November 25, 1998
VIA FIRST CLASS MAIL
David Holley
November 25, 1998
Page 1
David Holley
562 Vanderbilt Drive
New Lenox, IL 60451
AFSCME Council 31
29 N. Wacker Drive
Chicago, IL 60606
Hoffa Slate
c/o Patrick J. Szymanski, Esq.
Baptiste & Wilder
1150 Connecticut Avenue, NW
Suite 500
Washington, DC 20036
Arthur Z. Schwartz, Esq.
Kennedy, Schwartz & Cure
113 University Place
New York, NY 10003
Gerald Zero, Sec.-Treas.
Teamsters Local Union 705
1645 W. Jackson Boulevard
Chicago, IL 60612
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
David Holley
November 25, 1998
Page 1
Re: Election Office Case No. PR-393-LU705-NCE
Gentlemen:
David Holley, a member of Local Union 705, 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 AFSCME District Council 31, Gerald Zero, secretary-treasurer of Local Union 705 and the Leedham Campaign. The protester alleges that AFSCME is providing a telephone banking facility to the Leedham Campaign at below market rates and has declined to make the facility available to the Hoffa Campaign. The protester additionally alleges that Local Union 705 provided the Leedham Campaign with a telephone list segregated by employer, despite advising the Hoffa Campaign that it cannot provide such a list.
David Holley
November 25, 1998
Page 1
The Leedham Campaign responds that Local Union 705 has not provided any list to its campaign in Chicago; a list was compiled through a network of stewards and other activists in Chicago. The Leedham Campaign additionally states that the rate charged by AFSCME is the same as that found reasonable by the Election Officer in the 1996 election, and by the Local Union 705 Election Officer and the U.S. Department of Labor in the 1995 and 1997 local union officer elections.
AFSCME responds that the charges are reasonable and that the agreement is similar to that examined by the Election Officer in 1996.
This protest was investigated by Regional Coordinator Judith E. Kuhn.
The protester states that during a weekend in early November, he answered a telephone call from the Leedham Campaign asking to speak to the protester’s son, who is a member of Local Union 705 and a part-time driver for United Parcel Service (“UPS”). The protester has caller ID which indicated that the call originated from AFSCME District Council 31 in Chicago. The protest did not receive a call, only his son did. The protester assumes that because he and his son have the same last name, they should be next to each other on the membership list. Therefore, the protester alleges that the Leedham Campaign has a list which targets UPS employees, which it must have obtained from Local Union 705. The protester states that
Local Union 705 previously denied a request from the Hoffa Campaign for a list segregated by employer. Local Union 705 advised the Hoffa Campaign that it does not maintain that information. The protester also alleges, although he presented no evidence, that AFSCME is permitting the Leedham Campaign to use it telephone banking facilities at below-market value, while denying this opportunity to the Hoffa Campaign.
Richard DeVries, a Local Union 705 member who is active in the Leedham Campaign, states that the list for telephone banking was not compiled through any formal membership list, but was compiled by the Leedham Campaign through an extensive network of UPS stewards and activists. The Leedham Campaign in Chicago has solicited small donations from members, and has obtained telephone numbers from the donation envelopes, as well as from each steward asking the employees on his or her shift for their name and telephone number. The Leedham Campaign’s telephone list now includes over 3,000 names gathered in this fashion. According to Mr. DeVries, the protester was not called because he is a known supporter of Mr. Hoffa.
The Leedham Campaign is renting an 846 square foot conference room for telephone banking from AFSCME. The room has several telephone jacks and is rented to the campaign with the understanding that the campaign can be bumped at any time by AFSCME staff, which has prior claim to the room. The room has been used for telephone banking on two Sundays for six to eight hours on each day, one Saturday for six to eight hours, and one evening for a total of three to four hours. Therefore, according to Mr. DeVries, the campaign has used the conference room for less than 24 hours.
David Holley
November 25, 1998
Page 1
The rental agreement between AFSCME and the Leedham Campaign indicates that the campaign is paying a flat fee of $100 for the room, plus the cost of telephone usage. AFSCME pays $24 per square foot per year from the room or $20,304 annually, which is approximately $2.32 for each of the 8,760 hours in a year. The Leedham Campaign has paid $100 for approximately 24 hours of usage, equally a rate of approximately $4.17 per hour for a “stand-by” room reservation. Henry Bayer, director of AFSCME District Council 31 stated that he had previously had the same arrangement for telephone bank usage which was approved by the U.S. Department of Labor in the Local Union 705 officers election. He also charged the same amount to the Braun for U.S. Senate Campaign at the Springfield office of AFSCME.
The Election Officer has consistently approved the purchase or lease of employer or union telephone facilities for phone-bank campaigning on payment of fair-market value. See, e.g., Merritt, P-1162-IBT-PNJ et seq. (Nov. 12, 1996) (use of telephones in state senator’s reelection office); Tiboni, P-1155-JC41-CLE (Nov. 14, 1996) (use of telephones in conference rooms in building ultimately controlled by partners in law firm); Cook, P-337-LU705-CHI et seq. (May 8, 1996) (use of AFSCME telephones for phone bank operation), aff’d, 96 - Elec. App. - 191 (KC) (May 17, 1996); Carter, P-457-LU550-NYC (1991). However, the Rules prohibiting in-kind contributions are violated when such facilities are used by a campaign without the required payment. See, Advisory on Campaign Contributions and Disclosure (“Advisory”) (December 14, 1995, as revised November 1997). The purchase of goods or services by a candidate constitutes a campaign contribution by the vendor unless the terms of use are commercially reasonable. Based upon the rate charged, and the fact that the same rate has previously been charged, the Election Officer finds that the payment of $100 plus telephone usage costs constitutes fair market value in compliance with the Rules. See Heiman, PR-350-LU41-EOH (November 4, 1998).
As to the protester’s contention that AFSCME did not offer the same terms to the Hoffa Campaign, this is not a violation of the Rules. As the Election Officer previously stated,
Article XII, Section 1(b)(3) of the Rules requires an IBT affiliate who provides goods or services to candidates at fair-market value to provide the same goods and services at the same price to all other relevant candidates. This section does not, however, apply to labor organizations not affiliated with the IBT, such as AFSCME. In addition, while Article XII Section 1(b)(1) forbids candidates from receiving campaign contributions from employers and labor organizations, nothing in the Rules prohibits campaign organizations from purchasing the use of employer or labor organization facilities.
See Cook, supra at 17.
David Holley
November 25, 1998
Page 1
Finally, the protester’s contention that the membership list was provided by Local
Union 705 is without merit. The protester provided no evidence to support this contention. The collection of names and telephone numbers by campaign activists does not violate the Rules.
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
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
cc: Kenneth Conboy, Election Appeals Master
Judith E. Kuhn, Regional Coordinator