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UNITED STATES v. INTERNATIONAL BHD. OF TEAMSTERS

August 22, 1995

UNITED STATES OF AMERICA, Plaintiff, -against- INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, et al., Defendants. IN RE: APPLICATION I OF THE ELECTION OFFICER


The opinion of the court was delivered by: DAVID N. EDELSTEIN

 EDELSTEIN, District Judge:

 This opinion emanates from the voluntary settlement of an action commenced by plaintiff United States of America ("the Government") against, inter alia, defendants International Brotherhood of Teamsters ("the IBT" or "the Union") and the IBT's General Executive Board. This settlement is embodied in the voluntary consent order entered on March 14, 1989 ("the Consent Decree"). The goal of the Consent Decree is to rid the IBT of the hideous influence of organized crime through a two-phased implementation of the Consent Decree's various remedial provisions. These provisions provided, in the first phase of the Consent Decree, for three court-appointed officials: the Independent Administrator to oversee the Consent Decree's provisions, the Investigations Officer to bring charges against corrupt IBT members, and the Election Officer to supervise the electoral process that led up to and included the 1991 election for International Union Office. In the second phase of the Consent Decree, the Independent Administrator was replaced by a three-member Independent Review Board. Further, paragraph 12(D)(ix) of the Consent Decree provides that "the union defendants consent to the Election Officer, at Government expense, to supervise the 1996 IBT Elections."

 Prior to the 1991 IBT election, the 1991 Election Officer, acting pursuant to Paragraph 12(D)(ix) of the Consent Decree, promulgated election rules, which were then presented for this Court's review by application of the Independent Administrator. The Consent Decree further provided that, during the 1991 IBT election process, in addition to applying to this Court for an order regarding the proposed election rules, it was the duty of the Independent Administrator to hear disputes about the conduct or results of the 1991 elections.

 The instant application, Election Officer Application I, presents for this Court's review the proposed rules for the 1995-96 IBT election for International Union delegates and officers. By Stipulation and Order dated February 7, 1995, the Consent Decree was amended to reflect the parties' agreement regarding the means of implementing Paragraph 12(D)(ix) of the Consent Decree, which pertains to supervision of the 1995-96 IBT election. See Stipulation & Order Implementing Paragraph 12(D)(ix) of the March 19, 1989 Consent Decree (S.D.N.Y. Feb. 7, 1995) ("the February 7, 1995 Order"). The February 7, 1995 Order states that "it is the intention of the Government and the IBT that the Election Officer function in 1996 as similarly as possible to the 1991 Election Officer," id. at 2, and it confers upon the Election Officer "all rights and duties conferred upon the 1991 Election Officer by paragraph 12 of the Consent Decree," id. P 1, including "the authority granted by Paragraph 12(I) of the Consent Decree to make applications to the Court, after giving notice to specified parties," id. P 3(c). The February 7, 1995 Order further provides for the appointment of an Election Appeals Master to hear disputes about the conduct of the 1995-96 IBT election or the results of that election. Id. P 2. During the 1991 IBT election, the Independent Administrator performed this function.

 Currently before this Court is Election Officer Application I, which presents for this Court's review the final set of proposed rules for the 1995-96 IBT election for International Union office. Approximately five years ago, this Court stood at a similar juncture in reviewing the proposed rules for the 1991 IBT elections. At that time I stated:

 
During the course of the implementation of this Consent Decree, this Court has been called upon to decide matters large and small. But of all the tasks put before it, no question is more central to the ultimate success of this Consent Decree than this proposed framework for the first fully democratic, secret ballot elections in the history of a union which has been the historic marionette of organized crime.

 July 10, 1990 Opinion & Order, 742 F. Supp. 94, 97 (S.D.N.Y. 1990), aff'd as modified, United States v. International Bhd. of Teamsters, 931 F.2d 177 (2d Cir. 1991). In the five years since that decision, many of the sinister forces that allowed the Union to be controlled by corruption have been despoiled. On the anvil of the IBT's first truly democratic election, a democratic Union began to take shape.

