IN RE: PHILLIP RUSHING,
Protest Decision 2000 EAD 51
Issued: November 28, 2000
OEA Case No. PR092201NA
Phillip Rushing, a member of Local 439, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules")against the Hoffa 2001 Unity Slate and the IBT. The protestor alleges that:
· During the September, 2000 IBT "Unity Conference" in Las Vegas, two Hoffa campaign leaflets ("Join Jim Hoffa and Friends for the Kickoff of the 2001 Campaign," and "Please Join the General Executive Board in giving Rev. [Jesse] Jackson a powerful Teamster welcome...,") were distributed outside the doors of hotel rooms in which Teamster members were staying, using IBT resources.
· The identification of the IBT conference as the "Unity Conference" constitutes an expenditure of IBT funds to promote the Hoffa 2001 Unity Slate (the "Unity Slate") because of the identity of nomenclature between the conference and the Unity Slate.
· The IBT-funded registration packet for the "Unity Conference" contained materials that served as IBT-funded Unity Slate campaign materials, such as biographies of Hoffa and Keegel, a "Unity" bumper sticker and the repetitive use of the "Unity" slogan.
· Rev. Jesse Jackson spoke at the Unity Conference on the theme of "Unity," and raised Hoffa's and Keegel's hands high over their heads in a sign of "victory", which constitutes a political endorsement of their campaign at IBT expense and during an IBT function.
The IBT and the Unity Slate deny that a violation of the Rules occurred. They assert that:
· The "Jesse Jackson" flyer was not "political," and was properly distributed at IBT expense.
· The "campaign kickoff" flyer was not created or disseminated using IBT labor or resources, and there was no coordination regarding the distribution of the two flyers.
· Bally's distributed both flyers to any guest who had registered under the IBT discount plan.
· The concept of "Unity" is not solely identified with the Hoffa-Keegel Campaign, and its use by the IBT in association with the Las Vegas conference is not a violation of the Rules.
· Neither the "Unity" theme, nor the conference materials promoted the Hoffa Slate.
· Rev. Jesse Jackson's appearance was on behalf of the Gore-Lieberman/Democratic candidates endorsed by the IBT, and cannot be construed as an endorsement of the Hoffa Slate.
Election Administrator representative William W. Thompson II investigated the protest.
Provisions of the Rules Alleged to be Violated
Several provisions of the Rules have been invoked by the protestor in support of his claims. They include the following:
· Article VII(7)(c): "Each candidate shall pay, on a reasonable basis, for the actual cost of [campaign material] distribution, including stationery, duplication, time required to do the work...."
· Article VII(8)(a): "No ... communication financed, directly or indirectly, by a Union may be used to support ... any candidate or the candidacy of any person, except as authorized by Sections 8 and 9 of this Article."
· Article VII(11)(a) and (b): "No candidate ... may campaign during his/her working hours....[C]ampaigning must not involve the expenditure of Union funds. Accordingly, officers and employees (and other members) of the Union may not campaign on time that is paid for by the Union."
· Article VII(11)(c): "Union funds, facilities, equipment, stationery, personnel, etc. may not be used to assist in campaigning unless the Union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance."
· Article XI(1)(b)(2): "No employer may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is influence, positively or negatively, the election of a candidate. No candidate may accept or use any such contribution. These prohibitions are not limited to employers that have contracts with the Union; they extend to every employer, regardless of the nature of the business and include, but are not limited to, any political action organization that employs any staff; any nonprofit organization, such as a church or civic group that employs any staff; and any law firm or professional organization that employs any staff. These prohibitions extend beyond strictly monetary contributions made by an employer and include contributions or use of employer stationery, equipment, facilities and personnel."
· Article XI(1)(b)(6): "No Union funds or other things of value shall be used, directly or indirectly, to promote the candidacy of any individual. Union funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in campaigns unless the Union is compensated at fair market value for such assistance, and unless all candidates are provided with equal access to such assistance and are advised in advance, in writing, of the availability of such assistance."
· Article XI(1)(b)(7): "No member may campaign for him/herself or for any other candidate during time that is paid for by the Union...."
