IN RE: STEFAN OSTRACH,
Protest Decision 2000 EAD 68
Issued: December 20, 2000
OEA Case No. PR120701NE
Stefan Ostrach, a member of Local 206, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules")against Local 237 and the Hoffa Unity Slate (the "Hoffa slate"). The protest alleges that Local 237 has violated Article VII, Section 8(a)(5) of the Rules by publishing an article concerning the submission of the Hoffa slate's candidate accreditation petitions while at the same time not publishing any article concerning the submission of the Tom Leedham Rank and File Power Slate's (the "Leedham slate") accreditation petitions.
Election Administrator representative Michael Nicholson investigated the protest.
Findings of Fact
Local 237 is one of the largest locals in the IBT, and represents approximately 25,000 public employees in the New York City area. It publishes a monthly newspaper that is mailed to all of its members and to others on its subscription list. Moronke Oshin is the editor of the newspaper. Carroll Haynes is the principal officer of the local.
The November issue of Local 237's newspaper contained an article entitled "Hoffa Petitions for Re-election." A copy of the article is attached hereto as Exhibit A. The article paraphrases portions of an August 31, 2000, Hoffa slate press release entitled "Hoffa Campaign Submits More Than 400,000 Petition Signatures: Success of Volunteer Petition Drive Unprecedented." A copy of this press release is attached hereto as Exhibit B. The newspaper article quotes the press release's statement that the Hoffa slate's submission of its election accreditation petitions to the election administrator "is the first step towards re-election as General President of the IBT." It does not quote the press release's quotation of President Hoffa statements of gratitude concerning the petition signatures, does not quote the press release's statement that "the number of signatures is unprecedented in the history of Teamster elections and is seen as a good gauge of the approval rating of the Hoffa administration...", and does not quote a member's statement of support for President Hoffa. The newspaper article repeats six of seven bullet-pointed accomplishments by the Hoffa administration that are listed in the press release. No further editorial comment is contained in the article.
Oshin obtained the press release that formed the basis for the article from America Online. Haynes approved the inclusion of the article. He stated that the newspaper has not covered the Leedham campaign in the last year. He stated that if the Leedham slate had called and asked for inclusion of a similar article concerning its accreditation petitions, such an article would have been included.
Further, the Hoffa slate states that it did not request the printing of the challenged article. According to its counsel, "[t]he Hoffa Unity Slate had no knowledge, participation or involvement in the publication of the November issue of the Local 237 newspaper."
The Leedham slate also issued a press release concerning the filing of its accreditation petitions and its accreditation. It published the press release on its website, and it was as available to the editor of Local 237's press release as the Hoffa release. A copy of that press release, issued September 8, 2000, is attached hereto as Exhibit C.
Analysis
Article VII, Section 8(a) of the Rules states that a union-financed publication or communication may not be "used to support or attack any candidate or the candidacy of any person"and provides criteria for determining whether the communication is campaign material. The "tone, timing and content" test has been established in order to determine when publications constitute 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). The Election Administrator must also review "the specific context in which the communication takes place." Jacob, supra.
One of the limitations on union-financed publications established by Article VII, Section 8 states:
A Union-financed newspaper or other publication or communication shall not: . . . contain pictures or articles reporting on the activities of a particular candidate where the same or similar activities of other similar situated candidates for the same office(s) have not been similarly reported.
Rules, Article VII, Section 8(a)(5) (formerly Article VIII, Section 8(a)(5)).
In Carey, P954 (November 14, 1991), the Pennsylvania Conference of Teamsters newspaper reported on speeches given at a meeting of Joint Council 53 by various candidates for International office who were all members of one slate. The Election Officer described the coverage given the candidates:
The introductions to each of the speeches referred to each speaker as a candidate in the forthcoming election. While the speeches did not contain explicit campaign propaganda, each speaker discussed his perception of the problems facing the IBT and his opinions about the solutions--his vision of the future of IBT. In other words, these speeches, without explicitly stating 'here is why you should vote for me," implied as much; the only missing element of what would be viewed as a typical campaign speech was negative comments about the opposition. The substance of the speeches were virtually indistinguishable from a standard campaign stump speech . . . While the selection of each of the speakers may be explainable apart from their candidacy on the Shea-Ligurotis Slate, the absence of anyone other than these candidates is significant.
