Protest Decisions

March 10, 1998

VIA UPS OVERNIGHT

James P. Hoffa

March 10, 1998

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

James P. Hoffa Slate

c/o Patrick J. Szymanski, Esq.

Baptiste & Wilder

1150 Connecticut Avenue, NW

Suite 500

Washington, DC  20036

Ron Carey Slate

c/o Susan Davis, Esq.

Cohen, Weiss and Simon

330 West 42nd Street

New York, NY  10036

Tom Sever, Gen. Secy. - Treas.

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Ken Paff

Teamsters for a Democratic Union

7435 Michigan Avenue

Detroit, MI  48210

Diana Kilmury

2612 East 47th Avenue

Vancouver, BC  V5S 1C1

Canada

Ken Hall

Parcel and Small Package Trade Division

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Tom Leedham

Warehouse Division

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

David L. Neigus

Deputy General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Gene Moriarty

41 Pine Street

Watertown, CT  06795

Matt Witt

Communications Department

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Nancy Coleman

Communications Department

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Carter Wright

Communications Department

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

James P. Hoffa

March 10, 1998

Page 1

Jeff Cappella

Communications Department

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Maria Maldonado

Education Department

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

John Braxton

Education Department

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Bob Muehlenkamp

Organizing Department

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Paul Boldin

Research Department

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Claude Brown

Corporate & Strategic Initiatives

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Sandy Pope

Warehouse Division

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Michael Kapsa

Research Department

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Joan Parker

Education Department

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Bradley T. Raymond, Esq.

Finkel, Whitefield, Selik,

  Raymond, Ferrara & Feldman

32300 Northwestern Highway

Suite 200

Farmington Hills, MI  48334

Paul Alan Levy, Esq.

Public Citizen Litigation Group

1600 20th Street, NW

Washington, DC  20009

James P. Hoffa

March 10, 1998

Page 1

Re:  Election Office Case No. PR-039-IBT-EOH

Gentlepersons:

James P. Hoffa

March 10, 1998

Page 1

James P. Hoffa, a candidate for general president, 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 Teamsters for a Democratic Union (“TDU”), the Carey Slate and the IBT.  The protester alleges that the TDU made an improper contribution to the Carey Campaign by permitting Mr. Carey and members of the Carey Slate to engage in election-related activity and solicit campaign contributions at the annual TDU Rank and File Convention (“Convention”), which took place in Cleveland, Ohio, on November 21 to 23, 1997.  Mr. Hoffa also alleges that the IBT improperly contributed to the Carey Slate by paying the salaries, transportation, lodging, and other expenses of certain officers and members of the IBT staff who attended the Convention.  The protester specifically asserts that Joan Parker, an employee of the IBT Communications Department, prepared flyers and other documents for the Convention while on IBT time using IBT equipment.

TDU admits that Mr. Carey and other candidates were permitted to address the Convention and engage in campaign activity but responds it did not finance any such activity at the Convention.  The IBT admits that certain officers and staff members attended the Convention but contends that no union resources were used or expended on campaign-related activities in violation of the Rules.

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

A.  The Convention

The 22nd annual Convention took place in Cleveland, Ohio, on November 21 to 23, 1997.  According to the agenda, workshops were first presented on the afternoon of Friday, November 21, 1997.  Later that evening, a dinner was held, featuring a program about the strike against United Parcel Service.  The workshops presented on Friday afternoon were:  (1) Serving To Mobilization:  Rebuilding Local Unions From Below; (2) Union Structure:  How It Works and How To Make It Work For You; (3) Teamster Power:  Moving from UPS Across Our Union; (4) Getting Out The Vote:  Phonebanking, Leafleting, and More; (5) Teamster Action Plan:   Building Rank and File Power Through TDU; and (6) Film at Eleven:  Guaranteed Techniques to Get in the News. 

On Saturday, November 22, 1997, general sessions and workshops were held.  The morning general session was entitled “Teamsters In Action:  Building Our Union.”  Workshop titles included (1) Building Member to Member Networks for TDUers; (2) Forming and Activating Your Local Volunteer Organizing Committee; (3) Fun and Power on the Shop Floor; (4) How To Win Past Practices Grievances; (5) Organizing for Better Benefits; (6) Organizing Political Action & Building Coalitions; (7) Running for Local Union Office; and (8) The Ins and Outs of Managing Your Local Union Office.  The general session for Saturday afternoon included a discussion entitled “On To Election Victory.”  Mr. Carey addressed the evening event.