Findings of Facts
The Unity Conference. On September 18 through 20, 2000 the IBT convened a "Teamsters Unity Conference" at Bally's-Paris Las Vegas Hotel in Las Vegas, Nevada. The avowed purpose of the conference was "to continue the process of restoring Teamster unity as we approach the November [2000] general election.... Along with the GEB meeting, we will hold a two day meeting on September 18th and 19th with regard to Teamster Political Action for the New Millennium where we will develop our strategies for November and for the expansion of the size and influence of our DRIVE program." Memo of 6/13/00 from James P. Hoffa to all IBT officers nationwide.
During the same week in which the Unity Conference took place, in addition to a General Executive Board meeting, a number of other Teamster convocations took place, including national grievance sessions, divisional meetings, and a presentation by the Election Administrator. Varying numbers of rooms were booked each day during that week using the IBT group rate made available by Bally's. Payment for rooms obtained through the IBT arrangement were made directly to Bally's by participants, and could originate from IBT funds, the funds of any subunit, or local affiliate of the Union, or individual.
According to IBT Special Events Manager Cheryl Johnson, the "Unity" theme for the conference resulted from a planning process which included at various points Johnson, Chuck Harple (Director of Political Affairs), lobbyist Christie Bailey, Government Affairs Director Mike Mathis, and General President Hoffa. The participants decided that the "unity" theme was a good one because, in their view, the Union's disarray was over, that "everybody" now has a place in the Union - and the terms "union" and "unity" convey the same idea.
The materials handed out to Unity Conference participants consisted of 2 manila folders. One (blue) is entitled "Teamsters: Unity-Pride-Strength" and includes the IBT logo, as well as information regarding the staff of the IBT Communications Department. The other (white) folder has a sticker pasted on the front with the American flag, and "The Voice of American Labor - Teamsters Vote 2000."
Inside the blue folder were a copy of the "Teamster Women's News," "Teamster Freight News," "Teamster Port News," a generic, descriptive "The Teamsters" handout, a copy of "The Teamster" magazine, a handout describing the IBT website, and two glossy one page biographies of Hoffa and Keegel.
The two biographies give the subjects' histories in the IBT, include full color photos, and include a highly complimentary description of the accomplishments and goals of each general officer. The biographies include no reference to the candidacy for re-election of either individual, or the forthcoming IBT election.
Inside the white folder were The Agenda for the Unity Conference, a folder describing DRIVE (the Teamster political action fund), with pictures including Hoffa and Keegel leading a march, the IBT booklet "Political Action Guide - Election 2000" which includes a "Message" from Hoffa, a copy of an advance press release regarding the address delivered by Rev. Jesse Jackson, several "issue" sheets supporting the IBT endorsement of Gore over Bush, a sampling of stickers including several versions of the folder's cover sticker, and "Teamsters for Gore," and a sticker order form.
While the Unity Conference Agenda includes all Union-sponsored meetings of any nature that took place during the entire week of September 17-23, the conference sessions with the most direct connection to U.S. national politics took place on Monday, September 18, and Tuesday, September 19. The principal subjects addressed during those two days included: "Political Action for the New Millennium," "National Political Scene," "Teamster Members and Politics," "Teamsters and Legislative Issues," and "Politics and Local Unions."
Speakers at these sessions included, in addition to the Teamster leadership, House Minority Leader Dick Gephardt, House Minority Whip David Bonior, Transportation Secretary Rodney Slater, Al Gore, and Rev. Jesse Jackson.
The morning of September 19 included a five minute video touting secretary-treasurer Keegel's devotion to the IBT and his activities as a successful fiscal steward of the Union's resources.[1] Keegel then spoke about how the present IBT administration has rectified the fiscal irresponsibility it inherited, and how the IBT has to "take our government back like we took our union back."
Keegel then introduced Hoffa. Jesse Jackson, by now on the podium, then grasped the hands of both Hoffa and Keegel and raised them overhead. In response, the crowd began to chant "Hoffa! Hoffa!" Hoffa then introduced Rev. Jackson. Jackson responded with a second raising of Hoffa's and Keegel's hands.
