Protest Decisions

              November 18, 1996

VIA UPS OVERNIGHT

Christopher Welsh

November 18, 1996

Page 1

Christopher Welsh

1322 Woodingham Drive

Rockledge, FL  32955

Danny Peterson, President

Teamsters Local Union 385

126 N. Kirkman Road

Orlando, FL  32811

James Hoffa Campaign

c/o Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

Christopher Welsh

November 18, 1996

Page 1

Re:  Election Office Case No. P-1147-LU385-SEC

Gentlemen:

A pre-election protest was filed by Christopher Welsh, a member of Local Union 385, pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”), against Local Union 385 and Danny Peterson, president of Local Union 385.  Mr. Welsh alleges three separate violations of the Rules.  First,

he alleges that Mr. Peterson and Local Union 385 have discriminated in favor of the campaign of Ron Carey by allowing copies of the Convoy Dispatch and other campaign literature supporting Mr. Carey to be distributed or posted at the local union hall while barring the distribution or posting of literature supporting James P. Hoffa.  Second, he alleges that Local Union 385 has prohibited the distribution of campaign literature in the parking lot adjacent to the hall before and after general membership meetings.  Third, Mr. Welsh alleges that several vehicles leased by Local Union 385 display campaign materials supporting Mr. Carey.

Christopher Welsh

November 18, 1996

Page 1

Mr. Peterson denies that he allows campaign literature for either of the two candidates for general president in the local union hall, but admits to placing his own copies of the Convoy Dispatch on the literature table in the entrance area for at least the last two years.  He admits that Local Union 385 prohibits campaigning in the adjacent parking lot as a result of the local union’s decision in 1991 to adopt a neutral position with respect to campaigning.  Mr. Peterson also admits that several union-leased cars display Carey bumper stickers, but adds that staff are permitted to use the vehicles for personal business.

This protest was investigated by Adjunct Regional Coordinator Maureen Geraghty.

The facts underlying this protest, for the most part, are not disputed.  On October 22, 1996, during a mail ballot count for local union officers, Mr. Peterson discovered some Hoffa campaign literature lying on a chair in the meeting hall.  Mr. Peterson asked Mr. Welsh, a Hoffa supporter observing the ballot count, to remove the literature from the premises.  Mr. Welsh complied.  Mr. Peterson then told Mr. Welsh and a group of other Hoffa supporters that they were not permitted to distribute campaign literature in the parking lot adjacent to the local union hall.  They complied.

That same day, Mr. Welsh photographed three vehicles leased by Local Union 385 in the adjacent parking lot, two of which displayed sun visors with Carey campaign slogans and one of which displayed a Carey bumper sticker.  Mr. Welsh also photographed a small table in the main entrance area of the local union hall on which was placed a copy of the Convoy Dispatch.[1]  The investigation revealed that each month Mr. Peterson places several copies of the Convoy Dispatch on a small table in the main entrance area of the local union hall for members to peruse.  These copies are paid for by Mr. Peterson personally.  Since the filing of this protest, he has removed the copies of the Convoy Dispatch from the literature table.

1.              Allegations as to Distribution of Campaign Literature at the Local Union Hall

There is a dispute between the parties as to the even-handedness with which Mr. Peterson has implemented the local union’s policy prohibiting campaign material in the local union hall.  The protester does not dispute that, with the exception of the Convoy Dispatch, Mr. Peterson has consistently removed campaign literature from the local union hall.  He alleges, however, that Mr. Peterson does not have Carey campaign material removed until Hoffa supporters complain of its presence.  The investigator interviewed four witnesses, two of whom, both Hoffa supporters, said that they had seen Carey campaign material posted on local union hall bulletin boards.  A third witness, a former secretary-treasurer of Local Union 385 and a Hoffa supporter, denied ever seeing Carey campaign literature in the local union hall.  The fourth interviewed witness, the local union’s hiring hall coordinator, corroborated Mr. Peterson’s claim that he strictly prohibits the posting or distribution of campaign literature of either campaign and has consistently removed it upon its discovery.

With respect to Mr. Peterson’s distribution of the Convoy Dispatch, Article VIII,

Section 5(a)(4) of the Rules reads:

Christopher Welsh

November 18, 1996

Page 1

A Local Union shall not discriminate or permit discrimination in favor or against any candidate in conjunction with its meetings or otherwise.  This requirement shall apply not only to formal presentations by or on behalf of candidates but also to informal campaign activities, such as . . . literature distribution tables, etc.

