Protest Decisions

              July 8, 1998

VIA UPS OVERNIGHT

Brad Swannie

July 8, 1998

Page 1

Brad Swannie

10823 85A Avenue

Delta, BC  V4C 2V2

CANADA

Garnet Zimmerman, President

Teamsters Local Union 31

1 Grosvenor Square

Delta, BC  V3M 5S1

CANADA

Tom Baldwin

6566 Hawthorne Drive

Windsor, ON  N8T 1J9

CANADA

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

Bradley T. Raymond, Esq.

Finkel, Whitefield, Selik,

  Raymond, Ferrara & Feldman

32300 Northwestern Highway

Suite 200

Farmington Hills, MI  48334

Brad Swannie

July 8, 1998

Page 1

Re:  Election Office Case No. PR-091-LU31-PNW

Gentlemen:

Brad Swannie, a member of Local Union 31, filed a pre-election protest on April 30, 1998, pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Local Union 31, Garnet Zimmerman, Tom Baldwin, and James P. Hoffa.  Mr. Hoffa is a candidate for general president.  Mr. Zimmerman is president of Local Union 31.  Both Mr. Baldwin and Mr. Zimmerman are candidates for International vice-president.

Brad Swannie

July 8, 1998

Page 1

The protester alleges that Mr. Zimmerman improperly used a Local Union 31 bulletin board to post two campaign leaflets and a press release supporting the candidacy of Mr. Hoffa.  Additionally, the protester alleges that 30 to 50 of these leaflets were made available on a counter near the bulletin board.  According to the protester, the use of the bulletin board and the nearby counter to display and distribute this campaign literature further constitutes “intimidation against members who may not be supporting Zimmerman or the Hoffa Slate.”  Finally, the protester alleges that Mr. Zimmerman and a member of his staff threatened him with retaliation after the protest was filed.

Mr. Zimmerman admits that two leaflets, but not the press release were tacked on the bulletin board for at least several days but contends that the posting occurred without his knowledge and that the material was removed immediately upon receipt of the protest.  Mr. Zimmerman denies that any piles of campaign literature were in the bulletin board area.  Alternatively, Mr. Zimmerman asserts that displaying the leaflets was not improper because the bulletin board is open to the membership for all general purposes including the posting of campaign literature.  Finally, Mr. Zimmerman asserts that the claim of retaliation is untimely.

The protest was investigated by Regional Coordinator Christine M. Mrak.

During April and May, the protester was using the Local Union 31 dispatch center daily.  The protester states that on April 28, 1998, he observed two leaflets, and a press release issued by Mr. Zimmerman  posted on the bulletin board in the dispatch area of Local Union 31.  The press release, which is dated April 27, 1998, is titled “Campaign Rally in Vancouver May 9th” and “Hoffa Cleared, Aiming at Top Teamsters Job.” The protester states that on the same date, he saw a pile of 30 to 50 “Hoffa Now” leaflets next to the sign-in sheet in the dispatch area. The leaflets announced the scheduled appearance of Mr. Hoffa at a cocktail reception and fundraising event planned for May 8 and 9, 1998, in Burnaby, British Columbia.  Mr. Baldwin and Mr. Zimmerman are also referenced in the leaflets.

Mr. Zimmerman’s contention that the two campaign leaflets were removed immediately upon receipt of the protest is corroborated by Jim Fairbrother, dispatcher at Local Union 31, who states that he was instructed (he cannot remember by whom) to look for and remove any posted campaign material.  He received this instruction on or about May 4, 1998, shortly after the local union received the protest.  Mr. Fairbrother further states that when he removed the protested items, he did not see a press release or any other campaign literature in the area.  He admits that additional campaign material could have been in the area at another time without his knowledge, because the sign-in sheet is constantly being moved around the dispatch area. He did not, however, observe such materials. Mr. Fairbrother contradicts Mr. Zimmerman’s claim that the bulletin board in the dispatch area has been used for general purposes. 

Brad Swannie

July 8, 1998

Page 1

There is no dispute that on May 11, 1998, an angry and profane exchange occurred between the protester and Mr. Zimmerman in the dispatch area.  Mr. Zimmerman stated that he specifically entered the dispatch area to confront the protester concerning two leaflets unrelated to the campaign material protested.  One leaflet criticized a decision issued by Don McGill, secretary - treasurer of Local Union 213, concerning the protester’s challenge to a local union election and accused Mr. Zimmerman of local “election misconduct.”  The other leaflet accused Mr. McGill of acts which, if true, could constitute violations of the IBT Constitution.  Although these leaflets are directed to matters occurring in the local union, both referred to Mr. McGill as a “Hoffa Stooge.”