Rev. Jackson's speech (which we have reviewed on videotape) began by reminiscing that the Teamsters go "all the way back" with the civil rights movement. He stated that the first money in support for Rosa Parks came from Hoffa's father, and that, consequently, the civil rights movement stuck by the IBT when Jackie Presser was under attack. The second theme in Jackson's speech revolved around the fact that the 2000 national election would be close. He stated that the Teamsters and their families are millions strong, and that they could make the difference in the Gore-Bush race. Toward the end of his speech, Jackson reached a dramatic conclusion included passages such as:
Keep your Teamster family united.... Nothing will break up Teamster unity ever again.... No Teamsters are safe until all are safe.... You've been through darkness, morning is coming.... It's healing time, it's Teamster time.
Jackson was identified to the Conference as leader of the "Rainbow PUSH Coalition." He was the last major speaker before the end of the "political" proceedings of the Unity Conference. Jackson left Las Vegas shortly after his speech concluded at mid-day on the 19th.
The IBT submitted various documents to the investigator predating the Hoffa-Keegel administration that reference the theme of Teamster "unity." These documents include references in The Teamster magazine, and in other IBT material published by the Carey administration, to the "unity" and "united" themes. In addition, the Election Administrator is well aware that themes such as "Unity" and "Solidarity" are common trade union themes.
The Jackson and Unity Slate Leaflets. The Unity Slate sponsored a "Kickoff" event at 6:00 p.m. on the evening of September 19 in Bally's Pacific Ballroom. This event is not referenced in the Unity Conference agenda. At the time of the Kickoff, one other meeting was scheduled: "4:00 pm - 8:00 pm Freight Officer Coordinators Meeting." The kickoff reception required a contribution of $100.00 at the door, and included food and a cash bar.
The IBT official in charge of the arrangements, logistics, and operation of the Unity Conference was Assistant to the General President and Special Events Director Cheryl Johnson. Johnson is also the Director of the IBT Human Rights Commission. In that capacity, she addressed the Unity Conference on the 18th regarding the "Teamsters Human Rights Commission and Politics."[2]
According to Johnson, IBT Western Regional VP Jim Santangelo (a Unity Slate candidate) arranged to obtain the Pacific Ballroom for the Kickoff. Johnson, who had essentially "locked up" most of Bally's facilities for the week, was contacted before the Unity Conference by Bally's Convention Services Manager Teresa Lugowski regarding Santangelo's request for the room. Johnson told Lugowski that the campaign could have it. Johnson states she had no direct communication with anybody from the campaign regarding the use of the ballroom. IBT funds were not used to pay for the rental of the Pacific ballroom for the campaign event.
Johnson had a "headquarters" room and staff at Bally's to operate the Conference. Early in the proceedings, one of the IBT staffers raised a concern about the fact that many attendees may be leaving before Jackson's scheduled speech on Tuesday. Consequently, on the 18th, Johnson went to Carlow Scalf, Hoffa's principal assistant and advised him of this concern. The decision was made to distribute a leaflet encouraging people to attend Jackson's speech in order to avoid an embarrassingly sparse turnout.
Johnson's on-site secretary created the text of the Jackson leaflet, which reads as follows:
TO: All Teamster Unity Conference Participants
FROM: General President James P. Hoffa
DATE: September 18, 2000
RE: Tuesday, September 19th Unity Mtg.
It is important that all attend the Unity Conference meeting Tuesday Morning from 9 AM to 12 PM.
We will be joined by Reverend Jesse Jackson who will speak to us about the November elections and the importance of increasing our solidarity and activism.
Please join the General Executive Board in giving Rev. Jackson a powerful Teamster welcome.
Please remember that you must register each day of the Conference before it begins.
After the Jackson leaflet was prepared, Johnson made copying and distribution arrangements with Lugowski, so that the leaflet could be delivered to the rooms of all attendees at the Unity Conference. The copies were made using IBT paper and a Bally's photocopier. Bally's did not charge for the copying. Lugowski at first indicated that the delivery to all rooms occupied by conference attendees would cost $1.00 or more per delivery. A brief discussion resulted in a discounted charge of $.55 per delivery. According to Lugowski, this rate merely defrayed the labor cost and was provided to the IBT as a courtesy, given their status as a significant customer. The proper billing account for the Jackson leaflet, according to Johnson, was the IBT master account at Bally's, "BBITW."
