March 23, 1998
VIA UPS OVERNIGHT
James P. Hoffa
March 23, 1998
Page 1
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Hoffa Slate
c/o Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
Richard Nelson, Director
Freight Division
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
David L. Neigus
Deputy General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Tom Sever, Gen. Sec. - Treas.
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Randy Cammack, Sec. - Treas.
Teamsters Local Union 63
845 Oak Park Road
Covina, CA 91724
Arthur Hackworth, Esq.
Consolidated Freightways
175 Linfeld Drive
Menlo Park, CA 94025
Susan Davis, Esq.
Cohen, Weiss and Simon
330 West 42nd Street
New York, NY 10036
Roy L. Atha
Teamsters Local Union 654
832 Warder Street
Springfield, OH 45503
James P. Hoffa
March 23, 1998
Page 1
Re: Election Office Case Nos: PR-065-IBT-PNW
PR-067-IBT-PNW
PR-068-IBT-PNW
PR-069-IBT-PNW
PR-071-IBT-PNW
Gentlemen:
James P. Hoffa
March 23, 1998
Page 1
Pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against the International Brotherhood of Teamsters (“IBT”) and IBT Freight Director, International vice-president, and candidate for re-election Richard Nelson. In PR-065, PR-067, PR-068, and
PR- 069, James P. Hoffa and the Hoffa Slate allege that the IBT has been utilizing union resources to support the likely candidacy of Mr. Nelson for the office of general president in violation of the Rules. Specifically, the protesters claim that the IBT and Mr. Nelson created and directed, under the pretext of announcing an informational gathering related to the National Master Freight Agreement (“NMFA”), a mass membership mailing at IBT expense for the purpose of advancing Mr. Nelson as a candidate. In PR-071, Roy Atha, a member of Local Union 564, also alleges that the mass mailing constitutes support of a candidate in violation of the Rules, because such informational gatherings are inconsistent with previous contract ratification campaigns.
The IBT admits that it produced and distributed notices advertising the appearance of Mr. Nelson in different cities, but denies that such activity constitutes campaigning. According to the IBT, the purpose of the appearances was to encourage the ratification of the NMFA, which supports the legitimate institutional interests of the IBT. The IBT further contends that Mr. Nelson is the proper person to promote the Agreement since he is head of the Division which led the negotiations for the IBT.
A letter referring to the same issue was referred to the Election Officer by Marvin M. Levy, the IBT Court-appointed auditor. The Election Officer consolidated the protests for decision because they arise from the same publications and involve similar issues under the Rules.
The protests were investigated by Regional Coordinator Christine M. Mrak.
Mr. Nelson is an IBT International vice-president. He was nominated as a candidate for that office at the 1996 IBT convention, and is currently a candidate in the rerun election for the position of vice-president at large. Mr. Nelson also serves as both the director of the Freight Division and co-chair of the National Freight Industry Negotiating Committee (“NFINC”). From December 1997 through February 1998, Mr. Nelson participated in negotiations which resulted in tentative approval of the NMFA on February 8, 1998. The NFINC, which was comprised in part of some candidates on the Hoffa Slate in the initial 1996 election, unanimously voted to recommend the negotiated NMFA to the membership for approval. The NMFA is the IBT’s largest contract, covering approximately 120,000 members. A vote to ratify the NMFA is scheduled for April 6, 1998.
James P. Hoffa
March 23, 1998
Page 1
After the negotiations were completed Mr. Nelson in his role as co-chair of the NFINC, scheduled a number of meetings with IBT members in various locations around the country. The purpose of these meetings, according to Mr. Nelson and the IBT, was to promote ratification of the NMFA. A flyer and a postcard publicizing the meetings were prepared by the Field Services Department and the Communications Department. The flyers were sent to local unions for posting. An example of the 8 ½” x 11" flyer, specifically promoting an informational meeting in San Jose, California, states as follows:
ATTENTION ALL TEAMSTER FREIGHT MEMBERS:
CONTRACT INFORMATION MEETING ON THE NEW NATIONAL MASTER FREIGHT AGREEMENT
Sunday, March 8
10:00 am - 12:00 Noon
Teamsters Local 287
1452 North 4th Street, San Jose, CA
Come talk with Teamsters National Freight Director Richard Nelson and local union leaders about key changes in the new freight agreement that was unanimously endorsed by the Teamsters National Freight Industry Negotiating Committee:
$1.45 increase in employer contribution to Teamster benefit plans over 5 years.
