IN RE: ALEXANDRA POPE,
Protest Decision 2000 EAD 4
Issued: August 1, 2000
OEA Case No. PR060502NA
See also Election Appeals Master decision 00 EAM 3 (KC)
Alexandra Pope, a member of Local 805, filed a pre-election protest pursuant to Article XIII, Section 2(a) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules").[1] The protest challenges actions listed in three categories: 1) the imposition of a temporary trusteeship over IBT Local 556 by General President James P. Hoffa and the removal by the trustee appointed by Hoffa of Maria Martinez from her position as chief shop steward; 2) improper campaigning and improper use of union resources in support of the reelection of General President Hoffa at a April 2000 meeting of the Central Region Construction Trades Division; and 3) improper campaigning and use of union resources through attacks on Tom Leedham, secretary-treasury of Local 206 in various union publications in December 1999 and early 2000. These three categories of allegations have been severed for purposes of investigation and resolution. The third is resolved by this decision.
Pope contends that the IBT improperly campaigned and used union resources when it published articles hostile to Leedham in the December 1999 issue of the IBT's Teamsters Warehouse News and the January/February 2000 issue of the IBT's The Teamster, and that Joint Council 28 did the same in the February-April 2000 issue of its publication Washington Teamster. Pope alleges that Leedham was singled out for criticism in these articles based upon his status as a candidate for General President in the 2000-2001 election, that articles criticizing IBT elected officials by name have not appeared in IBT publications in the recent past, that "no other union officials involved in the supposed transgressions were mentioned" in the publications, and that the "information presented was distorted and in some cases [contained] outright lies and was clearly done to damage Tom Leedham's reputation and support in future campaigns."
The IBT responds by arguing that a) Leedham was not a candidate at the time of the challenged publications; b) even if he were a candidate, the action for which he was criticized (his failure to support any Joint Council 37 sanction of an extension of Local 104 picket lines to facilities in Oregon) was not the product of an effort to discredit him, but a legitimate union strategy to put pressure on a recalcitrant employer; c) the challenged publications merely reported to the union's membership on an issue of concern to them; d) the timing of the challenged publications was too remote from the delegate and officer elections to make them improper under the Rules; e) no mention of the 2000-2001 election was made in the challenged articles; and f) the articles represent a legitimate attempt by the union to place pressure on officials of subordinate bodies to support its position of the union in a labor dispute.
Deputy Election Administrator Maureen Geraghty and Election Administrator representative William W. Thompson, III investigated the protest.
We address in Part I below the threshold issue of Leedham's candidacy status at the time the challenged publications occurred. In Part II we address the merits of the protest allegations.
I. Tom Leedham's Status As A Candidate In December 1999 And Thereafter.
A. Applicable Standards
In Martin, P10 (August 17, 1995), aff'd, 95 EAM 18, Election Officer Quindel reviewed the standards applicable to determining whether a union member is a "candidate" within the meaning of Definition 6 of the 1995 Rules, a provision identical to Definition 6 of the Rules. The Election Officer held that:
In order to determine candidate status within the meaning of the Rules, the Election Officer first determines if and when a member is "actively seeking nomination or election," including a declaration or announcement of candidacy or other statement of intent to seek a delegate, alternate delegate, or International officer position. The Election Officer further reviews the Campaign Contribution and Expenditure Reports ("CCER") that are required by Article XII, Section 2(a) to ascertain if and when the member has accepted any contributions or expended any funds in furtherance of his or her candidacy. The Election Officer also reviews other indicia of candidacy which may be revealed by the investigations conducted through her office.
Martin, p. 7. There, the Election Officer reviewed a piece of partisan literature (non-Teamster financed) issued by then-General President Ron Carey under the logo "Teamster Pride," as well as another letter Carey issued to the membership. Carey disseminated these communications before he made a formal candidacy announcement.[2] Based on this review, the Election Officer found that Carey was effectively a candidate as early as October 1994. In reaching her conclusion, the Election Officer was "guided by cases applying Section 401(g)" of the LMRDA, which was and is incorporated into the Rules. See also, 29 CFR §452.75.
Martin is in accord with the LMRDA. Section 401(c) states:
Every bona fide candidate shall have the right ... to inspect a list containing the names and the last known of all members....
The courts have interpreted the phrase "bona fide candidate" liberally, based upon the legislative purpose of Title IV of the LMRDA:
to ensure free and democratic union elections. See Wirtz v. Glass Bottle Blowers, 389 US 463, 470 (1968). The statutory guarantees are specifically designed to offset the "inherent advantage over potential rank and file challengers" possessed by incumbent union leadership. Id., at 474...
Masters, Mates, and Pilots v. Brown, 498 U.S. 466, 476 (1991).
In Masters, Mates, and Pilots, the Supreme Court ruled unanimously that a union must honor a self-declared candidate's request for access to the union's membership list prior to any nomination process. The Court agreed, "it would [not] be reasonable to refuse to recognize an eligible candidate until after the nominating process is completed." Id. at 474. Indeed, the DOL regulations implementing Title IV state at 29 CFR §452.80:
a person need not be formally nominated in order to be a bona fide candidate entitled to exercise the right ... [to distribute campaign literature and inspect the union membership list]. Thus, any qualified member seeking to be nominated and elected at a convention would be able to take advantage of the distribution rights even before the convention meets and thus attempt to influence members to select delegates favorable to his candidacy. A union may reasonably require that a person be nominated in order to be elected, but may not prevent a member who actively seeks office and is otherwise qualified from taking advantage of the campaign safeguards in the Act in an effort to gain the support necessary to be nominated.
Emphasis added.
In Guzman v. SEIU Local 32B-32J, 158 LRRM 2971 (2d Cir. 1998), the Second Circuit held that a petitioner had been a "bona fide candidate" because:
[i]t is not disputed that prior to announcing his candidacy, Guzman made noises like a candidate. ...The Local makes its stand on the proposition that a bona fide candidate must have announced....[But] there is good reason to leave open the possibility that a ... campaign could begin before any candidate announced ... - a familiar phenomenon in campaigns for public office. Otherwise a union would be free to support an undeclared incumbent....
Id. at 2973-74.
In New Directions v. Seda, 867 F.Supp. 242 (S.D.N.Y. 1994), the court found a bona fide candidacy existed even though candidacy had not been declared:
Schermerhorn is a founder of New Directions and has been its presidential candidate since 1988. Further, he is widely known throughout Local 100 as New Directions' leader. In Local 100 politics, Schermerhorn has always been identified with New Directions.
867 F.Supp. at 244. See also, e.g., Davenport v. OPEIU, 142 LRRM 2468 (E.D. Tenn., 1991).
Each of these cases teach that candidacy determinations are fact-intensive inquiries in which not only a member's candidacy declarations, receipt of contributions and campaign expenditures are considered, but also any other indicia of candidacy status. We now turn to the facts.
B. Findings of Facts Relating to Leedham's Candidacy
Leedham ran against Hoffa in the 1998 rerun election for General President. Leedham had been an IBT Vice President and Warehouse Director under General President Carey. Leedham has remained since then the principal figure in the leadership of that portion of the Teamsters membership that had supported Carey and opposed the election of Hoffa as General President in the 1998 rerun. One of the groups supporting Leedham in the rerun was Teamsters for a Democratic Union ("TDU"). The next election for IBT General President will be in 2001.
Since at least spring 1999, Leedham and/or TDU have on many occasions spoken in direct or indirect terms about the upcoming elections. In May 1999 Leedham was quoted in BNA's Union Labor Report:
Leedham said April 24 that he and his former slate of candidates intend to serve as union watchdogs, despite their loss to ... Hoffa's slate in last year's election. 'We will continue to spread information about what Hoffa is doing, bad or good,' Leedham told Unionists attending the Labor Notes 1999 Conference. Leedham said they 'are more determined than ever to keep the reform we worked to build,' referring to his term as a vice president under former Teamsters President Ron Carey.
E-8. In September 1999 TDU issued a press release regarding its upcoming November 5-7, 1999 convention. It includes the statement that "[r]eform leader Tom Leedham will speak on the future of reform and plans for the 2001 Teamster election." E-9D. In the September issue of the TDU newspaper, Convoy Dispatch, a large announcement of the November convention appeared, which includes a picture of Leedham together with this statement attributed to him:
This convention will be an important meeting for Teamster reformers. We need to evaluate where we stand and plan for the future. Leaders and members concerned about where our union is headed need to get together, and this convention will be the place to do it.
E-9E. The TDU Activities Update for October 1999 also headlined the convention, and highlighted that "Tom Leedham will address the convention on Saturday...." E-9H.
Another TDU leaflet entitled "Defending our Gains and Building Toward the Future" concerns a pre-convention gathering on November 4-5, 1999 for "Teamster Officers and Staff." Included in the "Agenda," is the announcement that there will be "[d]iscussion of plans for the next IBT election. This meeting is organized and sponsored by Tom Leedham..." and others. E-9I.
In yet another leaflet touting the convention entitled "What's the Future Hold for Grocery Teamsters?" the text states "the grocery and warehousing meeting at the convention is a place to share ideas, hear from leaders like Tom Leedham, and set plans for the coming year." E-9J. Another version of this theme appears in a convention call to "Women Teamsters" from TDU staffer Simone Sagovac:
Plan for 2001. This will be an important convention for reform-minded Teamsters to lay plans for the 2001 convention and election. Tom Leedham and other key Teamster leaders will be there....
