4.  Within seven (7) days of this decision, the local union shall submit an affidavit to the Election Officer demonstrating compliance with paragraphs 2 and 3 of this order.  This affidavit shall include a copy of the invoice sent to the Carey campaign.  The Carey campaign will immediately forward to Local Union 807 the amount of the invoice. 

5.  The Carey campaign shall cease and desist from accepting campaign contributions resulting from the actions of Local Union 807 members in affixing pro-Carey material to employer trucks and buildings.  The Carey campaign is further ordered to take all steps necessary to ensure compliance with this cease and desist order including, but not limited to, ensuring that its supporters at the New York Times facility do not affix campaign material to trucks or put up campaign signs or posters and immediately removing any such material posted in violation of this order.  Within two (2) days of paying the invoice from Local Union 807, the Carey campaign will file an affidavit with the Election Officer detailing its compliance with this order, attaching a copy of the check confirming payment to Local Union 807 for the mailing of the Hoffa campaign material.

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

James Sweeney

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

Arthur A. Wasserman, Regional Coordinator

NOTICE TO DRIVERS

              RE:  IMPROPER USE OF EMPLOYER PROPERTY

The IBT Election Officer found that Baldwin trucks and the New York Times building have had campaign stickers and signs relating to the IBT’s International officer election improperly placed on them.

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

You are hereby instructed to immediately stop such activity.

Date                                                                                                  William Schiffer, Executive VP

Baldwin Transportation Corp.

Approved by Barbara Zack Quindel, IBT Election Officer.

NOTICE TO LOCAL UNION 807 MEMBERS

              RE:  IMPROPER USE OF EMPLOYER PROPERTY

The Election Officer found that Baldwin trucks from this facility have had campaign stickers and signs improperly placed on them.   The New York Times building, where members of the local union work, also had campaign materials improperly placed on it.

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 immediately stop such activity.

Date                                                                                                  Johnnie Brown, Trustee

Teamsters Local Union 807

Bill Turis, Steward

Teamsters Local Union 807

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.