Protest Decisions

              April 27, 1998

VIA FACSIMILE

Gene Moriarty

April 27, 1998

Page 1

Gene Moriarty

c/o Ron Carey Campaign

Post Office Box 77067

Washington, DC  20013

Fax:  (202) 393-0969

Mary Lou Salmeron

1616 West 9th Street

Suite 300

Los Angeles, CA  90015

Fax:  (213) 389-9860

Dede Hill, Esq.

Cohen, Weiss and Simon

330 West 42nd Street

New York, NY  10036

Fax:  (212) 695-5436

George Pappy, Esq.

Pappy & Davis

2550 North Hollywood Way

Suite 501

Burbank, CA  XXX-XX-XXXX

Fax:  (818) 972-1617

Patrick J. Szymanski, Esq,

Baptiste & Wilder

1150 Connecticut Avenue, NW

Suite 500

Washington, DC  20036

Fax:  (202) 223-9677

Gene Moriarty

April 27, 1998

Page 1

Re: Election Office Case No. PR-056-LU986-EOH

Gentlepersons:

Gene Moriarty, a member of Local Union 677, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”).  The protester alleged that Mary Lou Salmeron, Recording Secretary of Local Union 986 and a candidate for International Trustee on the Hoffa Slate in the initial and rerun elections, controlled the Fund.  The Fund had filed Campaign Contribution and Expenditure Reports (“CCERs”) identifying itself as an independent committee.  The protester contended that it is a Salmeron Campaign Committee.  The protester also contended that the Fund had not segregated money raised for the initial election from money raised for the rerun election in violation of the Election Officer’s Advisory on Campaign Contributions and Disclosure (“Advisory”), revised November 1997.

Gene Moriarty

April 27, 1998

Page 1

During the investigation of this protest, the Election Officer was advised by the Chief Investigator’s office of the Independent Review Board (“IRB”) that it had received and was investigating a complaint that during the initial election, the staff of Local Union 986 had been coerced to contribute to the Fund in the initial election to support Ms. Salmeron’s campaign for International Trustee.  Because these allegations concerned the Fund and alleged serious issues of coercion in the initial election, the Election Officer included the allegation of coercion in his investigation of the protest.

Ms. Salmeron denied all of the allegations.  She contended that she did not control the Fund and that all contributions to the Fund were voluntary.

This protest was investigated by Director of Campaign Finance Leslie Deak.  The investigation included a thorough examination of the records submitted by the Fund, a review of the depositions of Local Union 986 employees taken by the IRB, an examination of the meeting minutes from the executive board and general membership meetings, and the deposition of Ms. Salmeron.  The Election Officer also audited the accounts for Local Union 986, the Salmeron Campaign and the Fund.

I.              Statement of Facts

During the 1980's, a business agents fund, called the “B.A. Fund,” was created at Local Union 986.  The B.A. Fund was established to pay for local union campaigns and incidental expenses, such as lunches for secretaries.  According to the sworn statement of John Harren, President of Local Union 986 and Administrator of the B.A. Fund, at the time it was established, the participating officers and business agents authorized the payroll deduction of contributions to the B.A. Fund.  The participants would contribute varying amounts to the B.A. Fund, depending on the amount of money and the need for money in the B.A. Fund.  The payroll deduction forms kept by the local union indicate that the business agents began contributing to the B.A. Fund through payroll deductions in February 1990, and renewed these payroll deductions in January 1995.  Both in 1990 and 1995, the business agents authorized a $50 monthly deduction from their payroll.  In December 1995, the business agents authorized an increase in their monthly deduction to the B.A. Fund to $100.

Mr. Harren had authority to sign B.A. Fund checks.  Mary Lou Salmeron is the Recording Secretary and the long-time office manager for the headquarters of Local Union 986.  Occasionally, she would prepare checks from the B.A. Fund accounts for Mr. Harren to sign.  Mr. Harren would hold informal meetings with the business agents to discuss the transactions of the B.A. Fund after staff meetings. 

Although she was a business agent starting in May 1995, Ms. Salmeron did not become a participant in the B.A. Fund until she declared her candidacy for International Trustee in approximately October 1995.  Ms. Salmeron stated under oath that she joined the B.A. Fund at that time in order to increase the B.A. Fund’s support of her candidacy for International office. 