E-9K.
At this same time, and in relation to the labor dispute discussed in the articles challenged in this protest, IBT officials communicated to Leedham in a way that indirectly referenced Leedham's political stance. Thus, on October 21, 1999, General President Hoffa sent a letter to the six officers of Joint Council 37, including Leedham, demanding that they cooperate in the Local 104 picket line extension. The letter concludes:
I trust that you will not play petty politics with the lives of our brothers and sisters in Arizona, will put aside any internal differences, and will sanction and support the extension of the picketing to the Portland Warehouse. I solicit and expect your support in this important struggle.[3]
E-14. Similarly, and in relation to the same labor dispute, IBT warehouse director Ken Hilbish sent a confidential report to Hoffa on his October 25, 1999 face off with the Joint Council 37 leadership over their resistance to extension of picket lines. Hilbish reported that:
Several Joint Council members brought politics into the issue, however, our people never once allowed the discussion to get political. We allowed their comments to go by with no response, since I was in tdu central.
EE-19, mphasis added.
There is no question that Leedham's role, at least as a de facto leader of TDU supporters, was on the minds of those at the highest levels of the IBT administration in fall 1999. An exchange concerning the labor dispute that is at the center of this protest between Leedham and Joint Council 42 President Santangelo illustrates this point. Thus, on November 1, 1999, Leedham wrote:
Your willingness to sacrifice Teamster jobs in Phoenix and Portland for political purposes apparently knows no bounds.
However, you underestimate Teamster officers, activities and members. They see this episode as either the most despicable of blatant politics or just one more example of the IBT's incredible incompetence.
I see it as both.
E-30. Santangelo responded:
As a former International Vice President and the Director of Food, Warehouse, and Miscellaneous, I cannot believe that you would vote NO on allowing Local 104 to extend its picket lines to your area.
I wonder where this union would be going if you were ever elected General President. Your actions were uncalled for and damaging to the hundreds of teamsters who lost their jobs.
How could you call yourself a leader when you turned away when our brothers and sisters needed you most?
E-31.
The next few days saw the simultaneous occurrence of a TDU leadership conference, its annual convention in Cleveland and a meeting of the IBT General Executive Board ("GEB") in Washington, D.C. On November 5th, the day before Leedham's keynote address to TDU, the GEB passed a resolution condemning Joint Council 37 for not honoring the extension of the picket lines. See E-34 and 34A.
BNA's Daily Labor Report described the TDU convention:
Although the ... next election of top officers is still two years away, members of the insurgent group ... already were laying the groundwork for getting their own candidate for international president elected in 2001.
And while Tom Leedham ... has yet to announce formally his intention to run again, his address to the TDU annual convention had all the earmarks of an election stump speech. He blasted Hoffa for talking tough but then "settling short" in negotiations at Northwest Airlines. ... he also argued that last summer's national car haul agreement ... had inadequate job security provisions....
To the cheers of the more than 400 union activists attending the convention, Leedham said, "We will never stop needing a strong TDU to set forth the principles to which leaders are held accountable."
TDU members ... consider Leedham, who is not a member of the reform group but espouses its philosophy ... a viable candidate whom they are prepared to support.
E-36.
The December, 1999 issue of Convoy Dispatch included excerpts from Leedham's TDU convention speech:
Hoffa's gone to great lengths to try to break us, but has only succeeded in making us more determined to challenge his intentions and his goals....
The Teamster Convention will give all of us an opportunity to challenge our leadership and put ourselves forward as well....
I challenge you to run Rank and File Power candidates for delegate in locals next year.... We need to set up our organizations local by local, raise money, organize in our shops and continually challenge poor, weak and destructive leadership.
E-37B, Emphasis added.
Other coverage of the TDU convention in the "trade press" was comparable. The trade paper Transport Topics stated: "Leedham ... remains the most likely challenger in 2001. In a blistering speech to TDU members Nov. 6, Leedham vowed to move forward with reforming the union.... He can try to break us, but that only makes us more forceful, Leedham said."
E-37A.
A review of Leedham's November 6, 1999 speech to the TDU Convention reveals a classic "stump" speech, in which Leedham lays out the reform platform, consistently referencing the 1998 campaign "rank and file power" slogan, plank-by-plank; and exhorts his followers to "organize for the struggle to come." Excerpts directly from the video of that speech include:
We've said the reform movement has raised the expectations of Teamster members.... This just isn't talk. We're not about just 'settling' [contracts]. Reform is about fighting for more of what members deserve and giving them the tools to fight for it themselves....
We know what Teamster power is. It's the power of rank and file Teamsters....
Hoffa doesn't understand member mobilization. It's too messy, too much work. But this is exactly where our power lies....
We have to rebuild that willingness to struggle, local by local, and pressure our national leadership to do the same. But we can't stop there. We also have to take the step of actually challenging the local leadership in elections....
We'll soon have an opportunity with the upcoming Teamster convention to raise many of these issues of a vision for this union, and the hard work it will take to make the union a strong and winning union again.... The Teamster convention will give all of us an opportunity to challenge our leadership and put ourselves forward, as well. There are many things that are not being addressed while this administration is busy cleaning their plates, meeting politicians, receiving awards....
We must put forward candidates ourselves to run for delegate positions. I challenge all of you to run rank and file power campaigns in your locals next year. We know our ten-point program and specifically the issues I've raised here resonate with rank and file members....
We need to set up our organizations local by local, raise money, organize in our shops, and continually challenge poor, weak, and destructive leadership. In the officers' meeting we took steps to build our network, to offer each other support, and draw in more officers to support the rank and file campaign, as they get disillusioned and hopefully won over to our perspective....
We must leave here and follow through on recruitment goals, build our lists of contacts in other locals, get our e-mail networks going, and expand the circulation of Convoy Dispatch....
Already, the days I have spent with you planning, strategizing, and exchanging ideas have reenergized me, and I hope you too. We've got a lot of work ahead of us. But our union's worth it. ... I'll continue to stand shoulder to shoulder with each and every one of you.
Video, E-48. At the conclusion of Leedham's speech, he received a standing ovation from the convention accompanied by chants of "Leedham!, Leedham!"
C. Discussion
There is no question that during the fall and winter of 1999-2000 Tom Leedham was not a declared candidate for International General President. According to Leedham, neither was he engaged in any Teamsters political fund-raising for his own candidacy during that period. Therefore, we are presented with the question whether Leedham was, nevertheless, "actively seeking nomination or election..." as a "bona fide candidate." Rules, Definition 6, and LMRDA Section 401(c).
On November 6, 1999 Tom Leedham announced to his core constituency - TDU - that the upcoming "Teamster Convention will give all of us an opportunity to challenge our leadership and put ourselves forward as well." This declaration -- particularly in the context discussed above -- is an unmistakable reference to Leedham's incipient formalization of his candidacy for General President, a formalization that has since occurred. As in Guzman, Leedham "made noises like a candidate." As in New Directions, Leedham was the prior standard bearer "widely known throughout ... [the IBT] ... as [the 'reformers'] ... leader. … [Leedham] has always been identified with [TDU]."
Martin provides further guidance. There, the Election Officer concluded at the urging of protester Hoffa that an October 1994 letter by then-General President Carey to IBT members was a classic example of pre-declaration rallying of support by and for Carey, and thus established his de facto "candidacy." The Carey letter declared:
The Royal Teamsters desperately want to get back to the high life again. They're working hard to elect anti-reform candidates in Local Union elections, the races for delegates to the 1996 International Union Convention, and in the 1996 election for International Union Officers.
…
The members, families, retirees and hard-working union officers - you're the reason I got into this fight many years ago, and you're the reason why I feel confident about the challenges ahead. I plan to write you in the coming months - not at union expense - and hope you will do the same. Send me your ideas and your comments, and let me know if there are other Teamsters who ought to be receiving this information.
Martin, pp. 7-8. Based on these communications, "the Election Officer revise[d] her previous finding, and [found that] Carey was a 'candidate' as that term is defined in the Rules...." Id.
The same conclusion is warranted here. Leedham's speech to the TDU convention on November 6, 1999, and the above-described context in which it was given, leaves little doubt that as of that date Leedham was "actively seeking … election" to International office. The prominence accorded to Leedham in TDU publicity leading up to the convention, the tone and content of his keynote speech, and the reaction of his supporters, have all the classic indicia of the traditional phase of undeclared but active candidacy ubiquitous in American political campaigns.[4]
Accordingly, the Election Administrator concludes that as of November 6, 1999, Leedham was a candidate for International office within the meaning of Definition 6 of the Rules and Section 401(g) of the LMRDA.
II. The Publication Allegations.
A. Applicable Standards
The protest makes the following allegations centered on the challenged publications:
(a) "Improper campaigning and use of Union resources by attacking Tom Leedham;" and
(b) "Articles heavily critical of Tom Leedham ... appeared in" The Teamster, Teamster Warehouse News, and Washington Teamster.
The first allegation regarding improper campaigning and use of union resources concerns Article VII, Section (11)(b) and (c) of the Rules:
(b) ...[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. Campaigning incidental to regular Union business is not, however, violative of this Section....
(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.