A second leaflet concerning the Unity Slate's "Kickoff" event was distributed with the Jackson leaflet by Bally's staff. The creation and dissemination of the kickoff leaflet was principally the responsibility of Todd Thompson. Thompson is a full time Field Coordinator in the IBT Political Department. He reports to Political Director John Mathis. Thompson has held this position for approximately one and one-half years.
In 1996 and 1998, Thompson assisted in the Hoffa campaign as an unpaid volunteer. At present, he is the volunteer national campaign manager for the Unity Slate campaign. According to Thompson, he is able to maintain his full-time IBT job while doing campaign activities on "his own" time. This was true, says Thompson, regarding the time he spent preparing and arranging for the dissemination of the Kickoff leaflet.
Thompson participated in the planning for the Unity Conference as an IBT political staffer. He made a presentation to the conference September 19 regarding the National Field Plan for political mobilization of locals. On September 21 and 22, Thompson also gave two political action workshops at the conference.
While in Las Vegas for the Unity Conference, Thompson also performed campaign related work. According to Thompson, the planning for the Unity Slate Kickoff event was led by the Santangelo campaign people in California. Thompson stated that the campaign's planning activities occurred before Thompson came to Las Vegas, and that he participated in them from a Hoffa campaign office at 209 Pennsylvania Ave., S.E., in Washington, D.C. Thompson also stated that before his arrival in Vegas he gave Lugowski the campaign's VISA card number so that the campaign would be charged for campaign expenditures at Bally's.
Before Thompson went to Vegas, he asked Santangelo's campaign workers in California to give him the text of a leaflet advertising the Kickoff Event, which was then e-mailed to him. The text came from "Arlene," a campaign official in California. Since Thompson was already aware that it was possible to arrange for distribution of material to rooms in Bally's, he suggested the room-drop method for distribution of the leaflet.
Thompson recalls arriving in Vegas on Friday evening, September 15. On Sunday, September 17, he tracked down campaign official "Arlene," talked with her, and decided to do the room drop. During a period in which he was not on "IBT time" that day, Thompson went down the street from the hotel to Kinko's and had the leaflet photocopied. The Kinko's invoice indicates that the photocopies were paid for with a Hoffa-Keegel campaign credit card.
After he made these copies, Thompson then brought the stack of leaflets to the Bally's bellman at his desk. He asked if the hotel could distribute the leaflets before people got up on Monday morning, and was told that this would be done. No cost was indicated, according to Thompson. However, at another point in his initial interview, Thompson indicated that he did talk to Teresa Lugowski about how to go about distributing the leaflets. According to Thompson, Lugowski told him to arrange it through the bellmen, and indicated that the cost would be $1.00 per delivery. When Thompson asked if the delivery could be done for less, Lugowski checked and later told Thompson that the cost would be $.55. Thompson did not speak to Lugowski after that. According to Lugowski, the discounted $.55 delivery charge was made available to the campaign because of the "Hoffa relationship."
According to Thompson, Bally's agreed to bill the Hoffa campaign separately for the distribution of the Kickoff leaflet, as well as the campaign's other expenses during Unity Conference week at Bally's. The "revised order form" for the distribution of the Kickoff leaflet signed by Lugowski and initially provided by Bally's has a date of "9/17." That "revised" form indicates that the Kickoff leaflet was delivered on two days - Monday and Tuesday, for a total cost of $990.00 at the discounted delivery rate of $.55.
According to IBT Special Events coordinator Johnson, the only knowledge she had of the Kickoff leaflet on September 18 or 19 was the fact that she found one outside her door together with the Jesse Jackson leaflet. She claims that she had no contemporaneous knowledge of or involvement with the creation or dissemination of the Kickoff leaflet.