James P. Hoffa

March 10, 1998

Page 1

On Sunday morning, the Women’s Network met as did groups of members having similar work jurisdictions.  In the afternoon, additional workshops were presented including (1) Building a Rank and File Caucus In Your Local Union; (2) Family and Medical Leave Act; (3) Increasing Your Local’s Organizing Resources; (4) Legal Rights of Union Stewards; (5) Workplace Strategies:  Organizing to Win on the Shop Floor.  The Convention adjourned at 3:00 p.m. on November 23.

B.  Alleged TDU Contributions

With respect to the allegations of improper TDU contributions, the protester specifically contends that candidates and “other agents” of the Carey Slate were permitted to speak to the Convention and thus engage in campaign activity.  These candidates did not pay TDU for the time and the audience they were provided.  Because the Convention costs were paid partly with money from other than active IBT members, the protester argues that the free Convention platform constituted a prohibited contribution.  In addition, these individuals allegedly sought contributions at the Convention from non-IBT members.  Further, Mr. Hoffa alleges that TDU solicited campaign contributions without utilizing a disclaimer explaining the pertinent restrictions. 

The activities and status of the TDU have been the subject of a several previous decisions that apply to this protest.  It is well established that TDU is an “independent committee,” as that term is used in the Rules, because it consists of a caucus or group of union members not controlled by a candidate or slate, which has accepted funds or made expenditures with the “purpose, object or foreseeable effect” of influencing the International election.  Rules, Definitions, at Section 22; Advisory on Campaign Contributions and Disclosure (Revised November 1997) (“Advisory”), p. 19; Halberg, P-019-LU174-PNW (December 14, 1995) (decision on remand).  As an “independent committee,” the TDU may contribute to International campaigns even if financial assistance is received from sources prohibited under the Rules.  However, the Rules and the Rerun Plan require that monetary support for campaign activities consist exclusively of funds received from IBT members.  Funds received from any other sources cannot be contributed to any candidate through TDU, or any other independent committee, and must be properly allocated and segregated.  In re: Gully, 91 - Elec. App. - 158 (SA) (June 12, 1991), aff’g, Sargent, P-249-LU283-MGN (May 21, 1991).

Since the Election Officer’s decision in Gully, TDU has consistently been required to allocate and separate permitted funds from prohibited funds in the regular course of its operations.  For example, TDU has continued to engage in significant campaign activity while sharing resources, such as staff and office rent, with the Teamster Rank and File Legal Defense and Education Fund (“TRF”).  TRF is a “foundation” supported by prohibited funds.  See, Rules at Article XII, Section 1(a) and Halberg, supra.  Pursuant to the Election Officer’s direction, TDU periodically determines the percentage of overhead and time spent by shared staff on campaign activity and reimburses TRF for that amount.  Thus, campaign activity is supported with funds from permitted sources.

James P. Hoffa

March 10, 1998

Page 1

The application of this system to the annual TDU Convention was addressed in Gully.  The Election Officer has specifically found that TDU staff devote “considerable time prior to the convention organizing workshops, publicizing the convention and encouraging TDU members to attend.”  The Election Officer has therefore determined that “TDU must not only allocate all of its staff time spent at the convention on campaign related activities, it must apply an allocation percentage to all time spent by staff organizing the convention.”

To implement this allocation and reimbursement requirement, TDU has operated an accounting program known as the Huddleston system.  A description of this system, as it has been operated by the TDU since January 1995, is contained in the Halberg decision:

Under the current allocation system, each staff member must maintain and submit daily time sheets which are then tabulated to determine the total time spent in various categories.  Weekly  summaries are prepared and compiled.  Each month these reports are closed out and allocation figures are determined.  TDU-related time is percentaged against total time to establish a “TDU percentage” for each staff person.  Salaries, benefits, and overhead are paid by the respective organizations on the basis of this percentage. 

The Rerun Plan imposed restrictions on permissible contributions in addition to those in effect during the initial election.  As stated in the Advisory, only active members, an active member’s immediate family or an independent committee may contribute to a campaign.  Contributions are limited to $1,000 for individual members and their families, including contributions to independent committees, and to $5,000 per candidate.[1] 

TDU has modified its allocation system to account for these changes.  There are now three allocation categories, (1) non-TDU, (2) TDU rerun, and (3) TDU non-rerun.  Membership in TDU is still open to any member of the IBT, any member’s spouse, and any retired member or spouse.  TDU uses the “TDU Rerun” category as an accounting code for income received by the TDU from active union members and their immediate families.  TDU has stated that it uses this account for those funds that it contributes toward rerun campaign activities.  TDU records the name and local union number of every contributor as well as the amount of each contribution in its effort to comply with the Rerun Plan, Section V(B)(4).  TDU states that it reimburses TRF for the allocated percentage of rerun costs with funds from the TDU rerun account.