The first allegation also requires application of LMRDA Section 401(g):
Use of dues, assessments or similar levies, and funds of employer for promotion of candidacy of person. No moneys received by any labor organization by way of dues, assessment, or similar levy, and no moneys of an employer shall be contributed or applied to promote the candidacy of any person in an election.... Such moneys of a labor organization may be utilized for notices, factual statements of issues not involving candidates, and other expenses necessary for holding an election.
See also 29 CFR §§452.73-452.77.
In applying this provision the court in Brennan v. Sindicato Empleados, 85 LRRM 2551, 2555-6 (D.C.P.R. 1974) noted that the test for propriety of expenditures is whether,
considering the totality of the circumstances regarding the activities, there is reflected an intention to endorse and encourage the candidacy of certain individuals to the detriment of others. This is true even though certain of the activities ... may have been partly motivated by legitimate purpose....
The prohibition of section 401(g) ... proscribes either direct contributions from the union treasury or contributions made through the use of union facilities to promote the candidacy of an individual. The amount of money spent is not the test.
* * *
A section 401(g) violation has a potential for influencing every vote cast in an election in a way which is not susceptible of precise measurement.
In Middleton, P105 (July 27,1995), the Election Officer noted that: "Section 401(g) of LMRDA contains similar prohibitions on the use of union or employer assistance in campaigning and is incorporated into the Rules pursuant to Article XIII." Therefore, the standard for violation of the Rules in this regard is in pari materia with standards applied under Section 401(g) of the LMRDA.
The second allegation requires the application of Article VII, Section (8)(a) of the Rules:
(a) No publication or communication financed, directly or indirectly, by a Union may be used to support or attack any candidate or the candidacy of any person, except as authorized by Sections 8 and 9 of this Article. A Union-financed newspaper or other publication or communication shall not:
(1) contain pictures or articles stating or indicating support of the candidacy of a particular candidate;
(2) use a larger or more attractive picture of someone than had previously been used if that person is a candidate, unless there is a valid journalistic reason for it;
(3) print uncomplimentary pictures of any candidate;
(4) print features and accompanying photographs about insignificant or unnewsworthy events in which the accomplishments or qualities of any candidate are heralded;
(5) contain pictures or articles reporting on the activities of a particular candidate where the same or similar activities of other similarly situated candidates for the same office(s) have not been similarly reported; or
(6) carry a substantial number of articles and/or multiple pictures featuring a particular candidate, unless all candidates for the same position are given equal treatment, equal space and equal prominence.
To the extent candidates are aligned, published materials shall be reviewed with respect to such candidates as a whole.
The second allegation also concerns the above-referenced provisions of Section 401(g) of the LMRDA.
In Reich v. Teamsters Local 843, 149 LRRM 2358 (D.N.J. 1994), the court reviewed the law with regard to campaign content in union-sponsored media:
'To establish a violation of Section 401(g), it is not necessary that the questioned publication be explicitly or implicitly committed to endorsing specific candidates or attacking the opposition. Rather its overall tone, timing, and content must be evaluated to determine whether there is any blatant encouragement of the incumbent [or challengers].' Donovan v. Local 719, United Automobile, Aerospace and Agricultural Implement Workers of America, 561 F.Supp. 54, 58 [113 LRRM 2902, 2906] (N.D. Ill. 1982) [hereinafter "Local 719"]; accord Telephone Workers, 703 F.Supp. at 206, Usery v. International Org. Masters, Mates and Pilots, 538 F.2d 946, 949 [92 LRRM 3297] (2d Cir. 1976) [hereinafter "Masters, Mates & Pilots"], Liquor Salesmen's Union Local No. 2, 334 F.Supp. at 1369, 1377 [78 LRRM 2020], aff'd, 444 F.2d 1344 [78 LRRM 2030] (2d Cir. 1971) [hereinafter "Liquor Salesmen's Union"], Wirtz v. Independent Workers Union of Florida, 272 F.Supp. 31, 33 [65 LRRM 2924] (M.D. Fla. 1967). Regarding content, federal regulations interpret LMRDA §401(g) as 'prohibit[ing] any showing of preference' by union-financed publications through praise, endorsement, criticism or attack directed towards a candidate, 29 C.F.R. §452.75 (1994); accord McLaughlin v. American Fed'n. of Musicians, 700 F.Supp. 726, 734 [132 LRRM 2508] (S.D.N.Y. 1988) ('promotion of a candidate under §401(g) includes both affirmative statements about the candidate and negative references about the opposition.').
In addition to the timing, tone, and content, courts often consider 'the circumstances surrounding the challenged publications'. Am Fed'n. Musicians, 700 F.Supp. at 734 (citing Liquor Salesmen's Union, 334 F.Supp. 1377). In American Fed'n of Musicians, the court looked beyond the text of the challenged articles to consider the legitimate need for reporting on and discussion of an incumbent union president's activities in a union-financed newspaper, even though such reporting could impact an upcoming election. American Fed'n. Musicians, 700 F.Supp. at 734. The court held that 'the continued direct and indirect personal attacks [on the incumbent] ... constituted more than just reporting on issues that concerned the union.' Id. at 735.
Id., at 2364. See also, e.g., Camarata v. Teamsters, 102 LRRM 3053 (D.D.C. 1979).
In Martin, the Election Officer discussed the relationship between the 1995 version of Article VII, Section (8)(a) of the Rules(then contained in Article VIII) and the LMRDA standards. She stated:
For those publications where the Election Officer has determined Mr. Carey was a candidate, she must determine whether the union-financed publication was used either to 'support or attack' a candidate. In her analysis under Article VIII, Section 8(a), the Election Officer is guided by cases applying Section 401(g) of the ... LMRDA, which is incorporated into the Rules. ... See also, 29 CFR §452.75.
* * *
Adopting the test used by the federal courts and the Department of Labor in enforcing the LMRDA, the Election Officer looks to the 'tone, content, and timing' of the disputed materials to determine what constitutes campaigning. See, e.g., Ruscigno, P-65-JC37-EOH....
There are numerous other Election Officer cases addressing this issue, and applying the LMRDA "tone, timing, and content" standard. See e.g.. Simpson, P195 (November 15,1995) Brown, P481 (March 15, 1996), and Clark, P473 (1996).
We now summarize the facts as found in our investigation, to which these standards must be applied.
B. Findings of Fact
1. The FM-IBT Local 104 Labor Dispute. In the early Fall of 1999 a bitter labor dispute was in progress in Tolleson, Arizona between Teamsters Local 104 and Fred Meyer, Inc. (FM). According to its website and that of Kroger, Inc., FM merged with Kroger on May 27, 1999, with FM supermarkets continuing to be marketed to the public as "Fred Meyer" stores, but with the operations of Kroger and FM to be integrated. Earlier in 1999, FM had just merged a grocery warehouse at which Local 104 was recognized with a non-union operation. After bargaining for a new Local 104 contract at the merged warehouse broke down, FM contracted out operation of the merged warehouse to non-union CSI, which unilaterally imposed terms and conditions of employment. Local 104 struck, effective October 1, 1999.
Apparently in August 1999, IBT warehouse director Kenneth Hilbish sent a memo to General President Hoffa, IBT Secretary-Treasurer Tom Keegel, and assistant to the General President Carlow Scalf:
...Kroger is holding on its position that they will third party the Phoenix division on September 1 if they do not have a contract. Local 104 has filed a ULP because of the threat of outsourcing in negotiations. IBT VP's Santangelo and Cammack are also having trouble with Kroger transferring work to non-union facilities. I propose the following:
When Kroger third parties Phoenix, allow for Local 104 to extend picket lines up the west coast for 1 solid week of work stoppages. If that fails to break Kroger into submission, extend the lines east to all facilities, and test a few third party operations.... Movement of the 104 lines across the east and west will wreak havoc on their operation, and prevent the payment of strike benefits everywhere except Phoenix.
E-9A.
By September 7, 1999, Hilbish reported to the top leadership that he was calling a national meeting in Chicago on September 20th for the purpose of encouraging a plan in which:
Local 104 will go out on a ULP strike. Local 104 will extend its picket lines to the following Locals for approximately one week: 63, 166, 495, 572, 630, 848, 952, and 162, 206, 223, 305. (599 and 252 do not have language to honor pickets, however; perhaps a day of chaos at those facilities will help.
Upon the 5th or 6th day of the above lines being in place, move the Local 104 lines to the following other Kroger Locals: 89, 135, 175, 337, 968, and 984. The lines listed in number 1 will come down after about 7 days maximum. And the lines listed above stay in place several days. (maximum 7). Then the addition of these third partied locals can be added, if needed. Locals 100, 135, 171, 327, 337, 413, 661, 745, 528. The third partied locals can be a test, otherwise, Kroger will believe any third partied operation is safe and will have incentives to keep third partying.
The intent of this ULP spread of lines is to force Kroger to withdraw their intent to third party the operation.
E-9B. Portland, Oregon Joint Council 37 is made up of 5 Locals: 162, 206, 223, 305, and 962.
The September 20, 1999 meeting in Chicago did take place. In attendance were 28 local union leaders from about 18 locals around the country, Hilbish, and several other IBT officials. Among the local attendees were Secretary-Treasurer Tom Leedham and Gene Blackburn from Local 206, and representatives from three of the four other Joint Council 37 affected locals. By several accounts, Hilbish's proposal to widely extend the Local 104 picket lines was received with considerable skepticism by a number of those in attendance, and by the General Counsel's office, which had serious reservations about extending lines from an FM strike to Kroger locations.
