Protest Decisions

IN RE: MARIA MARTINEZ,
Protest Decision 2001 EAD 384
Issued: June 11, 2001
OEA Case No. PR050812WE

Maria Martinez, a member and secretary-treasurer of Local 556, 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"). Martinez alleges that a Spanish language brochure published by the IBT violates Article VII, Section 8(a) and Article XI, Section 1(b)(6) of the Rules by promoting the Hoffa Unity slate.

Election Administrator representative Lisa Sonia Taylor investigated the protest.

Findings of Fact

A. The IBT brochure protested by Martinez has as the headline for one of its sections the words "Unidad, Orgullo, Fuerza." In English, this means "Unity, Pride, Strength." The Spanish brochure is a translation of an English brochure, which contains a section designated "Unity, Pride, Strength." It states:

The International Brotherhood of Teamsters represents more than 1.5 million working men and women throughout the United States and Canada. From airline pilots to zookeepers, the Teamsters work in a wide range of professions.

The union works to improve the lives of the Teamster members and their families and to raise the standard of living of working families everywhere.

Since taking office in March 1999, General President James P. Hoffa and his administration have led the fight to return unity, pride and strength to the Teamsters. By winning strong contracts, enforcing those agreements and organizing the unorganized, the Hoffa administration has returned the Teamsters to the forefront of the labor movement.

Other sections of the brochure then go on to discuss -- without reference to the Hoffa administration -- how the IBT has worked to organize the unorganized, obtained good contracts, promoted governmental policies that favor workers, and obtained labor rights and security for workers. In this last section, the brochure states:

Unity is the key of any organization, and it is the key to Teamsters' success. Through unity, Teamsters have more bargaining power. Teamster members are protected by contracts that guarantee:

· Good wages;

· Affordable health care;

· Real job security and seniority protections;

· Strong retirement benefits;

· Protection from discrimination and favoritism; and

· Safe working conditions.

The brochure then suggests that readers visit the IBT website for more information about the union.

According to the IBT, the brochures were first published "approximately one year ago." They are "routinely made available to locals for use in organizing drives and for other purposes [and are] designed to portray the Teamsters in a favorable light, particularly with prospective members." However, even if primarily targeted at the unorganized, the brochure would be available for reading by at least those IBT members who obtained copies for distribution to prospective members. Further, the goal of organizing is to get the unorganized to join the union, so it can be fairly assumed that at least a portion of the unorganized who read the brochures subsequently become members. And, the IBT acknowledges that locals may use the brochures for audiences other than the unorganized.

B. Unity, strength and pride have been key Hoffa Unity slate themes. We made findings concerning the Hoffa slate's campaign themes in Dethrow, 2001 EAD 381 (June 4, 2001), where we described the fact that the words "STAY UNITED!" are in the largest font on the home page of the Hoffa slate's website save for the word "Hoffa," as well as on most other pages of the website. And, of course, the slate itself is designated as the "Hoffa Unity slate."

We also found in Dethrow that other materials published by the Hoffa slate also focus on the central theme of "Unity." For example, the Hoffa slate's November 2000 "battle pages" from The Teamster state on their first page, "THE TEAMSTERS ARE BACK!!! UNITED AND STRONG AGAIN," surrounding a picture of General President Hoffa at a rally against free trade with China. Following on the very next page, the theme continues, with the heading, "THE TEAMSTERS UNITED AGAIN KEEP HOFFA." The theme of unity continues in various forms throughout the battle page ads, and in other Hoffa campaign materials as well. The restoration of Teamster strength under the Hoffa administration has also been a key Hoffa slate campaign theme.[1]  We also found in Dethrow that in the most recent battle pages from the January-February 2001 The Teamster, the word "Unity" is reprinted on every Hoffa slate battle page, either as part of a main or secondary headline. The repeated use of the term is obviously intentional, and a central theme of the Hoffa slate's campaign.

The Hoffa slate's campaign materials also focus on improvements in the IBT's financial strength since the Hoffa administration took office. Thus, for example, the November 2000 battle pages state:

HOFFA PROMISE MADE: RESTORE FINANCIAL STRENGTH When Jim Hoffa and Tom Keegel ran for office in 1998, they promised to restore the Teamsters to financial strength without raising dues and without cutting services. They're doing it.The Teamsters union is now operating in the black for the first time in ten years, despite the fact that the former Administration had spent nearly $1 billion in Teamster member dues money and pushed the union to the edge of bankruptcy."

(Emphasis supplied.)

The Hoffa slate's emphasis on the three themes of unity, pride and strength appears as a central feature of the Hoffa biography published by the slate, which states in its lead paragraph:

Since taking office on March 19, 1999, James P. Hoffa has been reuniting and rebuilding the International Brotherhood of Teamsters. Reaching out to his brothers and sisters throughout North America, Hoffa has made good on his pledges to bring Unity, Pride and Strength to the Teamsters.

www.Hoffa2001.com/contents/meet.