James P. Hoffa

March 10, 1998

Page 1

TDU does not dispute that a part of the Convention was campaign-related, that it could only use contributions permitted under the Rerun Plan to pay that part of the Convention costs, and that an allocation of income was therefore necessary.  After the Convention, staff members and workshop leaders were polled by TDU concerning the actual content of the meetings and workshops.  Based on this information, TDU allocated a percentage of the Convention and determined that 13.97 percent, or 4.75 out of 34 total were campaign-related, and charged that percentage of the Convention’s total cost of $92,927 to the TDU Rerun account.

The Election Officer independently reviewed TDU’s allocation by examining evidence relating to Convention activities including (1) the agenda of Convention programs and associated materials; (2) a video tape containing the formal remarks of Ken Hall, Director of the IBT’s Parcel and Small Package Division, Tom Leedham, IBT vice-president and Director of the Warehouse Division, and Richard Nelson, IBT vice-president and Director of the Freight Division; (3) the statements of IBT vice-president Diana Kilmury and Mr. Leedham, together with notes of their remarks; and (4) the testimony of Arden D’Amico, a supporter of Mr. Hoffa who attended the Convention.  Ms. Kilmury, Mr. Leedham, and Mr. Nelson are candidates for re-election on the Carey Slate.  Mr. Hall is not a current candidate.  The Election Officer also reviewed the TDU calculation with the individuals who prepared it.

As a result of the Election Officer’s review, the TDU increased their allocation from its initial determination to 13.97 percent.  The Election Officer concludes that a figure of 13.97 percent reasonably approximates the ratio of campaign-related activity to non-campaign-related activity at the Convention.  The evidence concerning the 1997 Convention supports that allocation and the percentage is reasonable when compared to calculations for past TDU Conventions.  TDU has charged its TDU Rerun budget code with this amount of allocated costs.

Because of this allocation described, TDU has demonstrated that campaign-related activity at the Convention was funded with money donated by permitted contributors as defined by the Rerun Plan.  In the absence of such an allocation, independent committees or other groups of union members that permitted candidates to campaign could not show that the forum was paid for with permitted contributions.  The use of prohibited funds to sponsor campaign presentations would violate the Rules.  McCormick, PR-012-LU705-NCE (November 17, 1997) (withdrawn for additional investigation on an unrelated issue).  The evidence shows that TDU has made an appropriate allocation of cost.  To the extent that the activities at the Convention provided a forum to candidates and that cost was supported by permissible funds the Rules were not violated. 

The written materials used in part by TDU to promote and finance the Convention, including the TDU newspaper Convoy Dispatch, did not contain a disclaimer similar to that recommended by the Election Officer in the Advisory.  However, a detailed disclaimer was read to the Convention participants on two different occasions during the proceedings.  Assuming that the material promoting the Convention can also be considered campaign literature, the failure of TDU to use a disclaimer is not, in and of itself, a violation of the Rules. 

James P. Hoffa

March 10, 1998

Page 1

Although a candidate is strictly liable to ensure that the source of each contribution received is proper under Article XII, Section 1(b)(9), the use of disclaimer remains voluntary.  Carey, PR-022-RCS-NYC (November 3, 1997); Hoffa, PR-043-LU385-SCE (January 9, 1998); aff’d 98 - Elec.App. - 339 (KC) (January 30, 1998).  An allegation of a Rules or Rerun Plan violation is sustainable only if items of literature or promotional material containing an inaccurate disclaimer are sent to persons or entities who are not IBT members or some other evidence exists showing that improper contributions have been made.  McCormick, supra.  There is no evidence that any funds were contributed or used improperly.  Rather, the evidence shows that funds collected from non-IBT members were deposited directly to TRF and that funds from active members or their spouses were used by TDU to reimburse TRF for the rerun-related activity.

B.  Alleged IBT Contributions

The protester generally alleges that the IBT made “significant illegal contributions to the Carey Slate and its individual members” by paying the transportation, lodging, and travel expenses of IBT officers and staff members who attended the Convention and by allowing IBT staff to assist in the preparations for the Convention on IBT time using IBT equipment and resources.  The protest specifies eighteen IBT officers and staff as having attended the Convention but does not link the alleged improper contributions to any of them except for Ms. Parker, the Education Coordinator for the IBT.

No evidence was presented or found to show that any IBT funds were expended in connection with the travel, lodging or other expenses of any IBT officer or staff member attending the Convention.  The IBT did supply published materials for use in Convention workshops.  The pamphlets were educational in nature and of a type routinely provided by the IBT to members at meetings or workshops conducted by IBT staff.  The materials were not campaign-related. 

