IN RE: TOM LEEDHAM RANK AND FILE POWER SLATE,
Protest Decision 2001 EAD 448
Issued: September 12, 2001
OEA Case No. PR082313NA
(See also Election Appeals Master decision 01 EAM 83)
The Tom Leedham Rank and File Power slate (the "Leedham slate") 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 the IBT. The protest alleges the IBT has used its website to endorse the reelection effort of General President James P. Hoffa in violation of the Rules.
Election Administrator representative Jeffrey Ellison investigated the protest.
Background
Article VII, Section 8 of the Rules prohibits use of a union-financed publication or communication "to support or attack any candidate or the candidacy of any person." Section 11(b) of the same article bars a union from endorsing or otherwise advancing a candidacy. Section 11(c) prohibits use of union funds, facilities, equipment and personnel "to assist in campaigning" unless the assistance is at candidate expense and is available to all candidates. Article XI, Section 1(b)(3) prohibits a union from contributing "anything of value" to a candidate "where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election" of the candidate. Finally, Article XI, Section 1(b)(13) holds a candidate "strictly liable to insure that each contribution received is permitted under these Rules."
In Leedham Slate, 2001 EAD 444 (September 10, 2001), we held that the provisions of Article VII, Section 8 regarding union-financed publications apply to websites authorized, funded or maintained by a union.
In Lopez, P242 (December 19, 1995), aff'd, 96 EAM 51 (January 8, 1996), a union's use in the masthead of its newsletter of the campaign slogan of a candidate was found to constitute an endorsement of that candidate.
In Martinez, 2001 EAD 384 (June 11, 2001), appeal withdrawn, ("Martinez I"), we held that the terms "unity," "pride," and "strength" had become so closely associated with the Hoffa campaign as to make their use in union-financed publications and communications during the electoral period implicit endorsements of the Hoffa slate.
In Martinez, 2001 EAD 414 (July 27, 2001), aff'd 01 EAM 87 (August 17, 2001, corrected copy issued August 30, 2001) ("Martinez II"), we held that "given the pervasive use of the "unity" theme by the Hoffa slate, the permissible contexts in which the IBT may adopt the same slogan during the ongoing electoral campaign are sharply limited." The Election Appeals Master affirmed, writing:
The factual record in this case … indisputably establishes that the IBT repeatedly endorsed the candidacy of the Hoffa Slate by broadly and pervasively repeating the Hoffa Slate campaign slogan (as settled in Martinez I) in speeches, visuals and convention paraphernalia. Indeed, the inference is irresistible that this was planned and choreographed with precisely campaign benefits chiefly in mind. This is astonishing, especially in light of the clear and unequivocal governing precedent in Lopez.
Findings of Fact and Analysis
The IBT maintains a sprawling and comprehensive website at www.teamster.org. The site's home page lists links to current news and press releases about IBT activities and campaigns, to the various divisions within the union's organizational structure, to biographical information about General President Hoffa, General Secretary-Treasurer Keegel, and the other members of the General Executive Board, and to historical and organizational information about the union. The site is replete with attractive and colorful graphics and web-streamed video presentations. The site is updated several times weekly with new information and links to news accounts of interest to the IBT membership published in the mainstream print and broadcast media.