 It is of paramount importance that the same spirit of vigilance that vitalized the 1991 IBT election energize the 1995-96 IBT election process if the arduous and painstaking work of implementing the Consent Decree is to be preserved and built upon. It cannot be said too often that the minions of organized crime continue to haunt the IBT. These invidious enemies of union democracy continue to thrive with a perverse and persistent energy. Rank and file Teamsters will watch this election with the hope that the Union will continue to be free and democratic. They will constantly be asking themselves whether the Union truly belongs to them. It is not just their interests that are at stake: The American public as a whole will benefit when this union of more than 1.4 million members is freed from the clutches of organized gangsterism. Union corruption takes an enormous toll on its members and the public. The sociological and economic cost it levies on society and on commerce is incalculable.

 The importance of a free and democratic IBT election, and of the rules governing that election, cannot be exaggerated. The Consent Decree is "a unique attempt to cleanse this union" and the election rules "are the linchpin in that effort." Id. As I stated in reviewing the proposed rules for the 1991 IBT election, "this Court will only approve election rules that will guarantee honest, fair, and free elections completely secure from harassment, intimidation, coercion, hooliganism, threats, or any variant of these no matter under what guise." Id. Before examining in detail the proposed election rules and the objections to them, I must emphasize, once again, that the concept of fair, free, and honest elections

 
means more than just an honest ballot. Fair elections demand that IBT members are given a meaningful, uncoerced choice of candidates. Candidates must be freed of any hesitation about speaking openly on issues, including criticism of the incumbent IBT structure. Candidates must be fearlessly free to communicate those views to the membership. Members must be assured and given confidence that they need not fear to engage in untrammelled discussion.

 Id. The realization of these freedoms constitutes the election rules' core mission, a mission that is crucial to the fulfillment of the Consent Decree's goals.

 I. The Rules Promulgation Process

 Briefly stated, the Election Officer's duties consist of supervising the nominations and elections of Local Union delegates to the 1996 IBT Convention ("the Convention"), and the nominations and elections of International Union officers. The IBT election is a three-step process: (1) the nomination and election by each Local Union of a number of delegates to the Convention, (2) the nomination by the delegates at the Convention of candidates for International Union office, and (3) the election of International Union officers by direct, secret-ballot vote of the IBT membership.

 In December 1994, the Election Officer issued proposed rules for the upcoming 1995-96 IBT election and distributed copies of them to each Local Union, all other IBT subordinate bodies, and each member of the IBT General Executive Board. Moreover, copies of the proposed rules were made available to all IBT members who attended hearings on the proposed rules or requested copies. In addition, copies of the proposed rules were sent to the Government and to each of the approximately 130 employers that employs more than 1,000 IBT members. The Election Officer then conducted a series of hearings for IBT members and their representatives in eleven cities throughout the United States and Canada, for the purpose of soliciting comments on the proposed rules. The transcripts of these hearings were filed with the Court and are part of the public record. The Election Officer also solicited written comments on the rules, and sent a letter to each of the approximately 130 employers that employs more than 1,000 IBT members, identifying proposed rules of potential interest to employers. Furthermore, the Election Officer studied the recommendations contained in a three-volume review of the 1991 IBT election prepared by Michael H. Holland, who served as Election Officer for the 1991 IBT election. The Election Officer consulted extensively with Mr. Holland and with individuals who served as regional coordinators for Mr. Holland during the 1991 IBT election. The Election Officer also consulted with the IBT, the Government, and with representatives of the U.S. Department of Labor's Office of Labor-Management Standards.

 The final proposed rules for the 1995-96 IBT election are the result of this extensive effort to canvas and consult with all interested parties and to consider the lessons learned from the 1991 IBT election experience. The rules-promulgation procedures summarized above are closely similar to the rules-promulgation procedures used by the Election Officer during the 1991 IBT election process. See July 10, 1990 Opinion and Order, 742 F. Supp. at 98. Thus, the current Election Officer utilized rules-promulgation procedures that were familiar to the IBT, its membership, and its most significant employers. This Court is satisfied that the Election Officer afforded the IBT membership and subordinate entities, as well as other interested parties, ample opportunity to comment on these proposed rules and to participate in their development.

 II. The Final Proposed 1995-96 IBT Election Rules

 By application dated April 25, 1995, the Election Officer seeks this Court's approval of the final proposed 1995-96 IBT election rules. In her memorandum of law in support of Election Officer Application I, the Election Officer notes that the proposed rules for the 1995-96 IBT election "provide for [Election Officer] supervision of [the 1995-96 IBT election] in the 'expansive and proactive' sense" mandated by this Court during the 1991 IBT election. (Election Officer's Memorandum In Support Of 1995-96 Election Rules ("Election Officer's Memorandum") at 5 (citing October 18, 1989 Opinion & Order, 723 F. Supp. 203, 206 (S.D.N.Y. 1989), aff'd, 931 F.2d 177 (2d Cir. 1991).