Analysis

Article VII, Section 8 of the Rules prohibits the use of any union-financed publication "to support or attack any candidate or the candidacy of any person." To distinguish legitimate news articles from campaigning we must look to the "tone, content, and timing" of the article in question. McLaughlin v. American Federation of Musicians, 700 F. Supp. 726, 733 (S.D.N.Y. 1988); Martin, 95 EAM 18 (October 2, 1995); Dethrow, 2001 EAD 381 (June 4, 2001).

The "tone, content, and timing" standard requires that we GRANT the protest, insofar as it is directed at the two sentences of the brochure that refer to the accomplishments of the Hoffa administration and the "Unity, Pride, Strength" title of a section of the brochure. We have no problem with much of the brochure, the intent of which is to build support for the Teamsters among the unorganized and as well as among those already members of the union. It is appropriate for the union to note its accomplishments as a way of building such support. Thus, the article's references to achieving good contracts, organizing workers, and attaining political clout are all appropriate, and are written in such a way that no particular candidates in the 2001 International officer elections are favored.

Where the brochure crosses the line is in its direct praise of the accomplishments of the Hoffa administration itself, as opposed to the union, as well as its adoption of the Hoffa slate's themes of "Unity," "Pride" and Strength." Thus, the article explicitly states that since General President James P. Hoffa and his administration entered office in March 1999, he has "led the struggle to return unity, pride and strength to the Teamsters Union." This is similar to the endorsement of the Hoffa candidacy found improper in Pope, 2000 EAD 3 (August 1, 2000), where a body of the IBT passed a resolution that read in part: "Whereas, General President James P. Hoffa, IBT, and his administration has returned unity, pride, strength and jobs to the Teamsters Union…" Although not stated as an endorsement, the challenged portion of the brochure approaches that status. Whether or not characterized as such, it clearly supports candidate Hoffa by lauding his accomplishments. And such praise of the Hoffa administration is unnecessary to accomplish the legitimate institutional union objective of portraying the union and its accomplishments in a good light in order to convince non-members to join the union and members to support it more strongly.

Moreover, the continued availability of the brochure, shortly before the IBT Convention and the nomination of delegates, also support our conclusion of impropriety. We also note that the brochure has not been withdrawn from use by the IBT, and so may continue to be available during the entire period leading up to the mailing and counting of ballots in October and November 2001.

The continued distribution of the brochure among voters shortly before the convention and during the months before the mailing of ballots warrants a finding that the brochure constitutes improper campaigning. See New Directions v. Seda, 867 F. Supp. 242 (S.D.N.Y. 1994) (article published five months prior to nomination ballots and six months prior to election violated LMRDA; cited in Martin, 95 EAM 18 at 13).

As in Dethrow, supra, we reject any claim that our decision in Higdon, 2001 EAD 346 (May 4, 2001), sanctions the article's emphasis on the Hoffa campaign themes here, coupled here as it is with the publication's praise of the Hoffa administration. There, we held that use of "generic trade union terms that have not become so closely associated with a particular campaign as to constitute an endorsement of that campaign" was permissible. Here, what are undoubtedly in some contexts "generic" trade union terms have been reprinted in an IBT brochure that adopts the terms in the same way as they have been used by an International officer candidate slate: as a central theme of that candidate's campaign for reelection, and incorporated into a statement of praise of the candidate's administration. That cannot pass the "tone, timing and content" standard. See Dethrow, supra; Lopez, P242 (December 19, 1995), aff'd, 96 EAM 51 (January 8, 1996)(printing the phrase "Putting Members First" in an official union publication held impermissible endorsement of Carey campaign, because the phrase was a Carey campaign slogan).[2]

Remedy

When the Election Administrator determines that the Rules have been violated, he "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator views the nature and seriousness of the violation as well as its potential for interfering with the election process.

To remedy the violation here, we direct the IBT to instruct each of its subordinate bodies to immediately return all undistributed copies of the English and Spanish versions of the challenged brochure to the IBT, and further direct the IBT to refrain from distribution of copies of the brochure until after completion of the 2001 International officer election.

An order of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73.

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 15^th Street NW, Tenth Floor, Washington, DC 20005 (facsimile: 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 384

DISTRIBUTION LIST VIA UPS NEXT DAY AIR:

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 c/o Stefan Ostrach

110 Mayfair

Eugene, OR 97404

Maria Martinez

IBT Local 556

1750 Portland Street

Walla Walla, WA 99362

Hoffa Unity Slate

Todd Thompson

209 Pennsylvania Ave. SE

Washington, DC 20003