November 27, 1996
VIA UPS OVERNIGHT
Pat Connell
November 27, 1996
Page 1
Pat Connell
60-60 60th Street
Maspeth, NY 11378
Joseph Byers, President
Teamsters Local Union 202
New York City Terminal Market
Room #9A
Hunts Point and E. Bay Avenue
Bronx, NY 10474
Nick Penachio
Nick Penachio Company
240 Food Center Drive
Bronx, NY 10474
Richard Brook
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
Pat Connell
November 27, 1996
Page 1
Re: Election Office Case No. P-1294-LU807-NYC
Gentlemen:
Pat Connell, a member of Local Union 807, 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”) against the Nick Penachio Company (“Penachio”), Local Union 202 and the Hoffa campaign. Mr. Connell alleges that on November 22, 1996, he observed a truck owned by Penachio being driven in New York City with a Hoffa bumper sticker affixed to it, in violation of the Rules.
Nick Penachio, president of Penachio, states that Hoffa campaign material is displayed on all of his trucks. Mr. Penachio offered the protester the opportunity to place Carey campaign material on his trucks as well.
Pat Connell
November 27, 1996
Page 1
Joseph R. Byers, president of Local Union 202, states that he has posted a memo from the Election Officer in Penachio’s facility instructing members not to place campaign material on employer property.[1] The Hoffa campaign denies any knowledge of the incident that led to this protest.
New York City Protest Coordinator Barbara C. Deinhardt investigated the protest.
Penachio employs IBT members represented by Local Union 202 and is located at Hunts Point Market in the Bronx. On November 22, 1996, Mr. Connell observed a Penachio truck in Manhattan which displayed a Hoffa bumper sticker. Mr. Connell contacted
Mr. Penachio and requested that he remove the sticker. Citing the principle of freedom of speech, Mr. Penachio refused to do so and stated that he would not instruct his employees to do so. Mr. Penachio informed Mr. Connell that Hoffa stickers were displayed on all of Penachio’s trucks and offered the protester the opportunity to affix materials in support of General President Ron Carey to the fleet.
In the course of the Election Officer’s investigation, her representative contacted
Mr. Penachio, who agreed to remove all campaign stickers from his trucks and to abide by any decision of the Election Officer.
Mr. Byers states that he sent one of the local union’s organizers, Charlie Machadio, to the employer’s facility to ensure that the notice issued by the Election Officer in Maney, supra, was still posted and to speak with the drivers. Mr. Machadio informed the Election Officer’s representative that he advised all of the drivers employed by Penachio to remove all campaign stickers from the trucks and to make sure that these items were not replaced.
Mr. Machadio gave each driver a copy of the Maney notice. He also spoke with the member responsible for putting gas in the trucks and with the foremen who back the trucks into the bays, asking them to check the trucks during their duties and to remove any stickers they see.
Article XII, Section 1(b)(1) of the Rules states as follows:
No employer may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate. No candidate may accept or use any such contribution.
Pat Connell
November 27, 1996
Page 1
While the Rules protect the ability of members to support candidates of their own choosing, that protection does not extend to affixing campaign material to property that belongs to an employer.[2] 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.”
In a series of recent cases, the Election Officer held that affixing campaign material to employer-owned trucks constitutes an improper campaign contribution on the part of the employer, in violation of Article XII, Section 1(b)(1) of the Rules. See, e.g., Feeley, P-874-LU817-MGN (September 17, 1996); Maney, supra; Knox, P-1006-SFD-MGN (October 14, 1996); Sweeney, P-1058-LU907-NYC (October 28, 1996); Connell, P-1140-LU863-NYC (November 20, 1996). In these cases, the Election Officer further stated that placing campaign material on an employer’s truck “can also create a false impression of employer endorsement, which would be another form of improper campaign contribution.”
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 campaign material to an employer’s property results in a violation of the Rules on the part of the candidate who the member intends to support.
In the instant case, the Election Officer finds that both Local Union 202 and the employer have taken affirmative steps to remove the campaign stickers from Penachio’s trucks and to ensure that campaign material is not affixed to the trucks in the future. The protest was filed on November 22, 1996. The evidence provided to the Election Officer indicates that the stickers were promptly removed. As the Election Officer has recently stated, “Immediate removal ends any potential impact of the improper campaigning.” Hoffmann, P-1050-
LU817-NYC (October 28, 1996); Sweeney, P-1029-RCS-NYC et seq. (October 28, 1996); Aguilar, P-1080-LU848-CLA (October 31, 1996); Hoffa, P-1048-LU572-CLA (November 1, 1996).
In regard to the Hoffa campaign, the Election Officer has been informed that the campaign wishes to fully comply with the Rules and with the decision of the Election Officer. To this end, the campaign has agreed to send a letter to the employer and Local Union 202, asking both parties to ensure that no campaign material is affixed to Penachio’s trucks in the future.
For the foregoing reasons, the protest is RESOLVED with respect to Local Union 202, Penachio’s and the Hoffa campaign.
Pat Connell
November 27, 1996
Page 1
To guard against future violations of the Rules for the duration of the election period, the employer has agreed to post the attached “Notice to Local Union 202 Members” and post it on all local union bulletin boards at its facility in Hunts Point Market. The notice must remain posted through December 10, 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
Barbara C. Deinhardt, New York City Protest Coordinator
NOTICE TO LOCAL UNION 202 MEMBERS EMPLOYED AT NICK PENACHIO COMPANY
RE: IMPROPER USE OF EMPLOYER PROPERTY
The Election Officer has found that International officer campaign material cannot be affixed to trucks owned by the Nick Penachio Company.
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-owned trucks violates the Election Rules.
You are hereby instructed to immediately stop such activity.
____________________ _____________________________
Date Nick Penachio, President
Nick Penachio Company
This is an official notice which must remain posted through December 10, 1996 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.
[1]This notice, included in the Election Officer’s decision in Maney, P-956-IATSE-NYC et seq. (October 2, 1996), aff’d, 96 - Elec. App. - 251 (KC) (October 15, 1996), was distributed by the local unions within Joint Council 16 to all local union officers, stewards and business agents. Pointing out that campaigning is “a personal right of members” under the Rules, the Election Officer stated in the notice, “Putting International officer campaign material on employer property, or using employer resources in order to campaign, violates the Election Rules.”
[2]Article VIII, Section 11(a) of the Rules guarantees all union members the right “to participate in campaign activities, including the right to . . . support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.”