The Election Officer has found the Convoy Dispatch, published by Teamsters for

a Democratic Union (“TDU”), to have pro-Carey campaign content.  See Hoffa, P-313-

LU728-SEC (February 26, 1996) (finding that making copies of the Convoy Dispatch available on a table in a local union hall while barring pro-Hoffa campaign materials on the premises constitutes a form of discrimination in favor of Mr. Carey and his slate).  In the present matter, Mr. Peterson admits to having placed copies of the Convoy Dispatch in the local union’s main entrance area for the past two years, though he has ceased the practice since the filing of this protest.  He also admits that he and Local Union 385 did not permit a similar placement of Hoffa campaign material during this period.

Without finding whether other pro-Carey campaign material was permitted, the Election Officer finds that the practice of permitting the placement of the Convoy Dispatch while barring the similar placement of Hoffa campaign material constituted discrimination violative of

Article VIII, Section 5(a)(4) of the Rules.

2.              Allegations Pertaining to Campaigning in Local Union Parking Lot

With respect to Local Union 385’s ban on campaigning in its parking lot, the Rules provide that campaigning outside a union hall cannot be restrained by the union:  “All Union members retain the right . . . to distribute campaign literature and to otherwise solicit support for a member’s candidacy outside a meeting hall before, during and after a Union meeting, regardless of Union policy, rule or practice.”  Article VIII, Section 11(a).

The Election Officer finds Local Union 385’s policy to be a clear violation of

Article VIII, Section 11(a) of the Rules.

3.              Allegations Concerning the Posting of Campaign Literature

Regarding the allegations of permitting the posting of Carey campaign literature on the local union hall bulletin boards, the Election Officer credits the accounts of Mr. Welsh and the other two witnesses that Carey campaign literature has on occasion been posted.  However, there is insufficient evidence to indicate that Mr. Peterson or the local union has condoned the posting of such material, and by all accounts, the material has consistently been removed.  Under these circumstances, the Election Officer does not find a right of members to post campaign material on Local Union 385’s bulletin boards at the hall.  The Election Officer also finds insufficient evidence that Mr. Peterson or Local Union 385 has discriminated in favor of the Carey campaign by permitting the posting of Carey campaign literature while forbidding a similar posting of Hoffa campaign literature.

Christopher Welsh

November 18, 1996

Page 1

4.              Allegations Regarding Campaign Paraphernalia on Local Union Vehicles

With respect to the last of Mr. Welsh’s allegations, Article VIII, Section 11(c) of the Rules provides an exception to the Rules’ general prohibition against the use of union property for campaign purposes.  Article VIII, Section 11(c) reads, in relevant part:

Union officials and employees provided with Union-owned or leased cars, if otherwise afforded the right to utilize those cars for personal activities, may use the cars for campaign activities, provided no costs, or expenses incurred as consequence of such use are paid out of Union funds or other prohibited sources.

Pursuant to this exception, the Election Officer has permitted union staff to display campaign materials on their union-leased vehicles, provided that these vehicles are also available to them for their personal use.  See Van Der Woude, P-1041-LU194-PNJ (October 28, 1996) (finding that a vehicle owned by a local union and displaying two campaign bumper tickers falls within the Article VIII, Section 11(c) exception because it was available to the staff member

for his personal use).  See also Blake, P-172-LU630-CLA (April 29, 1996), aff’d, 96 - Elec.

App. - 185 (KC) (May 10, 1996) (bumper sticker on personal vehicle used for union business

and for which the union reimburses for mileage and maintenance permitted).

In the present matter, all the vehicles at issue, although leased by Local Union 385, are available to the staff for their personal use.  Therefore, the Article VIII, Section 11(c) exception applies.

Based on the foregoing, the protest is GRANTED with respect to Local Union 385’s literature distribution table and prohibiting campaigning in the local union hall’s parking lot.  The protest is DENIED in all other respects.

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.

Although the evidence indicates that since the filing of this protest, Mr. Peterson has ceased placing copies of the Convoy Dispatch in the main entrance area, the Election Officer believes that this is insufficient to remedy the discrimination that has occurred.  Therefore, the Election Officer orders Mr. Peterson and Local Union 385 to make available for distribution campaign materials supporting Mr. Hoffa’s candidacy, through December 10, 1996, in the same area where the Convoy Dispatch has previously been made available.

The Election Officer also orders Mr. Peterson and Local Union 385 to immediately cease and desist from interfering with the right of members to campaign in the local union’s parking lot, under the Rules.

Christopher Welsh

November 18, 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

Maureen Geraghty, Adjunct Regional Coordinator