Twice in October, Southern California based Joint Council 42, led by IBT Vice President Jim Santangelo, mounted brief picket lines at several Ralphs Grocery Company locations in California because Ralphs was perceived by the union to be an "ally" of FM, handling the transit of goods that had been handled through Arizona. In fact, Ralphs had become a subsidiary of FM in 1998. In Stockton, the picket line was withdrawn after attorneys for Ralphs informed Joint Council 42 on October 6th that:
The picketing conducted by Local 439 is directed at a warehouse operated by Dart Enterprises. Ralphs has no role in the operation of that warehouse....
E-9G. In Southern California, attorneys for Joint Council 42 told Ralphs on October 26, 1999 that:
By performing struck work, Ralphs has become an ally of FM/CSI.
* * *
The Union's picket line has been sanctioned by Joint Council of Teamsters Nos. 3 and 42, and the Los Angeles ... AFL-CIO.
E-19A. After a further exchange of lawyer letters, (see E-21, 23) by letter of October 27, 1999 Ralphs' attorneys informed the Teamsters that:
the Ralphs Grocery Company hereby notifies you and your clients that it has relinquished the work of supplying the PriceRite stores from its Southern California Distribution Centers and that no further loads will be delivered from Ralphs distribution centers to PriceRite stores.[5]
E-26. Both incidents of picketing spawned charges and suits, which were ultimately withdrawn and/or settled.
While no other picketing seems to have occurred (except in Portland), Hilbish did attempt to develop nationwide handbilling of Kroger stores regarding the Local 104 dispute during October, as well. See E-14A.
2. The Attempt to Extend Picketing to Portland. By mid-October, 1999 IBT General Counsel Patrick Szymanski was already directly involved in the legalities of the various efforts to extend the Local 104 picket lines. At Szymanski's request, Teamster attorneys based in Milwaukee were engaged in gathering "documents which will prove integration of operations between Phoenix and other Fred Meyer locations." E-10.
On October 15th, the Milwaukee lawyers faxed a letter to the attorney for Portland Joint Council 37, Richard Carney, referencing a conference call for October 18th, with Szymanski and Carney. Attached to the letter is a legal memo addressing:
A. Whether Local 104 may lawfully picket and take other economic action against the Tolleson Warehouse, where Fred Meyer has allegedly 'transferred the operation of the warehouse' to a 'third party' known as CSI.
B. Whether Local 104 may lawfully extend its picketing activities to other Fred Meyer operations/warehouses in other states?
E-11. The memo concludes that Local 104 can lawfully picket the Tolleson facility, and that integration with and control of Tolleson by FM suggests that picketing FM in Portland would also be legal. According to Szymanski, Carney was not convinced that the extension of picketing to Portland was legal.
On October 19, 1999 Ken Hilbish notified Local 104 that "[t]he extension of picket lines to all Fred Myer [sic] facilities in Portland, OR. has been approved and sanctioned by the IBT Warehouse Division. The sanctioned picket lines should be extended immediately to those facilities." E-12.
According to Tom Leedham, at about this time, Joint Council 37 President Darel Aker received notice that Local 104 pickets were being dispatched to Portland. Aker made inquiries and was able to stop that process. Indeed, on October 19th, Aker called an emergency meeting of Joint Council 37 and attorney Carney to take place on the following day. Attached to the meeting fax was a copy of the Hilbish authorization letter. E-13.
On October 20th, General Counsel Szymanski issued a legal opinion memo to Hoffa and Hilbish in which he "concluded that Local 104 may lawfully extend its picketing to Fred Meyer operations at other locations, including, in particular, the Fred Meyer Warehouse in Portland, Oregon." E-13. Szymanski also drafted a letter for Hoffa's signature, which was sent on October 21, 1999 together with the legal memo. The letter is addressed to all six of the officers of Joint Council 37, including Leedham. It states:
It is absolutely necessary for the Union to support the members of Local 104. The decision to subcontract the work in Tolleson and eliminate good, union jobs is part of a calculated, deliberate plan to eliminate union representation and standards that have been established through years of bargaining. We believe that the Company will eventually follow the same plan elsewhere, including Portland, if we do not stop them in Tolleson.
Accordingly, Warehouse Division Director Ken Hilbish and I have authorized the extension of Local 104's picketing against Fred Meyer to the Fred Meyer Warehouse in Portland. I ask Joint Council 37 to sanction this extension of the picketing to the Portland Warehouse and I ask for the support of each of the Local Unions that have members employed at the warehouse. We are aware that some question has been raised concerning whether picketing by members of Local 104 at the Portland Warehouse may be unlawful secondary activity not protected by the National Labor Relations Act. The IBT Legal Department has carefully reviewed the law and all of the facts and has consulted lawyers for Local 104, lawyers for the Warehouse Division, and lawyers in the Pacific Northwest. The Legal Department advises that the extension of the picketing to Fred Meyer is lawful primary activity, protected by the National Labor Relations Act. A copy of the General Counsel's memorandum is enclosed.
The successful resolution of this dispute is critical to rebuilding the strength of this Union and the economic survival of our members in Local 104. I trust that you will not play petty politics with the lives of our brothers and sisters in Arizona, will put aside any internal differences, and will sanction and support the extension of the picketing to the Portland Warehouse. I solicit and expect your support in this important struggle.
On October 22, Darel Aker replied to Hoffa's letter. Aker stated:
Several issues need to be addressed prior to Joint Council No. 37 authorization. These include, but are not limited to, contrary legal opinions regarding the extension of picket lines, unclear objectives, conflicting information regarding ownership of the Tolleson facility and poor communication regarding what appears to be an evolving strategy. Resolution of these issues are of critical importance to the continued economic survival of 1,200 Teamsters employed by Fred Meyer in this Joint Council.
* * *
Additionally, we have requested a meeting with Local 104 and Warehouse Division representatives to discuss and agree on a plan of action.
* * *
Today, we were informed by IBT Warehouse Division Director Ken Hilbish that contrary to previous plans, vaguely outlined at a meeting in Chicago involving Locals from around the country, only the Portland Distribution Center will be targeted for extensions. This is new information that is of serious concern to our membership. It now appears that Local Unions are not being targeted who have contracts with Kroger, CSI, Tibbet and Brittin, Ruan, Ralphs, Smiths, Fred Meyer locations other than Portland or any other of the literally dozens of entities involved. If all of these distribution centers are not targeted and Portland is, then wouldn't it be reasonable to involve the Portland Locals and their Joint Council in the strategy and planning.... To date, we have not been a party to the strategy discussions and this morning, Friday, we were told that pickets would be here Monday....
In addition... the Joint Council sought and received a legal opinion from our counsel which differs significantly from the IBT legal analysis received here with your letter of October 21. We have enclosed the memo of law from our legal counsel for your review. Considering the divergent opinions..., the legal dilemma could be solved with an agreement from the International Union to indemnify Joint Council 37....
E-15. Leedham was not a signatory of this letter, which was "cc'd" to 8 IBT officials and most of the Teamster lawyers involved.
The fact that Hilbish - at least - was prepared to forge ahead with the picket line with or without consent of Joint Council 37, is evidenced by an e-mail that was sent on October 22nd to "All Kroger Locals and Third Party Operations," which states:
Local 104 picket lines have been extended to the Portland, Oregon area. There is going to be a national Kroger leafleting campaign. Leaflets will be sent to your local within 48 hours....
E-16 For whatever reason, picket lines did not go up at FM in Portland on October 25th. But, the pressure on Joint Council 37 increased.[6]
On Monday, October 25th, another letter to the six Joint Council 37 officers arrived from General President Hoffa. This letter concluded:
The absence of your support weakens the Union, gives aid and comfort to the employer, and undercuts the efforts of Local 104 and the 250 brothers and sisters on strike in Arizona.
E-17. On that same day, Hilbish and Local 104 official Andy Marshall arrived in Portland with a vanload of pickets, and proceeded directly to a face-to-face meeting with the Joint Council 37 officers while the pickets waited in the parking lot. In a confidential memo to Hoffa, Scalf, and Szymanski, Hilbish described the encounter:
As you are aware, I met with Joint Council 37 on October 25, 1999, to discuss the extension of picket lines. Joint Council 37 was not very receptive, and tried to criticize and stall any attempts to discuss a mutual strategy of extensions. The bottom line was they have been aware of this for almost 2 weeks and have not acted on it, and still do not want to act on it.
After approximately 3 hours of criticism against the IBT and the Administration, I informed the entire Joint Council the lines would be put up today at 6:00 am, with or without their sanction. I also made it plain we would hand out the letters from the General President and myself, sanctioning the line, and they could explain to their members why the [sic] had no 'backbone.' After this meeting, I am positive they are using their attorney's opinion as a crutch, to not honor pickets. Several Joint Council members brought politics into the issue, however, our people never once allowed the discussion to get political. We allowed their comments to go by with no response, since I was in tdu central.
Present at that meeting also were attorney Carney, and several other Local officials from Joint Council 37.