Pay increases for seniority employees, casuals, and new hires.
Elimination of “40 and Out”.
Stricter limits on subcontracting.
Stronger job protections if companies restructure their operations.
Improvements in health and safety.
Right to strike if management fails to abide by grievance decisions.
Richard Nelson will also discuss next steps for Teamsters in the freight industry.
Your regional supplemental negotiating committee members have been invited to attend.
For more information or directions to the union hall call: Ray Corrie at (408) 453-0287.
The flyer contains a 2" x 3" photograph of Mr. Nelson with the following caption: “Richard Nelson is Co-Chair of the Teamsters National Freight Industry Negotiating Committee and an International Union Vice President.” According to the IBT, the flyer and a cover letter were mailed out to local unions. The cover letter is directed to “local union principal officers participating in contract information meetings on the National Master Freight Agreement.” The letter states as follows: “[E]nclosed is a ‘camera ready’ copy of a turn-out flyer for you to post in freight barns or distribute to members. I hope you will be able to join me at the meeting.”
The postcard for the San Jose event, sent out by the IBT to individual members within a three-hour drive of the San Jose location, states as follows:
James P. Hoffa
March 23, 1998
Page 1
ATTENTION ALL TEAMSTER FREIGHT MEMBERS:
CONTRACT INFORMATION MEETING ON THE NEW NATIONAL MASTER FREIGHT AGREEMENT
Sunday, March 8
10:00 am - 12:00 Noon
Teamsters Local 287
1452 North 4th Street, San Jose, CA
Your regional supplemental negotiating committee members have been invited to attend.
For more information or directions to the union hall call: Ray Corrie at (408) 453-0287.
The postcard also contains a 1" x 2" photograph of Mr. Nelson. The caption under the photograph states as follows:
Come talk with Teamsters National Freight Director Richard Nelson and local union leaders about the new agreement and next steps for freight Teamsters.
Richard Nelson is Co-Chair of the Teamsters National Freight Industry Negotiating Committee and an International Union Vice President.
The flyers and postcards referred to in all of the immediate protests contain the same wording and format, differing only in the specifics regarding the date and location of the meetings, and the local contact person and their phone number. The protesters submitted flyers and postcards publicizing meetings scheduled in San Jose, California; Atlanta, Georgia; Dallas, Texas; Baltimore, Maryland; and Columbus, Ohio.
The Election Officer was provided with documentation which showed that members of the national negotiating committee, members of the supplemental negotiating committees, and officers of IBT local unions with freight members were invited by letter to join the publicized meetings with Mr. Nelson in order “to educate our members on the positive gains in this contract and show Teamster unity.” The letters went out to these union officials regardless of which candidates they supported or endorsed either in the 1996 International officer election or the rerun election.
Article VIII, Section 8(a) of the Rules states that a union-financed publication or communication may not be “used to support or attack any candidate or the candidacy of any person.” In reviewing union-financed communications for improper campaign content, the Election Officer looks to the tone, content, and timing of the publication. Martin, P-010-IBT-PNJ, et seq. (August 17, 1995), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995). The Election Officer also considers the context in which the communications appeared.
James P. Hoffa
March 23, 1998
Page 1
In Martin, the Election Officer recognized that union officers and officials have a “right and responsibility to exercise the powers of their office to advise and report to the membership on issues of general concern.” (quoting Camarata v. International Bhd. of Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979), aff’d, 108 L.R.R.M. (BNA) 2924 (D.C. Cir. 1981)). The Election Officer also recognized in Martin that:
. . . an otherwise acceptable communication may be considered campaigning if it goes on to make a connection with the election or the election process, if it involves excessive direct or indirect personal attacks on candidates, or alternatively, involves lavish praise of candidates. Otherwise legitimate coverage of the activities of a union official running for office may constitute campaigning if it is excessive.