The Election Officer found in Carey, that the combination of the partisan speeches at the Joint Council meeting and the newspaper account of the speeches violated restrictions on union-financed publications stated in the election rules. There is no question that the protested article in Local 237's newspaper similarly includes explicit campaign material.
The protested article is also similar to the newspaper article covering speeches at a local union stewards' seminar at issue in Sauwoir, P41, (August 16, 1996). There, speeches by various "potential challengers" of Ron Carey who spoke critically of Carey and his administration were covered in the newspaper. The Election Officer found that Section 8(a)(5) had not been violated only because the union publication published a response by Carey in the following issue of the newspaper in a space similar to that given his critics.
Similarly, in Kilmury, P303 (February 15, 1996), aff'd 96 EAM 109 (February 28, 1996), a Section 8(a)(5) violation was found where a local union newspaper had reported on general president candidate Hoffa's campaign trip to Vancouver without providing similar coverage to candidates Carey and Theodus. The article did not include a response from the other candidates, although the local union claimed that it was willing to report on any campaigning by other candidates if they traveled to Vancouver. The Election Officer rejected this defense and held that the "local union publication may not condition the equal treatment required under the Rulesupon a candidate making a campaign stop in Vancouver."
We conclude that the publication of the challenged article here violates Article VII, Section 8(a)(5). The event reported on in this case is not a minor occurrence in the 2000-2001 election cycle. Rather, the accreditation of candidates is a major event for both campaigns, and was treated by them as such. The issuance by both campaigns of press releases concerning accreditation, and the posting of these press releases on their internet campaign websites, shows that this is so.
Yet here Local 237 chose to publish only an edited version of the Hoffa release, defending its action on the ground that it would have published any Leedham information if only it had been brought to the local's attention. We reject this defense for the same reason that the Election Officer rejected the above-referenced similar defense in Kilmury. See 96 EAM 109, supra, at pp. 4-5. As Judge Conboy held there, "the Local Union may not, in effect, make impartial coverage conditional upon [action of the opposing candidate] and thereby evade its burden under Article VIII of providing balanced reporting." Id. at 5. In addition, the local's defense runs counter to Article VII, Section 9(a), which provides that "[I]f any candidate is permitted to have his/her campaign material published, all other candidates must be so advised in writing and provided the same opportunity on an equal basis."
It is undoubtedly true that the Hoffa slate candidates' accreditation was a newsworthy event, of interest to Local 237's members. Exactly the same must be said, however, of the accreditation of the Leedham slate candidates. Both events, however, were at their very heart campaign events, despite their newsworthiness. As Judge Conboy held in affirming Kilmury:
Were we to accept [the defense of newsworthiness as to campaign events], every one-sided report about a candidate for International office could be justified on the theory that union politics is a newsworthy subject. That, however, would encourage precisely the type of unbalanced reportage that Article VIII seeks to eliminate from union-financed publications.
96 EAM 109, supra.
Article VII, Section 8(a)(5) of the Rules does not preclude coverage of newsworthy campaign events. It requires only that coverage of such events be balanced in the manner provided by the explicit text of that rule.
For the foregoing reasons, the protest is GRANTED.
Remedy
When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interference with the election process.
In Kilmury, the election officer ordered that the local union finance a mailing to the membership by the candidate, as the Leedham campaign urges here. However, this remedy was required only because the publication schedule of the local union's newspaper precluded a responsive article before the delegate ballot count date. Here, the next issue of Local 237's newspaper goes to the printer in January 2001 and will be mailed to the membership within two weeks thereafter. The Local's delegate nomination meeting is tentatively set for March 1, 2001, and the count date for the delegate vote is tentatively set for April 25, 2001. In this case, therefore, the publication by the local union of a responsive article by the Leedham slate in the next issue of its newspaper will be a sufficient remedy. The article shall be the same size and have the same location in the newspaper as the challenged article. Any disputes concerning this will be resolved by the Election Administrator.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Administrator. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street, NW, 10th Floor, Washington, DC 20005, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2000 EAD 68
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