Notes of the meeting taken by a Joint Council 37 representative make it clear that Joint Council 37 President Aker was joined by a number of the other Joint Council 37 attendees in expressing opposition - or at least open skepticism - with Hilbish's plan to extend the line. Leedham's role in the meeting, according to these notes, was purely supportive of Aker et al. At one point, in response to a suggestion from attorney Carney that the lawyers discuss this matter further, Hilbish is reported to have said "the General President wants the extention [sic] up here now...," to which Local 104's Marshall added, "I'm acting on the direction of my legal and the General President." E-18.
Near the end of the meeting, Aker reportedly said: "our council [sic] is going to review the materials. Can't get that done today. We also want to take a look at what's going on in CA.," to which Hilbish replied, "we are going to put the lines up tomorrow 6:00 am." E-18.
According to Hilbish's memo to Hoffa:
After my departure, Darrel [sic] Akers asked for 24 hours to put the thing together. ... Darrel is in a very bad position here, with a large contingent of people on his J.C. not wanting to honor for their own personal reasons. Andy Marshal [sic] and [Ass't. Warehouse Director] John Williams granted him 24 hours, with the understanding the lines go up Wed. morning, regardless of their findings and vote to sanction.
E-19.
Ken Hilbish has a strong distrust of Tom Leedham, his predecessor as Warehouse Director, and is of the opinion that the Portland leadership wouldn't go along with the plan to extend the Local 104 picket lines "in order to damage General President Hoffa." Hilbish considers it to be "clear that this whole thing was political." Hilbish feels that under the Carey-Leedham leadership "Kroger raped this union. Leedham never did jack. That's the politics of 'what about me?'" The refusal, led by Leedham, constituted a "dirty attempt to circumvent the President's authority and screw this administration...," and "make Hoffa look bad." Leedham is "an agent of TDU, which is doing anything they can to discredit the Hoffa team."
The distrust is mutual. Leedham is convinced that the pressure to extend the line to Portland was purely and simply an effort to destroy Leedham's local. Hilbish "talks tough, but has no plan," and - as an agent for Hoffa - intentionally left Joint Council 37 "out of the loop" during the planning process. According to Leedham, it is the Joint Council that must decide whether to authorize extension of picket lines into its jurisdiction. See E-4. In order to "get Leedham," the Hoffa administration overran the Joint Council's authority and put up a non-sanctioned picket line at the FM facilities in Portland.
This controversy came to a head on October 27, 1999. Joint Council 37's officers voted by a vote of 2 yes and 4 no not to sanction extension of the Local 104 picket line. See E-24. According to Leedham, Aker did not vote, since the President only votes to break a tie. Leedham reports that the "yes" votes came from locals not at FM. Joint Council 37 President Aker immediately faxed a letter to Hilbish informing him that the line extension was not approved.
The Local 104 picket line went up that day at FM in Portland without Joint Council 37 approval. Because Leedham and others had informed members that the Local 104 line was not sanctioned, Joint Council 37 Local members crossed the line and went to work. After one day, the Local 104 pickets left Portland.
On October 27th General Counsel Szymanski faxed a letter to Joint Council 37 attorney Carney, which states in part:
If the Joint Council and the involved Local Unions decide to refuse support of these striking members then they should be honest enough to say so. They should not be hiding behind a lawyer.[7]
On October 28th, Seattle Joint Council 28 President and IBT Western Regional VP Jon Rabine came to Portland and met with Aker and the four Joint Council 37 people who voted "no." According to Rabine, Leedham did most of the talking for Joint Council 37, making points that the extension of the line was illegal, that the IBT was providing no leadership and Hilbish was incompetent. According to Rabine, he stayed away from partisan politics, because the membership "needed to be together" in this situation. The naysayers did not change their minds, but, according to Rabine, Clayton Banry stated that he would change his vote if the NLRB approved the strike extension as legal.
Several days later, Joint Council 42 President Santangelo sent a letter to the Joint Council 37 officers:
We understand Brothers Niedermeyer, Leedham, Banry, and Andrews voted not to sanction Local 104's extended picket line.
Because Local 104's dispute directly impacts Teamsters across the country and, particularly, the various food locals who are members of the Joint Council, we were extremely disappointed to learn of your decision.
E-29. After recounting the success just achieved by the Joint Council 42 picketing of Ralphs, which forced Ralphs to stop handling the struck goods, Santangelo concluded:
Hopefully, this experience will provide further reason for those who voted against Joint Council 37's sanction to now reconsider.
Id.
The response to Santangelo came directly from Leedham:
Your willingness to sacrifice Teamster jobs in Phoenix and Portland for political purposes apparently knows no bounds.
However, you underestimate Teamster officers, activities and members. They see this episode as either the most despicable of blatant politics or just one more example of the IBT's incredible incompetence.
I see it as both.
E-30. Apparently determined to "give as good as he got," Santangelo "took off the gloves," as well in a November 2nd response:
As a former International Vice President and the Director of Food, Warehouse, and Miscellaneous, I cannot believe that you would vote NO on allowing Local 104 to extend its picket lines to your area.
I wonder where this union would be going if you were ever elected General President. Your actions were uncalled for and damaging to the hundreds of Teamsters who lost their jobs.
How could you call yourself a leader when you turned away when our brothers and sisters needed you most....
P.S. You lead by example!
Emphasis in original. To E-31. Santangelo, Leedham was a "man who wanted to be General President," but "called no meetings of the Warehouse Division." As a Vice President, Leedham "didn't think first about the protection of employees."
At this point, IBT Western Region Vice President Chuck Mack chimed in, as well. On November 2 Mack posted the following on his website:
Incredible! We've just been advised that Teamsters Joint Council 37 has refused to honor Local 104's picket lines. We understand the vote was 4 against; 3 in favor. Darel Aker, Walter Engelbert and Jerry Stuart supported Local 104's members, while Tom Leedham, Clayton Banry, Tony Andrews, and Roger Niedermeyer told them no. All four of those voting against represent part of the workforce at Fred Meyer. Setting aside personalities and politics, the decision is difficult to understand. Especially in light of the correspondence and meetings that have been held to discuss possible extension.
Follow this link to a good portion of the correspondence. Read and weep!
Emphasis in original.
E-32.
The next few days saw both the TDU convention, at which Leedham headlined, and the GEB meeting which issued the Resolution condemning Joint Council 37's refusal to sanction the line extension.
According to Joint Council 42 President Santangelo, he was a leader in the effort to have the Resolution issued, and in the suggestion to the communications people in Washington that the story of Joint Council 37's refusal to be publicized in the official Teamster press. According to Santangelo, he wanted to make sure that everybody knows that "this President is pressing for the extension of lines. This administration is doing that. The last one didn't." Meanwhile, attorneys Szymanski and Carney continued to trade opinions concerning the legality of the Portland picketing. See E-35, 37.
3. The Challenged IBT Publications. The official publications of the IBT are developed by the Communications Department in Washington. In November-December, 1999, the Director of Communications was Chip Roth. Roth reported to Carlow Scalf and General President Hoffa. The Communications Coordinator under Coyle was Bret Caldwell. Caldwell was hired by Joan Coyle (the since departed assistant department head) in April 1999 from his job at the National Abortion Rights Action League.
Caldwell was principally responsible for the creation and editing of the Warehouse News that appeared in December 1999. While some editions of this newsletter had been issued to members of the union employed in the jurisdiction of the Warehouse Division during the Carey administration, the December issue was the first one issued under Hoffa.
According to Caldwell, the Local 104 strike was a current topic of conversation and interest around the union in the fall of 1999. In addition, Caldwell talked to Jack Barnard, Hilbish's assistant based in Atlanta, and to Andy Marshall at Local 104 about what was going on. When asked why an edition of Warehouse News appeared for the first time in December, Caldwell stated that these newsletters were supposed to be quarterly, and he was under general pressure to get something out.
The editor of The Teamster magazine is Brian Rainville. Rainville was hired in August 1999 after he answered a job posting on the web. His prior employment was as the Communications Director for the Professional and Technical Engineers Local in Seattle.
While The Teamster article was published a month or so after the Warehouse News piece, it appears that the creation of the text may have started with Rainville and the magazine article. While the Warehouse News went to press on November 24th, an early disk version of Rainville's magazine copy is dated November 17th. E-37B. In any event, clearly the copy is related.[8]
The November 17th draft of Rainville includes the "box" story about Joint Council 37, but does not include any reference to Leedham or his "leadership" of the refusal. A later version dated November 18th includes no change in that regard.
It remains unclear whether Rainville, Caldwell or one of the several writers working in Communications created the initial drafts of this story. However, the inclusion of the references to Leedham did not originate at their level. Bret Caldwell remembers that Communications Director Chip Roth proposed the Warehouse News headline "Former Warehouse Director Refuses to Support Striking Teamsters," and explained to Caldwell who Leedham was, and that this was a "bigger story" than just about a Joint Council decision. See E-38A. Rainville also recalled that Roth directed that the "box" quotes from Hilbish and Santangelo must be identical in the publications.
Brian Rainville also confirmed that the text of these publications would have been provided to the office of General President Hoffa (and probably to his assistant Carlow Scalfsee E-38), and an outside public relations consultant - Rich Leebove - who has a contract with IBT and who was also a figure in the Hoffa campaign. The magazine copy was also reviewed by General Counsel Szymanski, who registered no objection to it.