The Election Officer finds that this protest has no merit. The protested materials publicize informational membership meetings with the co-chair of the NFINC for discussions about key changes in the NMFA. These are issues of interest to IBT members and do not constitute impermissible campaigning. Winning ratification of the NMFA by the affected IBT members is an admitted top priority for IBT officials and is a matter of legitimate union business. See Hoffa, PR-028-PCT-NYC (November 18, 1997); Hoffa, P-1181-IBT-EOH (November 18, 1996); Michaels, P-205-LU407-CLE (November 8, 1995); and Riley, P-101-IBT-EOH (August 23, 1995), aff’d, 95 - Elec. App. - 14 (KC) (September 29, 1995). The calling of the informational meetings was based upon the need to gain the approval of the membership for the NMFA and is appropriate union business.
Mr. Hoffa and the Hoffa Slate further contend that by showing Mr. Nelson’s photograph twice in one mailing and by mentioning his name five times in two pages of text, the mailing of the flyers and postcards by the IBT provides excessive and unprecedented publicity for the candidacy of Mr. Nelson. The evidence does not support this contention.
First, the materials do not identify Mr. Nelson as a candidate for IBT International office or mention the election. Second, there was no “excessive” dissemination of Mr. Nelson’s picture to the membership. The postcards were sent directly to members employed in the freight industry. The flyers were mailed to local unions for posting. The local unions retained discretion over any further dissemination of the flyers. Individual members did not receive two mailings at their homes.
James P. Hoffa
March 23, 1998
Page 1
While Mr. Nelson’s name appears three times on the flyer and twice on the postcard, the Election Officer finds that the references to Mr. Nelson are not gratuitous and that all are related to a legitimate union purpose. See Moerler, P-1171-IBT-EOH (November 6, 1996); Hoffa, P-1053-LU952-CLA, P-1088-LU952-CLA (October 28, 1996); DeRossett, P-1141-IBT-EOH, P-1145-IBT-EOH (October 31, 1996). As the Election Officer has stated, “Union officers must still fulfill their duties, even in the sensitive period just prior to the election. So long as these communications do not contain a reference to the campaign or excessive reference to a candidate, the communication does not violate the Rules.” DeRossett. Consequently, the Election Officer finds that the use of Mr. Nelson’s name and photograph on both the flyer and the postcard do not constitute excessive publicity.
The IBT has every right to prepare and distribute information about union business to its membership by newsletters, magazines, broadcasting, the Internet or other media. Communication about union business should not be chilled or discouraged by the threat that mere publication will result in an investigation. Except where the Rules or the Rerun Plan specifically address the content or the timing of publications of the IBT or IBT subordinate bodies, or a publication blatantly and lavishly promotes the activities of officials who are also candidates, the ongoing election does not curtail the right of the institution to disseminate information on union business. See Martin; Rules, Article VIII, Section 8.
Equally, neither the IBT, nor any IBT subordinate body, may use its resources to prepare and distribute publications that support or attack a candidate or a campaign in this rerun election. Rules, Article VIII, Section 8. If proven, a violation of this section would merit severe sanctions. The informational meetings to urge ratification of the NMFA do not violate the Rules.
Finally, in PR-071, Mr. Atha claims that the mailings and the scheduled meetings are not consistent with previous freight contract ratification campaigns. That contention is not correct. In connection with the UPS negotiations in 1997, the IBT sent out “Action Meeting” notices to members that referred to Mr. Carey. In deciding a protest based on the “Action Meeting” notices, the Election Officer found that they were “part of a customary effort to educate members about International action to organize carhaul employees and to respond to recent problems with employers . . .” and went on to state that Mr. Carey need not limit such activity [the mailing of the notices] due to the proximity of the election. Hoffa, P-1181-IBT-EOH (November 18, 1996). Consequently, the Election Officer finds that the mailing at issue in the instant protest is consistent with prior actions taken by the IBT.
As the citations to earlier protests show, the Martin standard, and the requirements of Article VIII, Section 8 of the Rules are well-established, well-tested, and well-known. The Election Officer makes no comment of judgment on the wisdom of the IBT’s use of its resources to print and distribute flyers and postcards about union business to the membership: that decision is a matter of IBT policy. A protest alleging a violation of Article VIII, Section 8, however, must articulate, in good faith, factual allegations that support, directly or by inference, the elements necessary to establish a Martin violation. In the future, protests that lack the required support may be subject to summary dismissal.
James P. Hoffa
March 23, 1998
Page 1
For all of the aforesaid reasons, 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
MGC:chh
cc: Kenneth Conboy, Election Appeals Master
Christine W. Mrak, Regional Coordinator
Marvin M. Levy, IBT Court-appointed Auditor