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IN RE: JIM LYONS, Protestor. (See also Election Appeals Master decision 06 EAM 43) Jim Lyons, a member and candidate for delegate from Local Union 200, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that Joint Council 39 and its president, Fred Gegare, violated the Rules by using the president’s column in Wisconsin Teamster magazine to “express official Wisconsin Joint Council support for Gegare and against the Leedham slate and specifically Leedham slate candidate Tim Buban.” Election Supervisor representative Joe Childers investigated this protest. Findings of Fact The protest alleged that an article under Gegare’s byline in the January/February issue of Wisconsin Teamster was an explicit attack on Teamsters for a Democratic Union (TDU) and was intended to undermine the candidacy of Tim Buban, secretary-treasurer of Wisconsin Local Union 200, a candidate for International vice president on the Tom Leedham Strong Contracts Good Pensions slate, and a prominent TDU supporter. The protest further alleged that the issue of Wisconsin Teamster was timed to reach members of Local Union 200 at about the same time their ballots arrived in the local union delegate and alternate delegate election and was intended to influence the outcome of that election. The protest also asserted that the Wisconsin Teamster article followed soon after the distribution of February 2006 issue of Teamster, the IBT magazine, that included the “battle pages” of Hoffa 2006, one of which explicitly linked TDU with the Leedham slate and portrayed TDU as seeking to “wreck” the union. Finally, the protest alleged that pension reform in general, and reform of the Central States Pension Fund (CSPF), of which Gegare is a trustee, are major issues in the election of International officers. Gegare’s article, titled “TDU Caught Lying About Professor’s Comments on Central States Fund,” was a response to an article that appeared in the December 2005 issue of Convoy Dispatch, TDU’s periodical. The TDU piece, titled “Apples and Oranges, or Just Rotten Apples?,” sought to answer this question: “why has the Central States fund cut so deeply when other Teamster funds continue to provide superior benefits?” The article quoted a study that the Central States Pension Improvement Committee “compiled with help from Professor Teresa Ghilarducci of Notre Dame University.” The study compared the Central States fund with 5 other Teamsters pension funds with respect to significant factors, including the ratio of active employees to retirees, the percent of pension liability funded, and the benefits paid. The TDU article concluded that Central States was similarly situated to the other funds and should not have made “the most terrible cuts in pension accruals and medical coverage, and eliminate[ed] 25- and 30-and-out for the future.” The TDU article did not refer to the International officer election, any candidates in that election, or to the delegate and alternate delegate elections in any local union. Gegare’s piece referred directly to the TDU article; he stated, “TDU has published a report that claims that the Trustees of the Central States Pension Fund acted improperly in making changes to the Pension Plan in 2003.” Gegare criticized TDU’s report, using statements he said were made by Professor Ghilarducci, the pension expert the TDU article said assisted in preparation of the pension fund comparison. Gegare said that Ghilarducci “publicly accused TDU of deliberately distorting the facts and misusing her research regarding Central States.” He quoted Ghilarducci as stating that the pension cuts carried out by the Central States fund were necessary and that she did not wish to be associated with TDU’s conclusions. Gegare’s article did not refer to the International officer election or any candidate in that election, nor did it mention pending or decided local union delegate and alternate delegate elections. Protestor Lyons stated that he received the Wisconsin Teamster that carried Gegare’s article on February 8, 2006. Wisconsin Teamster is published bi-monthly; the dates of mailing of the periodical for the past year are as follows: 2/7/2005, 4/11/2005, 6/6/2005, 8/8/2005, 10/10/2005, 12/12/2005, and 2/6/2006. Ballots for Local Union 200’s delegate and alternate delegate election were mailed February 2. Buban and his slate won all delegate and alternate delegate positions in the election. During the campaign, Buban’s slate distributed campaign literature on the pension issue. One flyer asked: “Why Has Central States Cut Our Pension? Why Are Pension Fund Trustees Unelected and Un-accountable? Members Deserve Answers!” Analysis Article VII, Section 8(a) of the Rules prohibits use of union-financed articles “to support or attack any candidate or the candidacy of any person.” The “tone, timing and content” test is used to determine whether such publications engage in impermissible campaigning. Martin, P10 (August 17, 1995), aff'd, 95 EAM 18 (October 2, 1995); Jacob, P71 (September 7, 1995), aff'd, 95 EAM 19 (October 3, 1995); Ruscigno, P67 (July 19, 1995); Lewis, 2001 EAD 357 (May 9, 2001). The Election Supervisor must also review “the specific context in which the communication takes place.” Jacob, supra. Election Appeals Master Conboy explained in Martin, 95 EAM 18 (October 2, 1995):
Moreover, a union-funded newspaper does not violate the Rules by publishing articles on newsworthy issues of interest and legitimate concern to membership. Sullivan, P66 (July 28, 1995); Volpe, P828, aff’d, 96 EAM 218. Further, a published report on the activity of incumbent officers does not violate the Rules where it “is addressed to the regular functions, policies and activities of such incumbents as officers involved in matters of interest to the membership, and not as candidates for re-election.” Jacob, P68 (July 26, 1995). Gegare’s article did not violate the Rules. It addressed the funding and benefits paid by the Central States Pension Fund and, implicitly, the fund’s continued viability, issues of obvious interest and concern to members with stakes in the fund. Gegare’s article was part of the ongoing debate on pension issues within the IBT and in the nation at large. It did not refer to any pending election or support or attack any candidate. Merely because the article addressed an issue that also is debated in a pending election does not convert the article to impermissible union-financed campaigning. Accordingly, we DENY the protest. 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 upon evidence that was not presented to the Office of the Election Supervisor in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal and shall be served upon: Kenneth Conboy Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, all within the time prescribed above. A copy of the protest must accompany the request for hearing. Richard W. Mark cc: Kenneth Conboy DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED): Bradley T. Raymond, General Counsel David J. Hoffa Barbara Harvey Ken Paff Daniel E. Clifton Stefan Ostrach Jim Lyons Tim Buban Joe Childers William C. “Bill” Broberg Jeffrey Ellison
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