When asked why the Leedham angle was appropriate for publication, Rainville responded that "when union leaders don't support a picket line, that's heinous." He continued that it was "appropriate to tie Leedham to Carey because it's an identifier. It's a fact that Carey was thrown out of the union." Rainville also conceded that Roth had "talked to him about the 1998 election," and that "Roth is an avid supporter of Jim Hoffa."
When asked the same question, Bret Caldwell indicated that his understanding of the Warehouse Division's "principal core platform is to end subcontracting and stand up. Here you have a prior Director who isn't, and this isn't the first time. This administration is moving in another direction."
The final published versions of the Warehouse News and The Teamster articles, which best speak for themselves, are attached hereto as Appendices 1 and 2. See E-1 and 2.
In response to the Warehouse News article, which appeared in early December, Leedham wrote a letter to Joint Council 37 President Darel Aker:
While the first issue of Teamster Warehouse News is filled with self-serving half-truths on a number of subjects, my purpose in writing is to correct one complete falsehood. ... Teamster Warehouse News is mailed to all local unions and many, if not most, individual members of the approximately 400,000 member trade division. Page 4 ... incorrectly portrays the vote as follows:
'No' Support for Pickets to end subcontracting
Local 162, Roger Niedermeyer
Local 206, Tom Leedham
Local 223, Clayton Banry
Local 305, Tony Andrews
'Yes' for Support of Pickets to end subcontracting
Local 324, Darel Aker
Local 670, Walter Engelbert
Local 962, Jerry Stuart
As you know, the vote itself was not a statement regarding subcontracting and the real numbers were quite different. The minutes [E-24] reflect
* * *
Two (2) yes; four (4) no.
* * *
The Joint Council Bylaws ... allow for a vote of the presiding officer or the Joint Council President only in situations of a tie. With the four affected Locals voting 'no' it would be impossible for you, the President, to have voted 'yes'....
In closing, Brother Aker, the four Locals affected by this action have appreciated your support in this matter from the beginning. It's especially disturbing to all that our International leadership has chosen to use Union resources to spread these distortions; disturbing, but not surprising.
E-39.
Leedham followed up this letter with a column in Joint Council 37's newspaper, The Oregon Teamster under date of December 18, 1999, in which he restated his position and reproduced the letter to Aker. E-40. Local 162's Roger Niedermeyer also addressed this issue in his column. In a tongue-in-cheek salute to Ken Hilbish, Niedermeyer said:
The publication of all votes of the General Executive Board would establish a record comparable to the public voting record of the members of Congress. I applaud Ken Hilbish in his capacity as International Warehouse Director in taking this innovative step in the right direction. Let's make sure this public record and membership's right to accountability is not a one time event!
Id.
Pressure from IBT officials to reverse Joint Council 37's position continued into the new year, with a letter requesting reconsideration from Santangelo to Aker dated January 21, 2000(E-43), and a similar request from Rabine to Aker dated February 4, 2000. E-44.
On February 16, 2000, the IBT announced the successful conclusion of the strike with a new collective bargaining agreement with IBT. E. 45. On the following day, Jim Santangelo sent a letter to Leedham which was also posted on the Joint Council 42 website:
Your reply to my letter dated November 2, 1999, was the same as always, 'It's Political'. Get a life big buy, stand up and say how you really feel, get off pushing the buck with the same answer. What the hell are you ashamed of?...
Ask yourself this: What did you ever do to motivate this union when you were food director?
Never, you never even once called a food meeting.
Let's talk about the handout ("FACTS REGARDING THE PROPOSED EXTENSION OF LOCAL 104 PICKET LINES") that your associates at T.D.U. distributed when they visited the food members in Southern California.
"HISTORY"-Last sentence:
I most certainly believe that Oregon Teamsters have always honored other members' picket lines. However, in the case of Kroger, this time your leadership failed to get Oregon Teamsters to respect other picket lines from Local 104.
"NO PLAN"-paragraph 1, first sentence:
Here you go again blaming the International saying it's all political.
"NO PLAN"-paragraph 2, first sentence:
You say only Portland was chosen for picketing; this shows how out of touch you are with what is going on. Local 104 brought members to Southern California. My Local and Local 630 walked out - a total of 400 members supported Local 104.
"LEGAL ISSUES"-
Here you go again making excuses: 'If the IBT's counsel is wrong, then members' jobs are at risk.' Why the hell would you even care, Tom, what your legal counsel said, you weren't going to support the extension of picket lines from day one. Some people can always find any excuse to avoid doing anything.
"CONCLUSION"-
Blaming other people, you just don't know when enough is enough. Ken Hilbish has done more in one year for this division then you did in seven.
As you know by now Local 104 has won their strike with Kroger. No thanks to you. Your cooperation probably would have insured an earlier and possibly stronger agreement. As hopefully you know, the road to good contracts is littered with potholes. In the future why don't you try being part of the road crew to help smooth out our future instead of excavating mine shafts and laying land mines.
4. E-46 and 46A.
The Washington Teamster Article. The column "President's Message" by Joint Council 28 President and IBT VP Jon Rabine appeared in the February-April edition of Joint Council 28's newspaper The Washington Teamster. E-3. Rabine's involvement in the effort to get Joint Council 37 to approve the Local 104 line extension has already been outlined. A copy of Rabine's column is attached hereto as Appendix 3.
According to Rabine, he wrote the entire column without editorial input from anyone else. Nor did he "talk to anyone in D.C." about issuing it. According to Rabine, he placed Leedham at the head of the "hall of shame" because when Rabine was attempting to get Aker to sanction the Portland picketing, Aker said he had "problems with Leedham because Leedham had the largest number of people, about 600." Rabine also explained that Leedham - as "the Warehouse Director under the prior administration - negotiated the Local 104 contract," which in Rabine's view did not adequately protect Local 104 members at Tolleson from subcontracting.
C. Discussion
1. Alleged Improper Campaigning And Use of Union Resources To Attack Leedham. The threshold issue on the merits of this protest is whether the campaign of pressure on Joint Council 37 in the Fall and Winter of 1999-2000 -- which reached its zenith with the arrival of Hilbish and Local 104 picketers in late October -- was a calculated partisan attempt to use union resources to damage Tom Leedham's nascent candidacy for IBT General President.[9] For the reasons set forth below, the conclusion of the Election Administrator is that the pressure campaign on Joint Council 37 was not so motivated.
It is well established under the LMRDA that "[d]uly elected union officials have a right and responsibility to exercise the powers of their office and to advise and report to the membership on issues of general concern." Camarata v. Teamsters, 102 LRRM 3053, 3060 (D.D.C. 1979). Application of the Rules has been consonant with the LMRDA:
restrictions on campaigning must not be read so broadly as to restrict the right and responsibility of union officials to conduct their official business nor prohibit other members and subordinate bodies from criticizing the policies or official conduct of those officers.
Gilmartin, P32 (January 5, 1996), quoting Martin.
The evidence in this case establishes by a preponderance that the development of the Local 104 picket line extension strategy arose from the Hoffa administration's general effort to stop the "bleeding" of warehouse jurisdiction. The leadership was deeply concerned about the growing practice of the subcontracting of warehouse and distribution jobs to non-union third party operations. In this regard, Kroger was seen as the chief exemplar, and Kroger controlled FM.
Even before the Tolleson strike began on October 1st, Warehouse Director Hilbish had requested General President Hoffa that "[w]hen Kroger third parties Phoenix," he authorize "Local 104 to extend picket lines up the west coast for 1 solid week of work stoppages. If that fails ... extend the lines east...." E-9A.
This initial plan proved to be over ambitious, and foundered on the realities of legal limits on secondary picketing/boycott activities and apparent inertia among local leaders who attended the September 20th meeting in Chicago. However, the seriousness of the effort is evidenced by the actual picketing which took place in Stockton and Southern California in October and the resulting litigation. That picketing activity, and an effort to leaflet Kroger retail operations were ongoing at or about the same time as the Hoffa letters, Hilbish's visit, and the unsanctioned Local 104 picketing in Portland in late October.
To be sure, there was a serious debate between counsel for the IBT and Joint Council 37 over the legality of the picket line extension. That lawyers might differ on the legality of the Portland picketing is not at all surprising, given the complexity that surrounds questions of alleged unlawful secondary boycotts under Section 8(b) of the National Labor Relations Act. But for present purposes, the question is not whether IBT's lawyers or Joint Council 37's lawyers were correct; instead, the question is whether the legal position taken by IBT and its counsel was so frivolous as to give rise to an inference that its position with respect to Joint Council 37 was improperly motivated. That is not the case, and the legal position of the IBT cannot be cited as an effort to "prop up" an otherwise blatantly political attack.
Further support for our conclusion as to the legitimacy of IBT's pressure tactics on Joint Council 37 arises from the fact that FM's headquarters and facilities were located in Portland, and that Portland FM officials were involved in the dispute in Arizona. Even Joint Council 37's counsel conceded "that Local 104 continues to have a labor dispute with Fred Meyer because of the action of Fred Meyer and subcontracting of bargaining unit work...."E-15.