Gene Moriarty

April 27, 1998

Page 1

As Office Manager, Ms. Salmeron supervises the local union’s nine-person clerical staff.  She approves the secretaries’ leave requests, assigns them their duties and counsels them regarding the quality of their work.  She has the authority to initiate disciplinary action and recommend termination of the clerical staff members.  She and the secretaries are responsible for tracking the membership lists and dues payments for the local. 

After Ms. Salmeron joined the B.A. Fund, in October 1995, she decided that the clerical staff should participate in the B.A. Fund in order to support her candidacy.  Ms. Salmeron approached Michael Riley, Secretary-Treasurer of Local Union 986, and Mr. Harren with this suggestion.  They agreed that the clerical staff could participate in the B.A. Fund. 

In approximately October 1995, Ms. Salmeron and Mr. Riley held a meeting with the clerical staff.  They first announced that the staff would receive a four percent raise.  The clerical staff had not received a raise since April 1993, when their salary was increased by $50 per week.  In a deposition given to the IRB, Mr. Riley stated that the clerical workers received no raises in 1994 because the local union was in a weak financial position, but that a dues increase in either August or September 1995, enabled the local union to implement raises in October 1995.

During the same staff meeting, Mr. Riley and Ms. Salmeron announced Ms. Salmeron’s candidacy for International office and asked for contributions to her campaign.  Ms. Salmeron and Mr. Riley instructed the clerical workers to contribute to Ms. Salmeron’s campaign through payroll deductions to the B.A. Fund.  They set the contribution level at $25 per month.  They did not allow the staff to chose different or individual contribution levels.  No staff member declined this “invitation.”

Several members of the clerical staff, testifying under oath to the IRB, described the statements in the staff meeting made by Ms. Salmeron and Mr. Riley as linking the raise to contributions to Ms. Salmeron’s Campaign.  One of the secretaries testified that Ms. Salmeron stated “Ladies, in order to get the raise, you are going to have to contribute.”  Although she described Ms. Salmeron’s tone as “joking,” she testified that she felt coerced to donate.  That witness also testified that Mr. Riley said, “Okay, ladies, we are going to be giving you a raise and we ask that you contribute to the B.A. Fund to help Mary Lou [Salmeron].”  A majority of the clerical staff stated that they felt coerced to donate money to Ms. Salmeron’s campaign.  Those witnesses viewed their contributions to Ms. Salmeron’s Campaign as involuntary.  Because their supervisors had directed them to contribute, the staff members believed that they had no choice but to contribute.[1]  Many witnesses stated that it was their belief that if they did not agree to join the B.A. Fund to support Ms. Salmeron’s Campaign, they may not have received the raise or would have suffered retaliation.

Gene Moriarty

April 27, 1998

Page 1

The entire clerical staff signed authorizations for payroll deductions into the B.A. Fund in December 1995.  The payroll deductions and the wage increases went into effect simultaneously in December 1995.  The majority of the clerical staff believed that their contributions were going to Ms. Salmeron’s campaign.  At least two staff members thought that they would have the deductions made from their pay for one year, during the life of the campaign, but that they could cease their participation in the B.A. Fund thereafter.

In October 1996, the B.A. Fund was disbanded by order of the Election Officer and the Fund was established.[2]  The payroll deduction ceased, the money in the B.A. Fund was paid out to its participants and the B.A. Fund closed the original bank accounts.  Mr. Harren and Ms. Salmeron had the majority of participants from the B.A. Fund contribute checks to the new Fund in the same amounts returned to them from the B.A. Fund.

Mr. Harren and Ms. Salmeron handled the final disbursements from the old B.A. Fund and the initial contributions to the new Fund.  The Fund was not administered through the union.  Contributors remitted their money directly to the Fund.

Ms. Salmeron continued to assist in administering the Fund, specifically by determining the employees who missed monthly contributions.  At least once, Ms. Salmeron compiled a list of employees’ names who failed to contribute and provided that information to Mr. Harren.  When employees failed to make their monthly contribution, Ms. Salmeron would read their names during staff meetings and follow up with additional requests for the contribution.  Through the requests, Ms. Salmeron pressured the employees to contribute. 