 In its papers submitted in response to Election Officer Application I, the Government urges this Court to grant the application and adopt the proposed election rules in their entirety. In a five-page memorandum of law, the IBT notes that the Election Officer did not adopt all of its suggestions, but the IBT nevertheless concludes by urging this Court to adopt the proposed election rules in their entirety. (IBT's Response In Support of Election Officer's Application No. 1 For Order Approving Election Rules at 5.) IBT Local 1150 and IBT Local 890 each filed objections to the proposed election rules. In addition, in a four-page memorandum of law, Pepsi-Cola Company filed one objection to the proposed rules. Finally, Teamsters For A Democratic Union filed a brief that substantially supports the proposed rules but states one objection.

 In comprehensive reply papers, the Election Officer opposes each of these objections with the exception of the objection raised by Teamsters For A Democratic Union; in response to this particular objection, the Election Officer has amended the proposed rules to accommodate the concerns raised by this objection.

 For the purposes of analysis, the final proposed election rules for the 1995-96 IBT election may be divided into three groups: (1) proposed rules that parallel the election rules adopted during the 1991 IBT election and that have not been objected to; (2) proposed rules that modify the 1991 election rules and that have not been objected to; and (3) proposed rules that modify the 1991 election rules and that have been objected to. In addition, several objections to the proposed election rules concern proposed changes to the rules that the Election Officer rejected during the rules-promulgation process. Each of these matters is discussed in turn.

 1. Proposed Rules that Parallel the 1991 Election Rules and Have Not Been Objected To

 The salient feature of the proposed rules for the 1995-96 IBT election is the fact that they substantially parallel the 1991 IBT election rules. (See Election Officer's Memorandum at 5.) The election rules proposed in 1991 were adopted by this Court in an Opinion and Order dated July 10, 1990, which modified the rules in certain respects, most significantly to increase and expand the role of the Election Officer in supervising various aspects of the 1991 IBT election. See July 10, 1990 Opinion & Order, 742 F. Supp. at 106-08. This Court's decision was affirmed on appeal, subject to one additional modification of the rules concerning non-member aid to candidates to obtain accounting and legal services. See United States v. International Bhd. of Teamsters, 931 F.2d 177, 189.

 This Court is satisfied with those proposed rules for the 1995-96 IBT election that parallel the 1991 election rules and have not been objected to. Maintaining a set of election rules that is, for the most part, already familiar to the IBT, its membership, and IBT employers will facilitate the election process. Moreover, to the extent that the proposed rules parallel the 1991 IBT election rules, they have once already been subjected to the scrutiny of this Court and the Court of Appeals. Since there is no reason to believe that circumstances have changed, these same rules should govern the 1995-96 IBT election. Accordingly, this Court approves and adopts the first group of rules, i.e., those proposed rules that parallel the 1991 IBT election rules and that have not been objected to.

 It should be noted that the proposed rules provide for election of delegates to the IBT Convention by mail ballot, unless the Election Officer determines that there are compelling reasons for in-person balloting. This rule tracks the modification of the Consent Decree contained in the Opinion and Order of this Court dated January 11, 1995, which provides that "all direct rank-and-file voting by secret ballot . . . shall be by mail ballot in accordance with Department of Labor Regulations, except that the Election Officer may determine, in compelling circumstances, that delegate elections in the Local unions need not be conducted by mail ballot." January 11, 1995 Opinion & Order, 159 F.R.D. 437, 440 (S.D.N.Y. 1995). Although the Consent Decree previously provided for in-person balloting, this Court approved election rules that permitted Local Union delegates in the 1991 IBT election to be elected by mail-ballot voting, see July 10, 1990 Opinion & Order, 742 F. Supp. 94, and subsequently permitted mail-ballot voting in the 1991 election for International Union office. As a result of these court orders, the bulk of the balloting during the 1991 IBT elections was by mail. The Election Officer notes that mail-ballot voting reduces the possibility of voter intimidation or harassment and tends to increase membership participation in union elections. (Election Officer's Memorandum at 8.)

