April 7, 1998
VIA UPS OVERNIGHT
Ken Mee
April 7, 1998
Page 1
Ken Mee
42356 Greenbrier Park Drive
Fremont, CA 94538
Marty Frates, Business Rep.
Teamsters Local Union 70
70 Hegenberger Road
Oakland, CA 94621
Chuck Mack, Secretary-Treasurer
Teamsters Local Union 70
70 Hegenberger Road
Oakland, CA 94621
Hoffa-Mack Campaign
3295 Monika Lane
Hayward, CA 94541
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Ken Mee
April 7, 1998
Page 1
Re: Election Office Case No. PR-075-LU70-PNW
Gentlemen:
Ken Mee, a member of Local Union 287 and a candidate for Western Region vice-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 Marty Frates, a member of Local Union 70. Mr. Frates is employed by Local Union 70 as a business representative. Mr. Mee alleges that Mr. Frates wore a campaign-related hat and t-shirt while acting in his official capacity at grievance hearings. Mr. Frates admits to wearing the protested items but claims that he was unaware of his obligation to follow the Rules prohibiting such displays.
The protest was investigated by Regional Coordinator Christine R. Mrak.
Grievance hearings for some of those IBT members employed in the auto transport industry were held on March 12 and 13, 1998. The meetings are periodically scheduled by IBT affiliates and employers signatory to the national auto transport collective bargaining agreement to discuss unresolved contract grievances. Mr. Frates does not deny that he attended and actively participated in these meetings in his official capacity as a business representative of Local Union 70.
Ken Mee
April 7, 1998
Page 1
Chuck Mack, the secretary-treasurer of Local Union 70, is a candidate for International vice-president. Mr. Frates admits that, throughout these meetings, he wore a t-shirt and a hat which advocated political support for James P. Hoffa and Chuck Mack. Mr. Hoffa is a candidate for general president and Mr. Mack is a member of the Hoffa Slate. Without being specific, Mr. Frates further admits that he wore campaign-related clothing at previous meetings with employers.
The Rules at Article VIII, Section 11(a) and (b) provide that all IBT members have the right to participate in campaign activities, including the right “to openly support or oppose any candidate [and] to aid or campaign for any candidate.” The right specifically extends to members who also serve as officers or employees of local unions. While no member has the right to campaign on work time, the Rules protect the rights of members to wear campaign buttons, t-shirts or hats while working.
However, union officers, business agents or union employees may not wear campaign-related paraphernalia or clothing at meetings with unrelated third parties, including those activities at which collective bargaining occurs or grievances are resolved. See, Advisory on Wearing Campaign Buttons and Other Emblems (September 20, 1995) (“Advisory”). According to the Advisory, this restriction is based on the concern that the wearing of campaign “emblems” under such circumstances may inappropriately suggest support for particular candidates or groups of candidates by an IBT local union. The conduct of Mr. Frates specifically violates the Rules because it creates the improper implication that Local Union 70 supports Mr. Hoffa and Mr. Mack in the rerun election.
Accordingly, the protest is GRANTED.
When the Election Officer determines that the Rules have been violated, he “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.
This is not the first time Mr. Frates has violated the Rules by displaying campaign materials in a manner contrary to the Advisory. In Perras, P-1197-LU70-CSF (November 25, 1996), Mr. Frates was charged with violating the Rules by posting a “Hoffa/Mack” campaign poster on a wall outside a hotel room in which UPS grievance hearings were taking place. The protest was granted and Mr. Frates was ordered to cease and desist from all such activity. As to his activities on March 12 and 13, 1998, Mr. Frates does not point to any statement or other factual circumstances which may have mistakenly led him to believe that the Rules prohibiting such displays are not in force.
Ken Mee
April 7, 1998
Page 1
The Election Officer therefore directs as follows:
(1) Mr. Frates shall immediately cease and desist from wearing campaign-related clothing while engaged in activities with IBT employers or unrelated third parties. In addition, due to Mr. Frates’ prior violation, within three (3) days of receipt of this decision, Mr. Frates shall pay a fine of one hundred dollars ($100) by check or money order from his personal funds made payable to the Office of the Election Officer. Such fine shall be used to defray the costs of the rerun election. The Election Officer imposes this fine pursuant to his authority under Article XIV, Section 4 of the Rules to “take whatever remedial action is appropriate” after finding that the Rules have been violated. See Hoffa, P-770-LU743-EOH (June 21, 1996), aff’d, 96 - Elec. App. - 210 (KC) (July 11, 1996); Steger, P-827-IBT-EOH (September 3, 1996).[1]
(2) Local Union 70 shall post the attached “Notice to Local Union 70 Members” on all bulletin boards at the local union for a period of 30 days from the date of this decision. Within one (1) day of completing such posting, Local Union 70 shall file an affidavit with the Election Officer describing its compliance with this order.
Ken Mee
April 7, 1998
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 (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, 400 North Capitol Street, NW, Suite 855, 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
Enclosure
cc: Kenneth Conboy, Election Appeals Master
Christine R. Mrak, Regional Coordinator
Notice To Members of Local Union 70
The Election Officer has determined that Marty Frates, a Local Union 70 business agent, has violated the Election Rules by wearing campaign-related clothing during meetings attended by employers or other third parties and at which union business was conducted.
All local union members have the right to support candidates of their choice as set forth in the Election Rules, without fear of retaliation or intimidation. Union officials may not wear campaign-related paraphernalia or clothing at meetings with unrelated third parties, including collective bargaining and grievance meetings. Local Union 70 does not support or oppose any particular candidates or groups of candidates for International office in the rerun election.
_________________________ ___________________________________
Date Michael G. Cherkasky
Election Officer
This is an official notice which must remain posted for 30 consecutive days and must not be defaced or altered in any manner or be covered with any other material.
[1] As the Election Officer stated in Hoffa,
The Election Officer acts on behalf of the IBT pursuant to the IBT's agreement through the Consent Decree. See United States v. IBT ("1991 Election Rules Order"), 742 F. Supp. 94, 105-06 (S.D.N.Y. 1990) (“the Election Officer’s authority and hence [the election] rules arise under power reserved for the IBT under its Constitution”), aff’d as modified (931 F.2d 177 (2d Cir. 1991); United States v. IBT (“Star Market”), 954 F.2d 801, 806-07 (2d Cir.) (action of 1991 Election Officer, subsequently affirmed by Independent Administrator, was taken pursuant to the IBT Constitution), cert. denied, 505 U.S. 1205 (1992). In choosing a fine as an appropriate remedy for this type of violation, the Election Officer notes that fines are expressly authorized as one remedy for violations of the IBT Constitution, Article XIX, Section 10(a), and the use of fines by the Election Officer is thus in keeping with the practices and usages of the union. The Election Officer further notes that fines are included within the scope of remedies for proscribed behavior in the Federal Election Campaign Act (2 U.S.C. § 437g) and the Labor-Management Reporting and Disclosure Act, as amended (29 U.S.C. §§ 501(b), 502, 504). A fine in this amount should serve as an effective deterrent for future violations . . . .