November 4, 1997
VIA UPS OVERNIGHT
George Young
November 4, 1997
Page 1
George Young
26727 West 226th Street
Spring Hill, KS 66083
Deborah Lawson
United Parcel Service
55 Glenlake Parkway, NE
Atlanta, GA 30328
Kimberly M. Kaplan, Esq.
Schnader, Harrison, Segal & Lewis
1600 Market Street
Philadelphia, PA 19103
Paul Alan Levy, Esq.
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
Ron Carey Campaign
c/o Susan Davis, Esquire
Cohen, Weiss and Simon
330 W. 42nd Street
New York, NY 10036
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
George Young
November 4, 1997
Page 1
Re: Election Office Case No. PR-006-LU41-NCE
Gentlepersons:
A pre-election protest was filed by George Young, a member of Local Union 41, pursuant to the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against United Parcel Service (UPS). Mr. Young alleges that UPS made an impermissible contribution to the campaign of James P. Hoffa, candidate for general president, by circulating a news article attacking incumbent General President Ron Carey. UPS admits that the news article was generally distributed through the company “e-mail” system but denies that this action constitutes a violation of the Rules.
The protest was investigated by Regional Coordinator Judy Kuhn.
Mr. Young is a package-car driver employed by UPS at its facility in Lenexa, Kansas. On September 10, 1997, he observed a news article posted on a bulletin board at the Lenexa terminal. The bulletin board, located in an area where package-car drivers check in and out at the beginning and end of their shifts, is reserved exclusively for the use of UPS.
George Young
November 4, 1997
Page 1
The posting began with the following notation:
The following article is the opinion of John H. Fund, a columnist for MSNBC. Please share this information with all employees. From: Deb Lawson, Internal Communications.
The article, entitled “Administration Puts in Fix for Ron Carey,” states that the UPS strike was “rigged” by Mr. Carey to further his own campaign and that the Election Officer intentionally delayed her decision to re-run the election in order to give Mr. Carey the political benefit of a strike. The reporter further claims that this arrangement is part of a larger plan by the Democratic Party to keep Mr. Carey in office in exchange for the IBT’s political and financial support.
According to UPS’s Internal Communications Department, the circulation of news articles through the “e-mail” system was customary both during and after the strike. Additional evidence was submitted establishing that an article concerning Mr. Carey in his capacity as general president, which does not mention his candidacy, had previously been distributed by UPS through its “e-mail,” as well as announcements of various charitable, social, and educational events. UPS states that, at the time of this posting, its focus was still very much on the strike and not on the election or the campaign of any candidate.
Article XII, Sections 1(a) and 1(b)(1) of the Rules prohibit an employer from making any campaign contributions to the campaign of a candidate for delegate or International office. The Rules define “campaign contributions” to include “any direct or indirect contribution of money or other thing of value where the purpose, object or foreseeable effect of that contribution is to influence the election of a candidate.” Rules, Definitions, 5. As stated in the Election Officer’s Advisory on Campaign Contributions and Disclosure, such contributions can include any goods, compensated services or any material things of value.
In-house communications published by employers are subject to review under
Article XII, Section 1(b)(1) of the Rules in order to determine whether their “purpose, object or foreseeable effect” is to influence the election of a candidate. See Hoffa, P-743-IBT-SCE (May 23, 1996). The Election Officer has found that such publications violate the Rules when they print material that supports or attacks a candidate for IBT office. See Barmon, P-469-LU769-SEC (March 1, 1991) (company newsletter); Committee to Elect Ron Carey, P-291A-LU70 and P-278-CSF (March 14, 1991), aff’d, 91 - Elec. App.- 106 (SA) (March 22, 1991) (pension fund newsletter); and Masters, P-096-LU348-CLE (September 13, 1995), aff’d, 95 - Elec. App. - 26 (KC) (October 13, 1995) (union lawyer newsletter).
George Young
November 4, 1997
Page 1
The majority of the text contained within this article distributed by UPS over its “e-mail” system concerns the national strike and the actions of the Election Officer in the context of ordering the re-run election. The Election Officer is aware that UPS did not write the article and that its “focus” at the time of circulation was on the strike and not on the campaign. But the article does contain clear references to Mr. Carey in his capacity as a candidate, criticizing him with sufficient severity to constitute an attack on his campaign. Pursuant to the Rules at Article XII, Section 1(b)(10), ignorance by an employer that its resources were used to promote a candidate is not a defense to an impermissible contribution under Article XII, Section 1(b)(1).
Because the article attacks a candidate, even only in part, its distribution by UPS violates the Rules. In his decision adopting the Rules, Judge Edelstein commented upon the necessity for employers to remain completely neutral in the election:
. . . although employers “are not parties to the original action,” this Court’s authority under the All Writs Act extends to employers because they are in a position to influence campaigning during the 1995-96 IBT election and such influence could have profound implications for the Consent Decree.
United States v. IBT, 896 F. Supp. 1349, 1366-67 (S.D.N.Y. 1995), aff’d as modified, 86 F.3d 271 (2d Cir. 1996). In Carothers, P-194-LU299-MGN (October 26, 1995), the Election Officer stated:
It is of great concern to the Election Officer when an employer involves itself in any way in the election process. See Darrow, Case No. P-096-LU348-CLE (September 13, 1995), aff’d, 95 - Elec. App. - 26 (KC) (October 23, 1995) (law firm newsletter referring to candidate’s campaign and including negative reference to candidate was an employer campaign contribution). To avoid violation of the Rules prohibiting employer contributions, it is advisable that employers, particularly those of Teamster members, avoid even factual reporting or reprinting of election related news in employee newsletters.[1]
George Young
November 4, 1997
Page 1
The Election Officer has ruled that the IBT and its various local unions may reproduce and distribute this and other articles at this time in the context of their right and responsibility to freely debate issues which are genuine subjects of legitimate union interest. See Michaels, P-205-LU407-CLE (November 8, 1995); Riley, P-101-IBT-EOH (August 23, 1995), aff’d, 95 - Elec. App. - 14 (KC) (September 29, 1995); Hoffa, P-1181-IBT-EOH (November 18, 1996); Hoffa, P-808-IBT-SCE (June 28, 1996), aff’d, 96 - Elec. App. - 213 (July 17, 1996). But employers do not have this right or this responsibility and must therefore give increased scrutiny to the printed material they distribute to their employees during the election period.
The UPS communication had, at least in part, the “purpose, object or foreseeable effect . . . to influence, positively or negatively, the election of a candidate . . .” within the meaning of the Rules. Thus, regardless of UPS’s actual intent, the distribution of the article was an impermissible employer campaign contribution.
Accordingly, the protest is GRANTED.
When the Election Officer determines that the Rules have been violated, she “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. The Election Officer orders that UPS shall immediately cease and desist from distributing written material to its employees which support or attack candidates in violation of the Rules at Article XII, Section 1(b)(1).
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one 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 N. Capitol Street, Suite 445, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Benetta M. Mansfield
Interim Election Officer
BMM/gb
George Young
November 4, 1997
Page 1
cc: Kenneth Conboy, Election Appeals Master
Judy Kuhn, Regional Coordinator
[1]Unlike union publications which regularly and legitimately report on union business and internal union affairs, employers have no reason to involve themselves in the election of the IBT’s delegates or International officers.