The clerical workers continued to contribute to the B.A. Fund, and subsequently the Fund, until November 1996.  After November 1996, they made one more contribution and ended their participation in the Fund.

Gene Moriarty

April 27, 1998

Page 1

Ms. Salmeron stated in a sworn statement that she had no role in administering either the B.A. Fund or the Fund.

The B.A. Fund and the Fund distributed the monies collected as follows:[3]

Therefore, 67.7 percent of the disbursements in the B.A. Fund and the Fund went to Ms. Salmeron’s campaign, and 22.9 percent went to the Hoffa Campaign.  90.6 percent of the disbursements went to the Hoffa Campaign or Ms. Salmeron.

II.              Allegation of Coercion of the Clerical Staff

Ms. Salmeron asserts that clerical staff participated in the B.A. Fund voluntarily because they wanted to contribute to her campaign.  She also contends that the clerical staff participated in setting the $25 per month contribution level.  The Election Officer finds Ms. Salmeron’s statements that the clerical staff voluntarily joined the B.A. Fund to contribute to her campaign not credible for the following reasons:

Ms. Salmeron, the supervisor of the clerical staff, admitted that she instructed the clerical staff to contribute during a staff meeting with her and Mr. Riley, not in informal conversations outside of work.  The Election Officer credits the statements made by the clerical staff in their depositions which attribute to Ms. Salmeron and Mr. Riley statements linking the contributions to the receipt of a raise.

Ms. Salmeron admitted it was her idea that the clerical workers should join the B.A. Fund in order to contribute to her campaign.  The idea to have the clerical staff join the B.A. Fund coincided with the announcement of her candidacy and her own decision to participate in the B.A. Fund.  At least two clerical employees specifically testified that it was Ms. Salmeron who set the amount of the contribution at $25 per month and told the employees that the money would be contributed by payroll deduction.

Gene Moriarty

April 27, 1998

Page 1

Article VIII, Section 11(a) of the Rules gives the fundamental right of all union members 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.”  The Election Officer previously has held that the right to participate as one chooses in an election “necessarily implies and includes the right to refrain from campaigning.”  Hoffa, P-812-IBT-NY (Aug. 16, 1996) at 11.  Correspondingly, the Rules prohibit retaliation or the threat of retaliation by any member of the IBT against any other IBT union member for the exercise of any right guaranteed by Article VIII.  Rules, Article VIII, Section 11(f).  As stated in Hoffa,

Therefore, any pressure to engage in campaign activity that interferes with a member’s own choice to campaign or not, is a violation of Article VIII, Section 11(a).  Any such pressure involving adverse action or a credible threat of adverse action would also violate the prohibition against retaliation in Article VIII, Section 11(f).

The Election Officer has specifically stated that no violation of the Rules at Article VIII, Section 11(f) can be sustained unless some evidence is presented or disclosed which expressly or inferentially connects the conduct which is alleged to be improper to an activity protected by the Rules.  Giacumbo, P-100-IBT-PNJ (October 13, 1995); Salucci, P-178-LU552-MOI (October 31, 1995).  Additionally, the Election Officer has repeatedly held that the existence of a reasonable independent basis for the allegedly improper conduct defeats an allegation of improper motivation, so long as such basis does not form an excuse for or is a pretext for conduct or action which is actually in violation of the Rules.  See Gilmartin, P-032-LU245-PNJ (January 5, 1996).

The Election Officer finds that Ms. Salmeron coerced the clerical staff of Local Union 986 into contributing to her election campaign.  The connection between the protected activity, contributing to an election campaign, and the improper conduct, the threat to deny raises or take other action if the employees did not contribute, was linked in her and Mr. Riley’s remarks to the clerical staff and in the timing of the events.  While Ms. Salmeron has consistently denied engaging in any coercive behavior, she admits she asked the clerical staff, employees she directly supervised, about contributing to the Fund during the staff meeting at which she announced long-awaited raises for the clerical staff.  At least one witness remembers statements made by Ms. Salmeron and Mr. Riley conditioning the raise on making contributions.  Other witnesses understood that the raise was conditioned to some degree on making contributions.  Those witnesses believed that if they did not make contributions, they might receive the raise but suffer other retaliation for failing to contribute.