During the encounter of May 11, Mr. Zimmerman accused the protester of writing and distributing the leaflets, an activity that the protester denied.  At some point, Mr. Fairbrother joined the heated discussion.  The protester claims that Mr. Fairbrother threatened that “[F]rom now on you’re gonna have trouble getting work.”  Mr. Fairbrother denies making the statement.

The relationship between the protester and Mr. Zimmerman has long been hostile.  The protester and Mr. Zimmerman have, in the past, been opposing candidates for local union office and Mr. Zimmerman has an active lawsuit pending against the protester for defamation.  See, Zimmerman, P-780-CAN-SCE (June 20, 1996) and Swannie, P-856-LU31-CAN (September 12, 1996).

Campaign activity within a union hall is not prohibited by the Rules.  Such activity may take place, so long as the Rules requiring equal access and opportunity to candidates are strictly observed.  Thus, Article VIII, Section 5(a)(4) states:

A Local Union shall not discriminate or permit discrimination in favor of or against any candidate in conjunction with its meetings or otherwise.  This requirement shall apply not only to formal presentations by or on behalf of candidates but also to informal campaign activities, such as, for example, comments on candidates during meetings, literature distribution at meetings, literature distribution tables, etc.

Similarly, Article VIII, Section 11(d) states that no restriction shall be placed upon a candidates’ or members’ preexisting right to use union bulletin boards for campaign publicity so long as “[s]uch facilities and opportunities [are] available to all candidates and members on a nondiscriminatory basis.”

The evidence fails to show that the bulletin board located in the dispatch area was open to the membership for general use.  The Election Officer therefore determines that the two campaign leaflets advertising Mr. Hoffa’s cocktail party and fundraiser were improperly posted.  The Election Officer finds that the posted material was removed on or about May 4, 1998, shortly after Local Union 31 received the protest. 

Brad Swannie

July 8, 1998

Page 1

The bulletin board postings violated the Rules at Article VIII, Section 5, regardless of whether any officer or employee had knowledge of the posting.  Williamson, PR-031-LU227-PNW (November 21, 1997), aff’d, 97 - Elec. App. - 334 (KC) (December 11, 1997); Schlim, P-970-LU124-MGN (October 7, 1996); Rules, Article XII, Section 1(b)(10).[1]

The Rules do not govern the protester’s claim of retaliation.  Despite the single use of Mr. Hoffa’s name on each flyer, the material which was the subject of the confrontation between the protester and Mr. Zimmerman (and the alleged retaliation) is not related to the rerun election.  The Rules apply only to the international election and the rerun.  The Election Officer therefore has no authority to resolve this aspect of the protest.  Kantrowitz, PR-033-LU705-NCE (December 16, 1997); Ryan, P-1149-LU150-CSF (November 21, 1996).

Accordingly, the protest is GRANTED as to the improper posting and display of campaign literature; and DENIED in all other respects.

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.  Timely removal of improperly displayed campaign material reduces the potential impact of the violation.  Hoffman, P-1050-LU817-NYC (October 28, 1996); Sweeney, P-1029-RCS-NYC et seq. (October 28, 1996).

Therefore, the Election Officer orders the following remedy:

1.  Local Union 31 shall cease and desist from making its facilities available to any candidate unless all candidates are provided equal access to such assistance and are advised in advance, in writing, of the availability of such assistance.

2.  Within one (1) day of receipt of this decision, Local Union 31 shall display the attached notice on the bulletin board where the flyers were displayed for a period of ten (10) days.

3.  Within four (4) days of receipt of this decision, Local Union 31 shall file an affidavit with the Election Officer detailing its compliance with this order.

Brad Swannie

July 8, 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, 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

Enclosure

cc:              Kenneth Conboy, Election Appeals Master

Christine M. Mrak, Regional Coordinator

NOTICE TO THE MEMBERS OF LOCAL UNION 31

AND CANDIDATES FOR INTERNATIONAL OFFICE

The Election Rules prohibit local unions from discriminating or permitting discrimination against any candidate for office in the 1995-1996 International Union officer rerun election in connection with distribution of campaign literature. 

Local Union 31 violated this provision by posting on its bulletin board (and making available in its office,) campaign literature supporting James P. Hoffa for general president.  Local Union 31 will cease and desist from this activity, unless all candidates for International office are provided equal access to make literature available at the local union office, and are advised in advance, of the availability of this access.

___________________________________

Garnet Zimmerman

President, Local Union 31

This is an official notice which must remain posted for ten (10) consecutive days and must not be defaced or altered in any manner or be covered with any other material.

Approved by Michael Cherkasky, IBT Election Officer.