Bally's ultimately supplied a number of additional documents related to the charges for the two leaflets at issue in this case. As we have noted, the "order form" written and signed by Lugowski for the 2-day distribution of the kickoff leaflet is marked "revised." The payment information at the bottom of the order form includes both "Master Account BBITW - (1) item," and "CC# xxxx-xxxx-xxxx-xxxx Exp. 7/02. Todd Thompson."[3]
Another, apparently earlier version of the aforementioned "order form" was provided by Tom Ray, the Bellman supervisor who supervised the actual distribution of all the leaflets. It shows the 2-day distribution only, but also only references the Kickoff leaflet, and only shows billing to "Master Account BBITW," and a notation initialed by Ray. "Pd 9-18." This appears to be internally contradictory information. As for the "paid" notation, Ray states that this merely means that the billing department was given the charge on Monday, September 18.
Yet another "order form," dated "10-2-00" references one distribution on "Tuesday, 9/19-00" for a total charge of $541.20, in a handwriting other than Lugowski's, except that Lugowski signed it on "10-2-00" and filled in the payment information as "Master Acct. BBITW." This form appears to reference the Jackson leaflet.
Consequently, these three order forms suggest that the initial understanding by Lugowski was that the two days of Kickoff leaflet deliveries were being paid directly by the IBT. On some later date unknown, Lugowski revised that order form to reflect one distribution of an IBT leaflet, and two distributions of the Kickoff leaflet. On October 2, 2000, (after this protest was filed), still another order form was prepared by an unknown person, but signed by Lugowski again recording one distribution of the Jackson leaflet on Tuesday, September 19th, paid via "Master Account BBITW."
Bally's supervisor Tom Ray also supplied four "Bellman Group Gratuities" forms that are generated by his office. These documents record what was ordered, as well as the pay information for each individual bellman who assisted in the distribution. Attached to two of these forms are "Bellman Tip" slips that separately record the "order" information.
The earliest "Gratuities" form is dated "9/18/00," with a billing account of "BBITW." However, the item ordered is described as "outside room delivery of 2001 flyer." Tom Ray confirms that the "2001 flyer" is the Kickoff flyer for the Hoffa 2001 campaign. The attached Bellman Tip slip reflects the same information, with a delivery date of "9-18-2000."
The second form is dated "9/20/00," references the group as the IBT, and describes the service ordered as "outside room delivery 2 items (flyers), but without a service date(s). Attached to the second form is a tip slip, which describes that the IBT ordered an "outside room delivery on 9-19-00 2 flyers," also with the charge being to "BBITW."
The third form is dated "10/12/00" and indicates the group ordering the delivery is "Santangelo/2001," and "paid by: Todd Thompson VISA # xxxx xxxx xxxx xxxx Exp. 7/02." The delivery date is "9/18," and the flyer is unidentified.
The fourth form is also dated "10/12/00," also references the group as "Santangelo/2001," and payment via the same "Thompson" VISA card. However, this form references delivery of an unidentified flyer on "9/19/00."
The gratuity forms suggest that Bally's originally understood that the distribution of the Kickoff campaign flyer on Monday, September 18 was to be paid for by the IBT. As of Wednesday, September 20, Bally's understood that the delivery of both the Jesse Jackson flyer and the Kickoff flyer on Tuesday, September 19, was also to be paid for by the IBT.
Approximately 3 weeks later, after this protest had been filed and served, Bally's apparently changed the "group" for the delivery of the Kickoff flyer on Monday the September 18 from the IBT to the Unity Slate VISA card. Similarly, that day, Bally's also changed the charge for one of the deliveries on Tuesday the 19 from the IBT to the Unity Slate VISA card.
In our investigator's repeated conversations with Lugowski, Ray, Johnson, and Thompson, they insisted that no one explicitly or implicitly suggested to anyone that the Kickoff leaflet be paid for by the IBT. Bally's manager Lugowski states that she accepts principal responsibility for the invoicing mistakes, because she failed to appreciate the distinction between the entities of the IBT and the Hoffa campaign until Cheryl Johnson brought it to her attention after the initial paperwork had been generated.[4]
Analysis
1. We cannot find that the use of the term "Unity" in the name of the September 2000 political action conference and in the material included in the conference packets identifies the Conference with Hoffa's "Unity Slate." The use of the concept or goal of "unity" and/or "solidarity" is ubiquitous in union publications and motivational materials. The word "unity" in fact shares the same root with the word "union." And union political endorsements, such as those that were at the center of the Unity Conference, highlight the trade union concept of a "unified" membership approach to matters of concern to the union, such as the election of national political leaders.