Gene Moriarty

April 27, 1998

Page 1

Moreover, Ms. Salmeron and Mr. Riley were in a position to carry out the threat of retaliation by denial of a raise.  As secretary-treasurer of the local union, Mr. Riley was responsible for setting the compensation of the employees of Local Union 986 and, as the supervisor of the clerical workers, Ms. Salmeron played an integral part in securing the raises for her subordinates.  As the first-line supervisor of the clerical workers, Ms. Salmeron would have been able to harass the clerical workers in other ways, such as increasing work load, to retaliate for a failure to contribute to her campaign.

Additionally, no credible independent basis for the improper action, the threat to withhold raises, was provided by Ms. Salmeron.  Ms. Salmeron explained that she announced her candidacy to the clerical staff when it became clear she was a candidate.  Mr. Riley explained that the raises were given to the clerical staff at that time because the local union had become financially stable enough to support raises.  Although the two events, the candidacy and the possibility for raises, may have occurred contemporaneously, that does not provide a reasonable, independent basis for tying the two events together in one meeting.  Accordingly, the Election Officer finds that Ms. Salmeron knowingly and intentionally coerced her subordinates to donate money to her campaign in violation of the Rules.

III.              Allegations of Ms. Salmeron’s Control Over the Fund:

The protester alleged that the Fund, an independent committee, was in fact controlled by Ms. Salmeron.  In support of the allegations, the protester notes that :  1) Ms. Salmeron signed the CCERs for the Fund; 2) for the same period, Ms. Salmeron’s own CCER reflect no contributions or expenditures; 3) both the Fund and Salmeron’s Campaign use the same accountant; 4) all of the expenditures from the Fund went to candidates running in the International election; and 5) no affidavit was filed on behalf of the Fund attesting that the Fund is an independent committee and is not controlled by any candidate.

The Rules define an independent committee as “any person or entity not controlled by a candidate or slate who/which has accepted any campaign contribution, as defined by the Rules, or who/which has made any expenditure, where the purpose, object or foreseeable effect of the contribution or expenditure is to influence the election of International Officer candidates.”  Rules, Definitions, 22.  Independent committees are allowed to make contributions to candidates as long as they receive all of their monies from contributors who are permissible under the Rules.  Rules, Definitions, 17.  Independent committees must file CCERs in accordance with the Rules and the Advisory at 19.

The Election Officer finds that Ms. Salmeron exerted control over the Fund and therefore it was not an independent committee.  Ms. Salmeron participated in administering the accounts for the Fund.  She signed the CCERs for the Fund from October 1996 through January 1998 as the Fund’s treasurer, verifying that the CCERs accurately reflected the transactions and balances.  Ms. Salmeron tracked the contributors to the Fund after payroll deductions ceased.  She provided that information to Mr. Harren, the top administrator of the Fund, in written memorandum.  She repeatedly requested payment from late contributors at staff meetings and in private.  She also prepared checks from the Fund accounts for Mr. Harren’s signature. 

Gene Moriarty

April 27, 1998

Page 1

Virtually all of the money contributed to the B.A. Fund and the Fund went to Ms. Salmeron’s campaign and the Hoffa Campaign.  Indeed, Ms. Salmeron knew that the monies would go to her campaign because she directed the clerical staff to participate in the B.A. Fund in order to support her campaign.

IV.              Failure to Segregate Contributions Associated with the Initial Election:

The protester alleged that the Fund failed to segregate contributions associated with the initial election from those associated with the rerun election.

According to the Advisory, contributions from the initial election had to be segregated from ones made for the rerun election.  Advisory, at 16.  This included establishing a new bank account for contributions for the rerun election and submitting an affidavit and related bank records to establish that the contributions have been segregated.

The Fund failed to comply with these requirements.  They retained the bank account they opened in October 1996 which was used primarily for the initial election.  They failed to submit any verification of segregation of funds to the Election Officer. 

Accordingly, the protest is GRANTED.

