February 24, 1998
VIA UPS OVERNIGHT
Brian J. Smith
February 24, 1998
Page 1
Brian J. Smith
22557 Bramble Hill
Joliet, IL 60431
William T. Hogan, Jr.
219 Avondale
Palatine, IL 60067
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
Jim Coli
Remke Printing
2121 South Foster Avenue
Wheeling, IL 60090
Martin Burns, Esq.
Jacobs, Burns, Sugarman & Orlove
201 North Wells Street, Suite 1900
Chicago, IL 60606
Brian J. Smith
February 24, 1998
Page 1
Re: Election Office Case No. PR-034-LU714-NCE
Gentlemen:
Brian J. Smith, a member of Local Union 714, 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 William Hogan, Jr. The protester alleges that Mr. Hogan, a retired member of Local Union 714, is an employer and that his campaign activities in support of the candidacy of James Hoffa violate the Rules. Mr. Hogan responds that he is not an employer. He further asserts that while he has campaigned on behalf of Mr. Hoffa in a volunteer capacity, he has not contributed financially to the Hoffa campaign.
This protest was investigated by Regional Coordinator Judith E. Kuhn.
Mr. Smith filed the instant protest on November 19, 1997. As evidence of Mr. Hogan’s status as an employer, Mr. Smith submitted to the Election Officer a promotional letter for a company named Remke Printing (“Remke”) dated April 14, 1997 which reads as follows:
Brian J. Smith
February 24, 1998
Page 1
Bill and I have purchased a union printing company. It is an existing company that has been doing work for several unions. We are hopeful that we can build this company up by calling on friends such as yourself and asking for the opportunity to meet your printing needs. A brochure is enclosed for your review. A sample of your printing needs as well as your current cost would be very helpful for us to provide you with quality work at a competitive price. We would appreciate a chance to do some of your work . . .
Your friends,
[signature] [signature]
Bill Hogan Jim Hogan
Mr. Smith stated that he had observed a news conference on television in which Mr. Hogan expressed his support for Mr. Hoffa. The protester submitted a videotape of the conference to the Election Office. He submitted no other evidence to the Election Office which supported the allegation regarding Mr. Hogan’s status as an employer.
There is no dispute that Mr. Hogan is not an active IBT member. Furthermore, Mr. Hogan admits that he is currently volunteering his services to the Hoffa campaign in the Chicago area and has actively campaigned on behalf of Mr. Hoffa in the past. Mr. Hogan asserts that the solicitation letter dated April 14, 1997 was predicated on a plan to obtain an ownership interest in Remke. However, he claims that he never obtained any ownership interest in the company and only worked for Remke as a commissioned salesperson.
Article XII, Sections 1(a) and 1(b)(1) of the Rules prohibit an employer from making any campaign contributions to the campaign of a candidate for delegate or International office. The Rules define “campaign contributions” to include “any direct or indirect contribution of money or other thing of value where the purpose, object or foreseeable effect of that contribution is to influence the election of a candidate.” Rules, Definitions, 5. As stated in the Election Officer’s Advisory on Campaign Contributions and Disclosure (“Advisory”), such contributions can include any goods, compensated services or any material things of value.
As long as a non-member is not an employer, Article XII, Section (1)(b)(6) of the Rules allows such an individual to provide services to a candidate if “rendered on the individual’s personal free time without compensation in any form by an employer . . . and without accompanying contributions of supplies or of services of others who are compensated by an employer or labor organization for such services.”
The Advisory further states the following:
Brian J. Smith
February 24, 1998
Page 1
If a non-member donates goods or services that are within the non-member’s regular business, work or income-producing activity, the non-member must bill for the fair market value or the normal commercial rate for those goods or services. If not, the contribution is prohibited under the Rerun Plan. If a non-member donates services that are outside the non-member’s regular business, work or income producing activity, the donation may be considered as volunteer services and generally will not constitute a contribution.
Advisory, page 3.
The Election Officer conducted a thorough investigation of Mr. Smith’s allegations. The Election Officer interviewed the principals of Remke as well as Mr. Hogan, and reviewed records subpoenaed from Remke concerning the company’s relationship, if any, to Mr. Hogan. The investigation found no facts to substantiate the allegation that Mr. Hogan actually is or was an owner of Remke. While Mr. Hogan had contemplated acquiring an ownership interest in the company, no transaction deal was ever completed. The April 14, 1997 solicitation letter was prepared prematurely by Mr. Hogan’s brother without the knowledge or participation of either Mr. Hogan or Remke’s owner. Mr. Hogan worked as an independent sales representative for Remke in 1997, and received payment accordingly. He continues in that status today. The Election Officer found no evidence to support the protester’s allegation that Mr. Hogan otherwise functioned as an “employer” at Remke. The company is a relatively small one, employing the equivalent of approximately three full-time workers. There is no indication that Mr. Hogan had any control at any time over the decision making process relating to the hiring, firing, or daily work of Remke’s employees. Absent any evidence that Mr. Hogan is an employer, or is performing work for the campaign within his regular current occupation, he is free to volunteer his time to the campaign of Mr. Hoffa.
Accordingly, the protest is DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) 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
Brian J. Smith
February 24, 1998
Page 1
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
MGC:chh
cc: Kenneth Conboy, Election Appeals Master
Judith E. Kuhn, Regional Coordinator
Brian J. Smith
February 24, 1998
Page 1
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