 2. Proposed Rules that Modify the 1991 Election Rules and That Have Not Been Objected To

 Although the proposed rules are substantially similar to those adopted during the 1991 IBT election process, the Election Officer has proposed some rules that modify the 1991 IBT election rules. While several of these proposed rules are the subject of objections, the majority of them are not. The modifications proposed by the Election Officer are a product of her review of the 1991 IBT election process and her consideration of the myriad comments submitted during the promulgation process that led to the instant application. For the most part, these modifications represent relatively minor adjustments to the election procedures that were used during the 1991 IBT election and reflect the lessons learned from that election. The following is a review of these changes and the reasoning that supports them.

 Three of the proposed modifications to which no objections have been filed affect the structure of the 1995-96 IBT election. First, in order to maximize participation in the 1995-96 IBT election by Local Unions that represent employees in the seasonal food industry, the proposed rules empower the Election Officer to direct that delegate elections in such Local Unions be held when seasonal employment is likely to be at a peak. The Election Officer plans to schedule these elections as close to the peak of the season as is consistent with the overall 1995-96 IBT election schedule.

 Second, the proposed rules provide that the number of Vice Presidents to be elected in each region shall be determined by the number of IBT members in that region, based on a calculation of the membership of each region to be conducted in September 1995. The election of regional Vice Presidents in the 1991 IBT election was governed by Paragraph 12(D)(iii) of the Consent Decree, which called for election of a specified number of Vice Presidents from each region. The election of regional Vice Presidents in the 1995-96 IBT election, by contrast, is governed by Article IV, Section 1(c) of the IBT Constitution, which provides that the number of Vice Presidents from each region is to be determined by reference to the number of members in that region.

 Third, the proposed rules provide that the general membership shall elect Trustees by direct, secret, mail balloting. In the 1991 IBT election, the delegates to the IBT Convention elected the Trustees. At the 1991 IBT Convention, however, the IBT Constitution was amended to provide for election of Trustees by direct, secret-ballot vote of all IBT members in good standing. Subsequently, by Order dated December 21, 1994, this Court amended the Consent Decree to provide for direct election of Trustees by the general membership in secret ballot voting. See December 21, 1994 Order (S.D.N.Y. 1994). Thus, the proposed modification tracks these amendments.

 Twelve of the proposed modifications to which no objections have been filed affect how the 1995-96 IBT election will be conducted. First, the proposed rules require each Local Union to provide the Election Officer with an original of each newsletter, newspaper, magazine, or other periodical made available to its membership after January 1, 1992. In addition, the proposed rules require the IBT and each subordinate or affiliated body to submit any such periodical literature published after January 1, 1992, to the Election Officer by September 30, 1995, and thereafter to submit any such periodical literature upon publication. The purpose of these requirements is to enhance the Election Officer's ability to obtain information and learn of developments that may be relevant to the 1995-96 IBT election process. (See Election Officer's Memorandum at 12.) Moreover, such materials may prove useful to the Election Officer in reviewing protests alleging unlawful use of Union publications. Id.

 Second, the proposed rules require Local Unions to send to each member, by first class mail to the last known home address, at least twenty-one days in advance, notice of any meeting at which nominations for delegates to the IBT Convention will be conducted. The Election Officer proposes this rule in order to eliminate the risk that a member might not see a notice published only in a union newspaper because that member either does not read the union newspaper in which the notice is published or reads the newspaper but fails to observe the notice. Furthermore, letters returned by the U.S. Postal Service will serve to notify the Union and the Election Officer early in the election process of addresses that need to be updated so that those members may receive ballots and other election-related mailings.

 Third, the proposed rules allow members to request, in advance of the meeting at which the nominations for delegates will be conducted, verification of their eligibility to be a candidate, to nominate a candidate, or to second a nomination. Such verification is to be provided by the Election Officer rather than the Local Union. The Election Officer observes that this proposed rule denies to incumbents who are considering running for delegate the unfair advantage of learning in advance the identity of their opposition. The proposed rule also reduces the possibility of coercion of would be candidates before the nominations meeting.

 Fourth, the proposed rules allow a Local Union member to nominate or second the nomination of a candidate for delegate in writing, and to submit such written nominations or seconds to the Election Officer directly rather than to the Local Union. During the 1991 IBT elections, written nominations were permitted only in limited circumstances. The Election Officer argues that allowing nominations and seconds by eligible members to be in writing, without any of the restrictions on written nominations and seconds contained in the 1991 election rules, and permitting these written nominations and seconds to be submitted to the Election Officer rather than the Local Union will reduce the possibility and the fear of physical intimidation of nominators or seconds at a nominations meeting. The Election Officer further argues that this proposed rule also levels the playing field by denying to incumbents who are considering running for delegate the advantage of learning in advance the identity of their opposition.