Moreover, the term "unity" and related terms have been used in the IBT by both pro and anti-Hoffa forces in recent times. During the Carey administration, for example, IBT publications consistently iterated that "[u]nity is key to a strong contract;" "[u]nited we stand;" "[u]nite to fight for the future;" and "[n]ow showing: Teamster unity." Unity is simply a basic element of the trade union lexicon.
Nevertheless, prior election officer decisions teach that the use of slogans adopted by a campaign can constitute forbidden union endorsement of a candidate when used in union communications. Thus, in Lopez, P242 (December 19, 1995), the Election Officer reviewed the use of the phrase "Putting Members First" by IBT Trustee Kornegay in official publications of Local 743. The Carey campaign had used the same slogan in its materials. In that case, both Carey's campaign and the IBT claimed "that the phrase 'Putting Members First' has a universal component, akin to "Organize the Unorganized," or "A Strong Union Includes Everyone." The respondents also contended that IBT use of the phrase predated the Carey campaign. The Election Officer rejected this claim, and found improper union endorsement:
The phrase "Putting Members First" is linked directly with Local Union 743 by dint of its placement on the first page of each publication.... Mr. Kornegay is a trustee appointed by Mr. Carey and a candidate for International office on the Carey slate. Looking at these factors cumulatively, the Election Officer finds that use of the phrase "Putting Members First" ... represents an endorsement of Mr. Carey's candidacy by the local union....
Despite this reasoning, however, we cannot find that IBT use of the word "unity" as an identifier for its political action conference represents an impermissible IBT endorsement of the Hoffa Unity Slate. The term "unity" is much less of an identifiable slogan than the phrase at issue in Lopez. The widespread use of the word in IBT material from successive administrations renders it fundamentally "generic" in its impact on IBT members. And, it is worth noting that the term "unity" was not used by the Hoffa campaign in its Kickoff leaflet passed out to conference attendees seeking their attendance at the September 19 Hoffa campaign event.
Consequently, in view of Lopez, and pursuant to the "tone, timing, and content" test explicated by Election Appeals Master Conboy in cases such as Martin, 95 EAM 18, the use of the "unity" theme by the incumbent leadership of the IBT neither effectively identifies the Conference with Hoffa's campaign, nor can it be construed as an "attack" on the candidacy of the Leedham slate, or of anyone else. The use of the ubiquitous concept of "unity" is therefore appropriate under the Rules.
2. The highly complementary "biographies" of Hoffa and Keegel included in the Unity Conference materials are standard laudatory pieces of the type used by membership organizations. The question here is whether the circulation of these biographies at IBT expense constitutes forbidden campaigning by the IBT. As the Election Officer reiterated in Caffrey, P47 (October 19, 1995):
'Campaigning' exists under the Rules when a communication 'supports or attacks' a 'candidate'.... The Election Officer has stated that the definition of 'campaigning' as that term is used in the Rules, contemplates more than mere communication with the members. Some indication of the advocacy for the nomination, election or defeat of a candidate must be in evidence. See Martin, [P10 (August 17, 1995), aff'd, 95 EAM 18 (October 2, 1995).]
The mere fact that an incumbent officer is favorably portrayed in a union publication does not constitute a Rules violation. As held in Crawley, P27 (August 23, 1995), regarding whether particular "speech" is campaign material, "[a] union officer certainly derives a benefit from the attention and publicity connected with the conduct of official union business."
The challenged biographies here do not cross the line into the area of impermissible campaigning by the IBT. They do not contain any references to the candidacy or campaign of anyone. Nor do they mention the upcoming 2001 IBT elections. Finally, they are remote in time from the elections in which Hoffa and Keegel intend to stand as candidates. The protest in this regard is therefore denied.