V.              Remedy

The Rules provide that, upon determining a violation or the occurrence of any other conduct “which may prevent or has prevented a fair, honest, open and informed election,” the Election Officer may take appropriate remedial action.  Rules, Art. XIV, Sec. 4.  The provision reflects the Election Officer’s wide discretion to fashion remedies as necessary to promote and protect the integrity of the election process.  The enumerated remedies include, without limitation, “removing any nominee from the ballot” (id. Sec. 4(a)) and “disqualifying any member from seeking any . . . International Officer position.”  Id. Sec. 4(c). 

Under the Rules, coercion is considered so serious a violation that the Election Officer may remedy the conduct even if does not meet the “may have affected the outcome of the election” standard applicable to most post-election protests.  Id., Art. XIV, Sec. 3 (b).

Gene Moriarty

April 27, 1998

Page 1

The Election Officer has comprehensively reviewed the law concerning appropriate remedies for misconduct in labor union elections.  In re Cheatem, Post-27-EOH (KC) (November 17, 1997) at 60-64.  That decision holds that, while traditional labor law may limit the scope of remedies for union election violations, the union democracy imperatives embedded in the Consent Decree confer discretion on the Election Officer to impose any remedy necessary to eradicate completely the effect of a Rules violation.  Id. at 48-52.  Although the Election Officer has broad discretion, Cheatem properly recognized disqualification as an extraordinary “anti-democratic remedy” to be used as a last resort when the integrity of the electoral process could not be vindicated by lesser measures.  Id. at 53-54.  The use of the Consent Decree’s remedial authority to disqualify a candidate yields a “paradoxical” situation in which the electorate’s voting options are limited in order to promote democratic governance of the IBT.  See id. at 64.  Even a situation that justifies disqualification of a candidate for misconduct may vindicate anti-corruption objectives “to the evident impoverishment of the democratic process.”  Id. at 66.  Thus, both the unique facts underlying a substantiated Rules violation, and the particular context of the violation, are critical to the prudent exercise of the Election Officer’s remedial discretion. 

The Election Officer used the powerful remedy of disqualification in Cheatem because the facts in the investigation showed that Mr. Carey participated intentionally in a hidden, corrupt scheme for his personal benefit that also breached his fiduciary duty to the IBT membership:

[I]t is now apparent that Mr. Carey, the incumbent General President of the IBT, tolerated and engaged in extensive Rules violations in broad furtherance of his reelection campaign.  Specifically, Mr. Carey misused his union power in the court of the election by authorizing the expenditure of $735,000 in IBT general treasury fund to help his flagging campaign.  By authorizing the use of Union funds for his personal interest, Mr. Carey engaged in self-dealing and breach of trust of the rank and file of his Union.

Cheatem, at 69 (emphasis added).  “This breach of fiduciary duty, self-dealing at the expense of the IBT membership,” wrote the Election Officer, “constitutes one of the core types of misconduct the Consent Decree was designed to eliminate.”  Id. at 71 (emphasis added).  All of these elements made out an egregious offense that justified imposition of the strongest possible remedial measure. 

Thus, personal knowledge, intentional misconduct that directly undermines the Consent Decree, and abuse of official authority are the hallmarks of the disqualification remedy in Cheatem.  Here Ms. Salmeron’s conduct merits the remedy of disqualification to preserve the integrity of the election.  Ms. Salmeron coerced her subordinates into contributing to her campaign.  She coerced them in an atmosphere in which they perceived their “choice” as between  donating to the Salmeron Campaign, or risk loss of a long-awaited raise or other retaliation.  The Election Officer has repeatedly stated that the right to participate as one chooses in an election “necessarily implies and includes the right to refrain from campaigning.”  Hoffa, P-812-IBT-NY (Aug. 16, 1996) at 11.  Ms. Salmeron denied those she directly supervises the untrammeled right to participate as they choose in the democratic process, and used her position as a tool for the coercion.

Gene Moriarty

April 27, 1998

Page 1

Those who seek to hold office through the democratic process established under the Consent Decree cannot abuse the democratic process in the manner set forth here.  By doing so, Ms. Salmeron has forfeited the right to be a candidate.  Accordingly, Ms. Salmeron is disqualified as a candidate in the rerun election.

As the Fund no longer exists, and the Election Officer has ordered Ms. Salmeron disqualified as a candidate, no further remedy is ordered.

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

Regional Coordinators