 Fifth, the proposed rules require each Local Union promptly to post on all Union bulletin boards a variety of election-related notices. These notices must be printed on neutral letterhead, devoid of the names of current officers or other staff members. The Election Officer states that the purpose of this proposed rule is to eliminate any unfair advantage to incumbents who are considering running for delegate and whose names would otherwise appear on the letterhead used for posting notices.

 Seventh, the proposed rules provide that candidates for delegate and candidates accredited or nominated for International Union office may inspect any collective bargaining agreement covering members of a Local Union and may obtain a list of work site locations of that Local Union's members. The Election Officer observes that information contained in a collective bargaining agreement may be relevant to the welfare of the Local Union that is involved in the agreement. Hence, a candidate running against an incumbent who helped to negotiate a particular bargaining agreement may legitimately wish to refer to that agreement in his campaign. Similarly, access to a list of work site locations of members of a particular Local Union is obviously useful to a candidate for delegate or for International Union office for purposes of campaigning.

 Eighth, the proposed rules require the IBT to comply with any reasonable request by a candidate for delegate or International Union office to mail campaign literature to Union members who are potential voters, at that candidate's expense, regardless of how early in the election process such a request is made. The Election Officer notes that early mailings enhance a candidate's ability to raise campaign funds and that the strategy regarding the timing and frequency of mailings is best left to the candidates themselves.

 Ninth, the proposed rules provide that a copy of the appropriate membership list may be released to accredited or nominated candidates for International Union office forty-five days in advance of the mailing out of ballots. The 1991 IBT election rules provided that such lists could only be released thirty days in advance of the mailing out of ballots. The Election Officer notes that membership lists are primarily useful to candidates for the purpose of telephoning the relevant membership pool to solicit support. The proposed rule affords candidates an additional fifteen days in which to use such lists for the purposes of campaigning.

 Tenth, the proposed rules provide that balloting for delegate elections at each Local Union may not begin sooner than thirty days after the final nominations meeting at that Local Union. The proposed rules also provide that the deadline for return of ballots may not be less than twenty-one days after the ballots are mailed. The Election Officer argues that these minimum time periods allow candidates a meaningful opportunity to campaign after the final nominations meeting, and prevent Local Unions from setting deadlines that effectively foreclose any meaningful period for campaigning after candidates have been nominated.

 Eleventh, the proposed rules prohibit campaign contributions from members who are also employers, except that such contributions are permitted when the contribution comes solely from the member as an individual and not from an entity that is an employer. As originally set forth in the final proposed election rules and the Election Officer's Memorandum, this rule simply prohibited contributions from members who are also employers. As such, the rule represented a modification of the 1991 election rules, which generally prohibited contributions by employers but permitted contributions by employers if they were IBT members. Subsequent to the adoption of the 1991 election rules, a U.S. district court in the District of Hawaii held that a contribution to promote a candidate for union office given by a member of an IBT Local Union who was also an employer violated LMRDA Section 401(g), 29 U.S.C. § 481(g). See Martin v. IBT Local 996, No. 89-00241, 1991 WL 346365 (D. Haw. Aug. 12, 1991). In light of the close similarity between LMRDA section 401(g) and the proposed rules, as well as the fact that the election-related provisions of the LMRDA are incorporated by reference into the proposed rules, the Election Officer initially determined that Martin v. IBT Local 996 required an election rule that prohibited contributions from members who are also employers.

 The proposed rule concerning contributions by employer-members was the subject of an objection by Teamsters For A Democratic Union, which argued that neither the Consent Decree nor the IBT Constitution prohibits members who are also employers from making campaign contributions. Moreover, Teamsters For A Democratic Union argued that Puma v. Sheet Metal Workers' International Association, Local Union No. 137, 862 F. Supp. 1077, 1081 (S.D.N.Y. 1994), Martin v. International Organization of Masters, Mates and Pilots, 786 F. Supp. 1230, 1237-38 (D. Md. 1992), and Myers v. Hoisting & Portable Local 513, International Union of Operating Engineers, 653 F. Supp. 500, 504 (E.D. Mo. 1987), each stand for the proposition that when an employer-member who contributes to a campaign for union office acts in his individual ...


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