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Office of the Election Supervisor for the International Brotherhood of Teamsters

Protest Decision 2001 EAD 357
Issued: May 9, 2001
OEA Case Nos. PR031312NE

Clifford Lewis, a member of Local Union 813, 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"). He protests the use of a union-financed publication to support the delegate candidacy of the Pride and Power slate in violation of the Rules.

Election Administrator representative David Reilly investigated the protest.

Findings of Fact and Analysis

The local publishes a newspaper periodically entitled Teamsters 813 Local News. The Winter 2001 edition was mailed to members on March 7, the first edition of the paper since new leadership of the local was elected in August 2000. The new officers replaced a trusteeship of several years duration. The local submitted its plan for the delegate election in September 2000 stating it intended to publish its newspaper semi-annually. Six months later, the first edition appeared.

The paper consists of 8 pages. The lead article, starting on page 1 and continuing on pages 3 and 4, is entitled, "In First Six Months, New Leadership Scores Key Victories;" it lists contracts the new leaders have negotiated and catalogs the problems the trustee and his staff left behind. The president's column on the second page recites some goals of the new leadership and the problems that face the local union. The fourth page describes members' rights in disciplinary interviews. Photographs of the officers and clerical staff appear on page 5. The remaining three pages are devoted to insurance and pension fund news.

The paper makes no reference to the delegate election, the International convention, or the International officer election. In particular, it does not identify or refer to any individuals as delegate candidates. While the paper criticizes the departed trustee and his staff for current problems facing the union, none of those individuals is a candidate in the delegate election.

The protestor advances three arguments that the newspaper violates the Rules. First, he asserts the March 7 mailing date of the newspaper followed closely on the February 27 mailing of ballots in the delegate election and was therefore intended to influence the vote in that election. Second, he argues that many of the claimed "victories" recited in the lead article were the result of efforts of the previous administration rather than the current leadership. Finally, he asserts it is unfair to blame the previous administration for the conditions prevailing when the new leadership assumed office.

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.

Election Appeals Master Conboy explained in Martin, 95 EAM 18 (October 2, 1995):

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] views." [Citations omitted] …


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. [Citations omitted] … 

Moreover, a union-funded newspaper does not violate the Rules by publishing articles on newsworthy issues of interest and legitimate concern to membership. Sullivan, P66 (July 28, 1995); Volpe, P828, aff'd 96 EAM 218 Further, a published report on the activity of incumbent officers does not violate the Rules where it "is addressed to the regular functions, policies and activities of such incumbents as officers involved in matters of interest to the membership, and not as candidates for re-election. Jacob, P68 (July 26, 1995).

We DENY this protest. When measured against the tone, timing and content test, the current edition of the local's newspaper does not violate the Rules' provision barring use of union publications to support a candidacy. The newspaper reports on conditions of the local and the activities of its elected and appointed leaders; both subjects are of legitimate concern to the membership. Further, the newspaper does not reference the delegate election or report on the activities of any individual as a candidate in that election. The Rules are not implicated by the criticisms of the departed trustee and his staff of individuals because they are not candidates in the delegate election. Although the newspaper was sent to members some eight days after ballots were mailed, we find the proximity of these mailing dates is insufficient to alter the character of the publication from a legitimate to a prohibited one, especially where the tone and content are otherwise proper.

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 all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street NW, Tenth Floor, Washington, DC 20005, (fax: 202-454-1501), 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

2001 EAD 357


Patrick Szymanski

IBT General Counsel

25 Louisiana Ave. NW

Washington, DC 20001


Bradley T. Raymond

Finkel, Whitefield, Selik,

Raymond, Ferrara & Feldman

32300 Northwestern Highway

Suite 200

Farmington Hills, MI 48334


J. Douglas Korney

Korney & Heldt

30700 Telegraph Road

Suite 1551

Bingham Farms, MI 48025


Barbara Harvey

Penobscot Building

Suite 1800

645 Griswold

Detroit, MI 48226


Betty Grdina

Yablonski, Both & Edelman

Suite 800

1140 Connecticut Ave. NW

Washington, D.C. 20036


Tom Leedham Rank and File

Power Slate

c/o Stefan Ostrach

110 Mayfair

Eugene, OR 97404


Clifford Lewis

1954 First Avenue, Apt. 12T

New York, NY 10029


IBT Local 813

52-35 Barnett Avenue

Long Island City, NY 11104


Sylvester Needham

385 Bayview Avenue #5F

Ironwood, NY 11696


Richard Merola

6 Arbor Lane

Bardonia, NY 10954


John Velotti

160-36 91st Street

Howard Beach, NY 11414


Sean T. Campbell

41 Hudson Street

Chester, NY 10918


Anthony Marino

104 Harrison Avenue

Franklin Square, NY 11010


David F. Reilly

Reilly, Oliver & Olsen

22 West Main Street

P.O. Box 457

North Kingstown, RI 02852