It is also important to note that the intense pressure evident in this case was not aimed only at Tom Leedham, but at all of the Joint Council 37 officials. Indeed, at the height of the controversy, it was Joint Council 37 President Aker -- reputedly a Hoffa supporter -- who spoke on behalf of the majority view of its officers, a view buttressed by the vigorous arguments of Joint Council 37's attorney.
This is not to say that the intra-union adversaries were unaware of the partisan political ramifications of their dispute as it involved Tom Leedham. Hilbish's reference to "tdu central," Hoffa's injunction against "petty politics," and Santangelo's website letter of November 2, 1999, all evidence the fact that Leedham was perceived as a key political opponent.
However, in this case, Leedham and the other Joint Council 37 officers were not being pressured or criticized as political candidates. Instead, Leedham - the only candidate to date among the Joint Council 37 officers - as well as his Joint Council 37 counterparts, were being pressured for reasons directly related "to the regular functions, policies and activities of incumbents as officers as opposed to their activities as candidates. ... [This conclusion] is naturally complicated by the fact that 'policy issues within the union are frequently adopted as campaign issues in the campaigns of the International officers.'" Hoffa, P871 (September 13, 1996), quoting Szymanski, C9 (July 16, 1996).[10] However, "…mere criticism, in and of itself, does not rise to the level of campaigning. See Blake, P245 (January 12, 1996) aff'd, 96 EAM 54." Cetinske, P506 (1996).
For these reasons, and based upon the entire record, the Election Administrator concludes that the protest allegation asserting that the concerted effort led by Hilbish to get Joint Council 37 to approve the extension of Local 104 picket lines to Portland did not constitute "[c]ampaigning ... involv[ing] the expenditure of Union funds" in violation of Article VII, Section 11(b) and (c) of the Rules. Accordingly, that portion of the protest is DENIED.
2. Alleged Improper Criticism of Candidate Leedham in Union Publications.
Whether the IBT and Joint Council 28 articles that are the subject of this protest improperly "attack[ed] any candidate or the candidacy of any person..." is necessarily influenced by the fact that the underlying controversy has been found to be a legitimate effort by the Hoffa administration to advance certain legitimate trade union goals. It is against this background that we must review the "tone, timing, and content" of the three articles.
In an extensive treatment of the "tone, timing, and content" test as applied through the Rules, Election Appeals Master Conboy noted in Martin, 95 EAM 18 that:
An incumbent ... has "a right and responsibility," as a union officer, to "advise and report to the membership on issues of general concern" to the membership, and is "entitled to use union publications to express [his] view's." Camarata v. IBT, 478 F.Supp. 321, 330 (D.D.C. 1979), aff'd, 108 LRRM ... 2924 (D.C. Cir. 1981).
* * *
With regard to the tone and content prongs of the inquiry, courts have held that newsworthy articles or articles which contain purely factual information are generally permissible. McLaughlin [v Am. Fed. of Musicians,] 700 F.Supp. at 735 ('objective news reporting is protected and encouraged under the LMRDA.')
See also, Reich v. Local 843, 869 F.Supp. 1142 (D.N.J. 1994); and Balanoff v. Donovan, 569 F.Supp. 966 (N.D. Ill. 1983). Therefore, to the extent that the articles at issue factually reported a newsworthy event, and the views of IBT officers concerning that event, they are at least presumptively appropriate.
The Warehouse News article includes in the "box" entitled "Teamster Unity Stops Kroger Scheme," that:
However, Teamsters Joint Council 37 decided not to support the striking Local 104 members. The Joint Council voted not to allow an extension of the Arizona Teamster's picket line into the Pacific Northwest.
Citing the impact Local 104's dispute has on Teamsters across the country, Santangelo said he was "extremely disappointed" to learn of the Joint Council's decision...."I don't understand why some locals are afraid to fight against Kroger/Fred Meyer corporate greed and the company's elimination of good union jobs," said Hilbish. "It appears that some locals prefer not to rock the boat and want to take the easy way out. This is business unionism at its worst."
This "box" consists of facts and critical reaction by Hoffa administration officials to those facts. Leedham is not mentioned.
The critical reaction included in the "box" portion of the Warehouse News, while sharp in tone ("business unionism at its worst") is not directed individually at Leedham. This criticism thus does not approach the ad hominem condemnation of opponents "as anti-Union, ... immoral, and self-seeking..." which occurred in Hodgson v. Liquor Salesman's Union, Local 2, 334 F.Supp. 1369 (S.D.N.Y. 1971), aff'd, 444 F.2d 1344 (2d Cir. 1971). In any event, "even if the [publication] ... did reflect negatively on [a candidate], ... it is not an attack on his candidacy." Cook, P455 (March 12, 1996) citing Blake, P245 (December 18, 1995), aff'd, 96 EAM 54. Based on these precedents, therefore, the Election Administrator concludes that the contents of the Warehouse News "box" do not violate Article VII, Section 8 of the Rules.
The other implicated portion of the Warehouse News is entitled "Former Union Warehouse Director Refuses To Support Striking Teamsters." Its text is as follows:
When requesting support to extend the Kroger/Fred Meyer strike to the Pacific northwest, Phoenix Local 104 expected the support of Joint Council 37. Instead, they got a slap in the face.
Led by Tom Leedham, President of Portland, Oregon Local 206 and former Warehouse Division Director under disgraced former Teamsters President Ron Carey, the Joint Council voted not to support the strikers and extend pickets to Oregon.
The Hoffa administration is working closely with the strikers and other local unions throughout the United States to end subcontracting and increase organizing at distribution centers and among drivers. The prior administration, under Leedham's leadership, failed in every attempt to end subcontracting of Teamster warehousing jobs. Though Leedham never attempted to end subcontracting by extending picket lines, he refuses to support this innovative approach.
The Hoffa administration calls on Teamster members nationwide to support our brothers and sisters on the picket lines at Kroger/Fred Meyer.
Joint Council 37 Vote
Listed below are the votes of the officers of Joint Council 37 in Portland, Oregon on the request by Local 104 to extend picket lines into their area.
'No' Support for Pickets to end subcontracting.
* Local 162, Roger Niedermeyer
* Local 206, Tom Leedham
* Local 223, Clayton Banry
* Local 305, Tony Andrews
'Yes" for Support of Pickets to end subcontracting
* Local 324, Darel Aker
* Local 670, Walter Engelbert
* Local 962, Jerry Stuart
This article is unmistakably an attack on Tom Leedham and his record as "President [sic] of ... Local 206 and former Warehouse Division Director under disgraced former Teamsters President Ron Carey...." In addition to the misidentification of Leedham as "President" rather than secretary-treasurer, and the apparently inaccurate addition of Darel Aker as a "yes" vote to extend the lines (the vote was 4-2, Aker not voting unless a tie), the article represents that Leedham "led" the effort not to extend the lines, a questionable assertion. Moreover, Leedham's "bad" record is contrasted with glowing praise of the Hoffa administration.
It is nonetheless the case that:
[E]lected union officials are entitled to use union publications to express their views and to have their union activities reported in said publications. They are not ordinarily required to give space therein to the expression of contrary views.
Camarata v. Teamsters, 102 LRRM 3053, 3060 (D.D.C. 1979). The decision in Saavedra, P485 (March 5, 1996), illustrates this point. There, a union-funded letter to members criticizing the election protests of previous incumbents, and labeling them as a "group of malcontents" who don't "care about the will of the membership or how much it will cost you in time and money..." was found not to violate the Rules, because the issue addressed is of legitimate concern, and the criticism was not of the individuals as candidates. See also, Vandak, P362 (February 22, 1996), aff'd, 96 EAM. As the Election Officer held in Vandak, when articles in union-financed publications cover issues of legitimate concern to the membership, the fact that the articles contain "criticism of a candidate, in and of itself, does not rise to the level of campaigning." Quoting Blake.
However, where "articles were distinctly biased in favor of the incumbents [and] ... [t]hey sought to praise the incumbents and discredit the opposition ... [and] [t]he facts ... were not reported in a purely factual, unbiased manner...," an LMRDA violation may exist. Hodgson, at 1381. See also Martin.
In this case, the "Former Union Warehouse Director..." article approaches the line between legitimate reportage and improper campaigning for two reasons: because the facts regarding the underlying legitimate policy dispute "were not reported in a purely factual, unbiased manner," and because of the comparisons contained in the article between candidate Leedham and candidate Hoffa.[11]
In order to determine whether this Warehouse News article violates Article VII, Section 8(a) of the Rules, however, the timing of the article in relation to the 2000-2001 delegate and International Officer elections must be considered. In Judge Conboy's thorough discussion of the law in this area in Martin, he reviewed several publications that he found "come close to violating the Election Rules and LMRDA." Id., p. 14. He concluded:
if these articles were published at or near the time that the delegate election process commenced in July 1995, it is likely they would be in violation of the Election Rules. However, since the articles did not specifically refer to the 1996 elections, and were published almost two years prior to the December 1996 election of IBT officers and three months prior to the beginning of the delegate election process, I find that the articles did not violate the Election Rules.
Id., p. 15.
The same circumstances are present here. Although Tom Leedham was a "candidate" at the time the Warehouse News article appeared in December 1999, the article precedes the International Officer elections by almost two years, and the delegate elections by six or more months. Moreover, the article does not specifically refer to the future elections, but only to the present and past "records" of the contestants. For this reason, we conclude that the Warehouse News article does not constitute a violation of the Rules or the LMRDA.