3. The protestor's allegations regarding the Jesse Jackson speech and his interaction with Hoffa and Keegel on stage raises claims similar to those referenced in Hoffa, P984 (October 17, 1996), aff'd, 96 EAM 261 (November 1, 1996). There, candidate Hoffa alleged that at an IBT sponsored voter registration rally held in September 1996 a Stockton, California city councilman cried out "five more years" during a speech at a union-financed voter registration event. The IBT did not deny that the statement was a reference to Ron Carey's candidacy, while at the same time there was no evidence that councilman's choice of words was directed by or in any way pre-arranged by the Carey campaign or the IBT. Nevertheless, the Election Officer held that the language used impermissibly advocated the election of a candidate. Id.
We cannot conclude that Jackson's speech here is akin to that of the city councilman in Hoffa. In contrast to that case, the speech here merely contained certain complementary references to the incumbents, in the context of a speech that was directed to an entirely legitimate "political" end: the election of IBT-endorsed candidates in the November 2000 U.S. elections. There is no doubt that the purpose of Jackson's visit was to motivate the Teamsters political operation with reference to the national election. [5] Of note here is the further holding in Hoffa rejecting a challenge to Carey's statement that "I need your help, I need your help in November." That remark during Carey's speech triggered applause and chanting from the audience. After the applause died down, Carey continued on to say, "We have to take those who oppose our right to strike and permanently replace them!" The statement, taken as a whole without the audience interruption, clearly indicated that Carey's references were to the 1996 national elections, and the Election Officer found that as such Carey's statement did not violate the Rules.
Because the entire context of Rev. Jackson's remarks centered on the relationship between the Teamsters and the civil rights movement, and on Teamster political action in the national elections, his speech and his interaction with Hoffa and Keegel is properly to be interpreted as a generic "the Teamsters will win" exhibition, rather than a partisan endorsement of Hoffa and Keegel. While it is troubling that the holding up of the incumbents' hands resulted in campaign-style chants of "Hoffa! Hoffa!" from the conference attendees, that alone does not convert Jackson's words and actions into impermissible campaigning at an IBT function. Jackson's speech here took place shortly before the fall 2000 U.S. national elections, and must be judged in that context. Accordingly, this aspect of the protest is denied. For the same reason, the protestor's assertion that IBT expenditures for the Jackson leaflet are improper is also denied. The purpose of the Jackson leaflet was to increase the turnout for Jackson's speech, and that speech concerned legitimate union business: the election of candidates to for President, Vice-President, the Senate and the House of Representatives supported by the IBT.
4. Finally, we turn to the issue of the payment for the distribution of the Hoffa campaign Kickoff leaflet during the Unity Conference. There is no question that the photocopying of those leaflets was done by Todd Thompson at Kinko's, and was paid for by the campaign's VISA card. No IBT resources were used in the photocopying of these campaign materials.
The distribution of the Kickoff leaflets by Bally's staff raises more troubling questions. First, it is undisputed that the Unity Slate was offered a discounted rate of $.55 per delivery, rather than the standard rate of $1.00 per delivery. This discount is the same that was offered to the IBT for distribution of the Jackson leaflet. This discount is not generally available to Bally's customers, since the standard rate for distributions is $1.00. The discounted rate was offered to the Unity Slate campaign by Bally's because of the "Hoffa relationship."
This discount constitutes an impermissible employer contribution by Bally's to the Unity Slate in violation of Article XI, Section 1(b)(2) of the Rules. Discounts offered to a campaign by an employer are permitted, and do not constitute an impermissible employer campaign contribution, if they are offered generally to customers. Here, however, Bally's offered the distribution discount to the campaign because of the "Hoffa relationship", and the discount that was offered was the same as given to the IBT as a significant customer. This situation is different from that present in Davies, P1062 (October 29, 1996), where a discount offered the Carey campaign by the Biltmore was found permissible because it would have been offered to "any Teamster." The admission of Bally's representative that the Unity Slate received the distribution because of the "Hoffa relationship" precludes such a determination.