The investigation disclosed that three IBT staff members prepared materials for the Convention using IBT equipment on time paid for by the IBT.  Mr. Muehlenkamp, the Director of Organizing for the IBT, made notes and provided IBT pamphlets for a workshop he conducted at the Convention on the subject of local union organizing.  Matt Witt, the IBT’s Director of Communications, developed drafts of ideas for Mr. Hall and for Messrs. Nelson and Leedham as suggestions for their remarks at the Convention.  Ms. Parker assembled materials for a workshop on building member-to-member networks, including an agenda for the workshop itself.

While participation in “campaign activity” is guaranteed to all members by Article VIII, Section 11(a), the use of union funds and union resources to campaign is prohibited.  See, Rules, Article VIII, Section 11 and Article XII, Section 1(b)(3).  Article VIII, Section 11(a) expressly states that “[N]o candidate or member may campaign during his/her working hours” unless such campaigning is incidental to work.

James P. Hoffa

March 10, 1998

Page 1

The Election Officer concludes that no union funds or resources were used improperly. Each officer and employee attending the Convention did so at his or her own expense.  The materials used by Ms. Parker and Mr. Muehlenkamp at the Convention and prepared by them on union time and while using union resources were not election-related.  The evidence shows that Ms. Parker prepared the workshop materials.  No evidence was provided to show that Ms. Parker prepared the agenda or any other document for the Convention.

Mr. Witt maintains that the ideas he drafted for Mr. Hall and Messrs. Leedham and Nelson were, like the work completed by Ms. Parker and Mr. Muehlenkamp, not election-related.  The notes made by Mr. Witt with regard to the speeches no longer exist and there is no other direct evidence of his work.  The Election Officer, however, has reviewed the speeches on video tape to determine whether they contain campaign material.  The tape recording appears to be the best evidence remaining of Mr. Witt’s efforts on behalf of these speakers.

Each speaker discussed the accomplishments of his department and addressed future goals.  These subjects were newsworthy to members and did not relate to the campaign.  A few days before the Convention, the Election Officer had disqualified Mr. Carey as a candidate.  In this context, each speaker briefly expressed admiration for Mr. Carey as general president and made reference to Mr. Carey’s role in bringing about reforms within the IBT.  None of these three speakers referred directly to the rerun election, the candidates, the slates, or any other election-related matter. 

Article VIII, Section 8(a) of the Rules states that a publication or communication financed directly or indirectly with union funds may not be “used to support or attack any candidate or the candidacy of any person.”  In reviewing union-financed communications for improper campaign content, the Election Officer looks to the tone, content and timing of the publication.  Martin, P-010-IBT-PNJ, (August 17, 1995), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995).  The Election Officer also considers the context in which the communications appeared.

              In Martin, the Election Officer recognized that union officers and officials have a “right and responsibility to exercise the powers of their office to advise and report to the membership on issues of general concern.”  (Quoting Camarata v. International Bhd. of Teamsters, 478 F.Supp. 321, 330 (D.D.C. 1979), aff’d, 108 L.R.R.M. (BNA) 2924 (D.C. Cir. 1981)).  Prior decisions of the Election Officer have noted that so long as a report or communication on the activity of an incumbent “is addressed to the regular functions, policies and activities of such incumbents as officers involved in matters of interest to the membership, and not as candidates for reelection, there is no violation of [the Act]”.  Donovan v. Metro Dist. Council, 797 F.2d 140, 145 (3d Cir. 1986), citing Camarata, supra. 

James P. Hoffa

March 10, 1998

Page 1

The references made by Messrs. Hall, Leedham, and Nelson to Mr. Carey at the Convention occurred in the context of the recent disqualification decision.  The Election Officer’s protest decisions are subjects of general legitimate interest to union members.  Blake, P-245-JC42-CLA (December 18, 1996), aff’d 96 - Elec.App. - 54 (KC) (January 12, 1996); Atha, PR-001-IBT-EOH (October 10, 1997).  The IBT’s efforts to free itself of corrupt influences is also a proper subject for union-financed communications.  Martin, supra (corruption within the union); Hoffa, P-808-IBT-SCE (June 28, 1996), aff’d, 96 - Elec. App. - 213 (July 17, 1996) (advocacy of reforms by IBT); In re:  Hoffa, 96 - Elec. App. - 97 (KC) (February 23, 1996) (efforts to free the IBT of corrupt influence). 

Thus, based on Mr. Witt’s statement and the content of the speeches, there is no reason to conclude that Mr. Witt’s time and effort in drafting these suggestions violated the Rules.

Pursuant to the Rules at Article VIII, Section 11(a), all IBT staff and members attending the Convention, including members of the Carey Slate, retained the right to solicit support and otherwise engage in campaign activities at the Convention, since no union or other improper funds were used to pay their expenses.

              For the reasons stated above, 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

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

Barbara C. Deinhardt, New York City Protest Coordinator