The "box" article that appeared in The Teamster in early January 2000 represents an amalgam of the two Warehouse News articles:
Oregon Joint Council Votes
Not to Support Kroger Strikers
While other Teamster locals and joint councils are taking an active role in supporting the strike against Kroger called by Local 104, Teamsters Joint Council 37 decided not to extend the Local 104 picket line.
Led by Tom Leedham, President of Local 206 in Portland, Ore., Joint Council 37 voted 4-3 against extending the pickets to Oregon. As Warehouse Division Director under disgraced former General President Ron Carey, Leedham never attempted to end subcontracting by extending picket lines and has refused to support this innovative approach.
'Local 104's dispute directly impacts Teamsters across the country,' said Jim Santangelo, President of Teamsters Joint Council 42, in southern California. 'We were extremely disappointed to learn of Joint Council 37's decision not to support extending the picket lines.'
'I don't understand why some locals have decided not to fight against Kroger's corporate greed and its plan to eliminate good union jobs,' said Ken Hilbish, Teamsters Warehouse Division Director. 'This is business unionism at its worst.'
E-2. While the tone of this article is generally somewhat more muted than the "Former Warehouse Director" piece, but it for the first time implies that Leedham is a "leader" of "business unionism at its worst."
Because The Teamster box otherwise simply replicates the subject matter of the two Warehouse News articles, and because it was published at a time remote from the forthcoming International election, however, I conclude that it as well does not violate the Rules or the LMRDA.
Finally, we turn to the Washington Teamster article by International Vice President and Joint Council 28 President Rabine, which appeared in after the February 2000 settlement of the Local 104 labor dispute. In a lengthy column entitled "The President's Message," Rabine intertwines a fairly straightforward factual rendition of the history of the Local 104 controversy, with frankly partisan commentary. It contains a "Hall of Fame" that praises various Hoffa administration members involved in the Local 104 labor dispute. It is followed by:
HALL OF SHAME
Three weeks into the strike, 12 tired rank-and-file strikers arrived at the Teamsters Building housing the offices of former International Warehouse Director Tom Leedham. They had traveled from Tolleson, Arizona to Portland, Oregon to seek Leedham's support. Leedham's Local 206 has a contract with the Kroger-owned Fred Meyer chain. When asked, Leedham refused and instructed his members to cross the Local 104 picket line, choosing to hide behind a since-proven-wrong legal theory and a bogus claim that political motivations were behind the reason for the picket line extension request.
A decision since issued by the National Labor Relations Board has upheld a previously written opinion by IBT legal counsel that advised Leedham an extension of Local 104's picket line to the Portland Fred Meyer facilities would not be a violation of law. The extension of Local 104's picket line into Southern California which included a Local headed up by one of the current International Vice Presidents, of course, is irrefutable proof that claims of political motivation are absolute nonsense.
The right of Kroger to contract-out bargaining unit work at Tolleson was permitted under Local 104's labor agreement that had been negotiated by Leedham just five years earlier when he was International Warehouse Director. Had Leedham negotiated the language that now exists under the new contract settlement, the Kroger strike at Tolleson could have been averted.
Refusal to support a fellow Teamster Local's legal picket line demonstrates weakness in a time of need. And, in this case, the request for support was for the most legitimate of all reasons -- to protect the jobs of fellow Teamsters. The net effect of that refusal was to unnecessarily delay settlement of the dispute, thereby causing harm to the involved striking Teamsters by providing hope to the employer that the Teamsters were not united in their support of the Local 104 membership. And for that, if not for anything else, Tom -- shame on you!
Emphasis in original.
In Reich v. Local 843, 149 LRRM 2358, 2364 (D.N.J. 1994), the District Court determined that a union funded response to an allegedly salacious attack on the incumbent violated the LMRDA because the respondent "did not provide purely factual information to refute the allegations contained in the 'New Teamsters' newsletter, but rather expressed his personal opinions about [the candidate]..., the members of the 'New Teamsters' slate, and the likelihood of [the candidate] ... winning the upcoming election." See, also, Martin, supra, pp. 7-8.
Rabine's references to Leedham's "bogus claim that political motivations were behind the reason for the picket line extension request...," his exclamation that "claims of political motivation are absolute nonsense," (whether or not true), all placed beneath the banner "Hall of Shame" with Leedham's name bolded, come the closest of any of the three challenged articles to violations of the LMRDA, and thus the Rules. Moreover, the fact that Rabine's column was published after the conclusion of the Local 104 labor dispute means that - unlike the two other articles which are the subject of this challenge - it can not be legitimated as an attempt to pressure Joint Council 37 and its officers such as Leedham to give support to another subordinate body of the IBT in an ongoing labor dispute.
However, even here, prior precedent precludes the finding of an LMRDA or Rules violation. In this regard, the decision in Jacob, P71 (September 7, 1995) is instructive. There, it was alleged that Local 391's newspaper improperly opposed the candidacy of General President Carey and supported the candidacy of Local 391 President R. V. Durham for General President. The articles challenged in that case harshly attacked General President Carey's administration, accusing it of engaging in a "reign of terror" through the elimination of area conferences, bringing "waste and corruption" to IBT headquarters, and various other alleged misdeeds. Applying the tone, content and timing test to the challenged articles, the Election Officer held that:
as the incumbent general president, Mr. Carey is subject not only to favorable exposure of his activities as a union leader, but must also bear criticism generated by virtue of his leadership. ... Giving voice to views opposing the current leadership on matters of concern to union members serves the purpose of promoting democracy. The protested articles and columns, however opinionated, were printed well in advance of the International delegate and officer elections. The articles criticize then-current significant policy decisions by the International Union leadership concerning the union's internal structure and finances. … Just as Mr. Carey may conduct union business without having it labeled campaigning, local union publications may criticize those policies without having it labeled as campaigning.
Jacob, citing Ruscigno, P65 (September 21, 1995), aff'd sub nom. Sullivan, 95 EAM 7.
Here also, despite the vigorous character of the criticism of Mr. Leedham in the Washington Teamster for his actions as an officer of Joint Council 37 regarding the Local 104 labor dispute, those criticisms were "generated by virtue of his leadership" in Joint Council 37 concerning an issue of legitimate and significant concern to IBT members: the loss of warehouse jobs and the measures to be taken to stop such losses. This fact, the remoteness of the Washington Teamster article from the 2000-2001 elections, and the fact that the article does not mention those elections or Leedham's status as a candidate in them, preclude finding a violation of the LMRDA or Article VII, Section 8(a) of the Rules here. Accordingly, this portion of the protest is likewise DENIED.
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 Administrator 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
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 the parties listed above, as well as upon the Election Administrator for the International Brotherhood of Teamsters, c/o International Brotherhood of Teamsters, 25 Louisiana Ave. NW, Washington, D.C. 20001, all within the time 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
2000EAD4
DISTRIBUTION LIST - VIA UPS NEXT DAY AIR
Alexandra Pope Michael Goldberg
322 N. Fullerton Ave. Widener University School of Law
Montclair, NJ 07042 4601 Concord Pike
Wilmington, DE 19803
Patrick Szymanski
IBT General Counsel Joe Kaplon
25 Louisiana Ave., NW Wohlner, Kaplon, Phillips, Young
Washington, DC 20001 & Barsh
15760 Ventura Blvd.
Jon L. Rabine Suite 1510
President Encino, CA 91436
Teamsters Joint Council 28
553 John Street Kenneth J. Pedersen
Seattle, WA 98109 Davis, Roberts & Reid
101 Elliott Avenue West
Darel Aker Suite 550
President Seattle. WA 98119
Teamsters Joint Council 37
1872 N.E. 162nd Ave. Andrew A. Marshall
Portland, OR 97230 Secretary-Treasurer
Teamsters Local 104
Thomas W. Leedham 1450 South 27thAve.
Secretary-Treasurer Phoenix, AZ 85009
Teamsters Local 206
1860 N.E. 162ndAve. Bradley T. Raymond
Portland, OR 97230 Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman
James Santangelo 32300 Northwestern Highway
President Suite 200
Teamsters Joint Council 42 Farmington Hills, MI 48334
9300 Flair Drive
Suite 300 J. Douglas Korney
El Monte, CA 91731 Korney & Heldt
30700 Telegraph Rd.
Suite 1551
Bingham Farms, MI 48025
[1] This "reach-back" protest was filed within the 30-day period following the issuance of the Rules on May 5, 2000. It alleges violations occurring before the issuance of the Rules. Article XIII, Section 2(a) of the Rules states:
Protests regarding violations of the [Labor-Management Reporting and Disclosure Act, as amended](including violations of the IBT Constitution) allegedly occurring prior to the date of issuance of these Rules and protest regarding any conduct allegedly occurring within the first twenty-eight (28) days after issuance of these Rules must be filed within thirty (30) days of the date of issuance, or such protests shall be waived.
[2] The text stated:
The members, families, retirees, and hard-working union officers - you're the reason I got into this fight many years ago, and you're the reason I feel confident about the challenges ahead.
I plan to write you in the coming months - not at union expense - and hope you will do the same. Send me your ideas and comments, and let me know if there are other Teamsters who ought to be receiving this information.
[10] While this quotation relates to a publication content issue, it is equally applicable to the content of alleged "campaign" activities.