The paper trail of "BBITW" billing for the distribution of the Kickoff leaflets also establishes an improper contribution by the IBT to the Unity Slate, in the form of an extension of credit by the Union to the campaign.[6] We make this finding even though we conclude that the evidence here is insufficient to establish that the Unity Slate has been "caught in the act" of intentionally attempting to have the IBT pay for campaign expenditures, as the protestor alleges. We cannot reach this latter conclusion due to the testimony of Todd Thompson and Bally's Teresa Lugowski that Thompson asked before the Unity Conference that campaign expenditures be charged to the campaign's VISA account.
Lugowski, however, admits that she initially billed the distribution of the Kickoff leaflets to the IBT, due to her failure to distinguish the Kickoff leaflet as a campaign document. Lugowski accepted full responsibility for the billing error, which was, as indicated above, subsequently corrected after an inquiry from the IBT's Cheryl Johnson to Lugowski. This correction occurred before Bally's issuance of the master bill from the BBITW account.
We must nevertheless find a violation of Article XI, Section 1(b)(6) of the Rules because of the strict liability that adheres whenever an improper contribution is made to a campaign. In order to facilitate the enforcement of these prohibitions, the Rules hold candidates and campaigns strictly liable for any prohibited contributions. Article XI, Section 1(b)(13). Strict liability requires a finding of a violation even if the candidate(s) did not know that the contribution came from employer or union funds. See, e.g., Sweeney, P1058 (October 28, 1996).[7]
Accordingly, the protest is GRANTED with respect to the improper campaign contributions received by the Unity Slate from Bally's and the IBT, and DENIED in all other respects.
Remedy
When the Election Administrator determines that the Rules have been violated, he "may take whatever remedial action is appropriate". Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator views the nature and seriousness of the violation as well as its potential for interfering with the election process. Based upon the foregoing, the Election Administrator orders the following:
1. The Unity Slate shall reimburse Bally's for the difference between the discounted price of $.55 per delivery it paid for distribution of the Kickoff leaflet and the regular $1.00 per delivery price charged by Bally's.
2. The IBT shall cease and desist from providing any campaign contributions to the Unity Slate by way of an extension of credit or otherwise.
3. The Unity Slate shall cease and desist from receiving any campaign contributions from any employer or the IBT.
4. Within two (5) days of receipt of this decision, the Unity Slate shall submit an affidavit to the Election Administrator attesting to its compliance with this Paragraph 1 of this Order.
An order of the election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Administrator. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, c/o International Brotherhood of Teamsters, 727 15th Street, NW, 10th Floor, Washington, DC 20005, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
William W. Thompson II
2000 EAD 51
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
645 Griswold
Penobscot Building
Suite 1800
Detroit, MI 48226
Tom Leedham
18763 South Highway 211
Molalla, OR 97038
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Phil Rushing
IBT Local 439
1531 East Fremont St.
Stockton, CA 95205
[1] Apparently such a video regarding Hoffa was shown earlier during the conference. According to Cheryl Johnson, short videos were produced about most of the major speakers at the conference.
[2] Johnson has been in her current role about seven months. A 32 year Teamster, she rose through the ranks in Ohio, where she ran Hoffa's '96 campaign. Ms. Johnson indicated that she is not part of the 2000 campaign staff.
[3] Our investigative file contains the actual credit card number printed on the revised order form, but that number is not reproduced herein. It is a credit card belonging to the Unity Slate.
[4] The IBT has provided documentary evidence regarding a number of other errors which have occurred in the "BBITW" master bill from Bally's, and which have also been corrected since the conference at the request of Cheryl Johnson.
[5] It is also important to remember that Rev. Jackson left Bally's shortly after his speech. He did not attend the kickoff rally that evening, and apparently has not formally "endorsed" the Hoffa-Keegel slate.
[6] Definition 5(d) in the Rules provides that extensions of credit in favor of a campaign are campaign contributions.
[7] In order to avoid future violations such as this, we suggest that campaigns purchasing goods or services in any circumstances where there is a possibility of confusing the campaign's conduct with that of the IBT or any of its affiliates make their billing instructions clearly and in writing.