Before Martinez II issued, the website contained a large number of articles developed by the IBT communications department reporting on the activities of General President Hoffa. A short list of examples includes these:
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An article entitled "Hoffa Addresses Southern Teamsters," posted March 5, 2001, at www.teamster.org/01news/hn_010305_2.htm, reported on a Hoffa speech where he said, "Our unity has enabled the Teamsters to accomplish great things in just two short years." |
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An article at www.teamster.org/laborday/hoffa.htm, a Labor Day, 2000, article declares: "Today our 1.5 million members enjoy the unity, pride and strength that equip us for the struggles ahead." |
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An article at www.teamster.org/keegel/keegel.htm quotes General Secretary-Treasurer Keegel saying, "It is great to be a Teamster today because unity, pride and strength are back. Through unity, we can achieve our goal of Building Better Lives Together." |
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An article at www.teamster.org/01convention/01conventionnews/crel_010629_2.htm is entitled "Teamsters Convention Closes with Unprecedented Unity;" it reads in part, "The International Brotherhood of Teamsters today wrapped up its 26th International Convention, ready to face the 21st Century united, proud and strong." |
Following our decision in Martinez II, the IBT undertook a substantial cloaking of its website. First, it masked the words "unity, pride, strength" appearing in the masthead of its home page. Second, it interrupted links to make it impossible to access any news article, press release, or interview posted July 31, 2001 or earlier by clicking on the link. Access to these items remains possible by typing the address of the article into the browser, but clicks on the links on the home page lead only to the following notice, posted at www.teamster.org/ea.htm:
This Page Unavailable
The Election Administrator has ordered the International Brotherhood of Teamster in Protest Decision 2001 EAD 414 (July 27, 2001) to cease and desist using certain words. Information on the page you have selected may contain those words or their derivatives and may be in violation of the election rules.
As a result of this decision, the International Brotherhood of Teamsters has been required to make a vast majority of the website unavailable until completion of the Teamsters election on November 14, 2001.
Our decision in Martinez II ordered the IBT "to cease and desist from endorsing any candidate or slate of candidates in the pending election. We further order the IBT to cease and desist from using the terms 'unity,' 'pride' and 'strength' singly or in combination unless the context demonstrates a connection to a legitimate union goal such as a contract campaign against a specific employer." By mischaracterizing our cease and desist order as simply barring the use of "certain words," the IBT compels us to order that the notice attached to this decision be substituted in place of the notice quoted above.
In addition, we hold that the pre-publication review procedure for union-financed publications, set forth in Article VII, Section 8(e) of the Rules, applies with full force to union websites. Accordingly, the IBT must submit any material it seeks to include on its website, including material of other websites to which it seeks to establish links, for pre-publication review. Our evaluation of all material proposed for such inclusion on the IBT website will include the analysis applied in Martinez I and related cases; it will also analyze the proposed material in light of the factors set forth in Article VII, Section 8(a), including in particular the prohibition against "carry[ing] 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." Article VII, Section 8(a)(6).
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 interfering with the election process.
We order the IBT to cease using its publications, including its website, to support or endorse the Hoffa candidacy and the Hoffa slate. In addition, we order the notice attached to this decision as Exhibit A be substituted for the notice appearing at www.teamster.org/ea.htm. We further order that all current links to www.teamster.org/ea.htm be maintained until November 13, 2001.[1]
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 (February 13, 1996).
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 (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 448
NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS
The Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") prohibit a union from endorsing a candidate for office in the International officer elections. In addition, the Rules prohibit a candidate from accepting a union's endorsement.
The Election Administrator has concluded that the IBT improperly used this website to endorse the candidacy of James P. Hoffa. In addition, the Election Administrator has concluded that candidate Hoffa improperly accepted the endorsement by permitting the website to be used for such purpose.
The Election Administrator will not permit any such violation of the Rules.
The Election Administrator has ordered IBT to cease and desist from endorsing candidate Hoffa and has further ordered candidate Hoffa from accepting the endorsement.
Accordingly, information on the page you have selected is unavailable because it may contain an improper endorsement and be in violation of the Rules.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with William A. Wertheimer, Jr., Office of the Election Administrator, 727 Fifteenth Street, NW, Washington DC 20005, telephone 800-565-VOTE, fax (202) 454-1501, www.ibtvote.org.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
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
Hoffa Unity Slate
Todd Thompson
209 Pennsylvania Ave. SE
Washington, DC 20003
Matt Ginsberg
Tom Leedham Campaign
P.O. Box 6678
Arlington, VA 22206
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, TX 75207
Jeffrey Ellison
65 Cadillac Square
Suite 3727
Detroit, MI 48226
[1] The IBT has neglected to eliminate its home page link to its screensaver featuring the "unity, pride, strength" slogan. It should do so immediately.