IN RE: HOFFA 2006, Protestor.
Protest Decision 2005 ESD 25
Issued: November 8, 2005
OES Case No. P-05-014-092305-MW
Hoffa 2006 filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that David Thornsberry and the United Rank & File (UR&F) slate distributed a campaign flyer in the Local Union 89 delegate and alternate delegate election that utilized material developed by Convoy Dispatch, the newspaper of Teamsters for a Democratic Union, which the protestor claimed violates the Rules.
Election Supervisor representative Jeffrey Ellison investigated this protest.
Findings of Fact
The flyer at issue adopted the style of a fugitive poster and was titled, "Wanted For Crimes Against Teamsters." It depicted images of General President James Hoffa and Local 89 president Fred Zuckerman and asserted their purported offenses, including raising members' dues while reducing their benefits. The flyer urged members to vote for the UR&F slate.
The protestor claims that this flyer utilized material developed by Convoy Dispatch. In support of its claim, the protestor states the following:
For the past two years, TDU has engaged in a sustained campaign of political vilification against the Hoffa-Keegel Slate and its positions on critical issues that had arisen in the administration of the Central States Pension Plan. This campaign has been waged in the newspaper of TDU. Convoy Dispatch is widely circulated throughout the IBT membership and is paid for by contributions from tax-exempt foundations and other sources prohibited from participating in the 2005-6 IBT elections. Now, in the midst of the fall delegate election cycle the flyer that the Thornsberry Rank and File Slate is distributing expressly links Jim Hoffa and supporters like Local 89 President Fred Zuckerman to TDU's criticisms of Hoffa and specifically Hoffa's position on the pension issues. Thornsberry is thereby accepting an illegal contribution from TDU.
Investigation showed that the flyer was developed by Thornsberry without assistance from TDU or Convoy Dispatch.
Investigation further showed that Convoy Dispatch has published many articles in the past two years critical of the incumbent IBT administration. The protestor cites the following as examples:
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Issue #214, published December 2003/January 2004, carried the front-page article titled "Rank & File Rebellion! Members Resist Pension Rip-Off." A four-page spread inside the issue featured a dozen articles on pension cuts and suggested ways concerned members might respond. One article criticized Hoffa and pension trustees Fred Gegare and Phil Young for asserted lack of leadership and poor decision-making. |
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Issue #216 (March 2004) carried a cover article entitled, "Cover Up! Hoffa lied about pension cuts to sell weak contracts. What he knew and when he knew it." |
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Issue #217 (April 2004) criticized pension trustees Gegare and Chuck Mack for cutting retiree benefits. Gegare and Mack also serve as IBT vice presidents and were members of the Hoffa Unity slate in the 2001 International Officer election. |
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Issue #218 (May/June 2004) carried articles on the resignation of RISE director Ed Stier and Stier's criticisms of Hoffa's efforts to eliminate corruption in the IBT. The issue also criticized Hoffa concerning a report on the financial health of the Central States Pension Fund. |
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Issue #219 (July 2004) criticized the Hoffa administration for failing to organize in traditional Teamster industries. |
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Issue #220 (August 2004) criticized Hoffa for installing a defeated local union officer as an emergency trustee of that local. |
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Issue #221 (September/October 2004) listed the Teamster leaders with annual compensation in excess of $100,000. |
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Issue #224 (February/March 2005) carried a front-page headline, "Pension Cut Cover-Up," and alleged that Hoffa concealed early warnings of inadequate employer pension-fund contributions. |
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Issue #228 (July/August 2005) carried an article titled, "Hoffa Corruption Wrecks Possibility of Ending Government Supervision." |
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Issue #229 (September 2005) featured a cover article entitled "Hoffa Unity Cracks," that claimed to document discord among Hoffa supporters. |
Only the July/August 2005 issue of Convoy Dispatch printed a report concerning the delegate and alternate delegate election in Local 89. An article titled "Early IBT Delegate Elections Kick Off" contained the following:
"Four years ago, [President] Fred Zuckerman and his Local 89 delegates went to the 2001 IBT Convention and rubber stamped everything Hoffa put forward," said David Thornsberry, a UPS package car driver. "We plan on winning the delegate race this fall. We need to clean up the mess they've made for working Teamsters over the past five years and take a strong stand against the pension cuts that have devastated so many members."
The protestor asserts that Convoy Dispatch is financed by contributions of employers and non-members.
Analysis
The protestor contends that the criticisms of the Hoffa administration that appeared in Convoy Dispatch were part of a long-term TDU campaign to provide employer- and nonmember-financed assistance to the UR&F slate in the Local 89 delegate and alternate delegate election. The protestor further contends that the UR&F slate now has taken over the criticisms of the Hoffa administration first presented in Convoy Dispatch and linked them to the Zuckerman-Bolton slate in its campaign material.
Article XI, Section 1(b) of the Rules prohibits acceptance of employer and nonmember contributions by any candidate or slate.
TDU submits that publication of Convoy Dispatch is funded solely by contributions permitted under the Rules. Further, TDU and the UR&F slate assert that the protest is untimely and should be denied.
Because of our resolution of this protest, we need not address the protestor's contention that Convoy Dispatch is funded from an impermissible source. We DENY this protest on the grounds that follow.
First, the evidence here demonstrates that the UR&F flyer was conceived and produced by the UR&F slate without the assistance of TDU or Convoy Dispatch.
Second, consistent with precedent established in 1991 and affirmed in each succeeding election cycle, we have no authority to regulate content of campaign literature. See Rogers, P518 (February 21, 1991); Landwehr, P201 (November 15, 1995); Yolland, P660 (April 3, 1996); Gamaza & Rosas, 2001 EAD 278 (March 28, 2001). The Election Officer has held:
The fact that campaign statements … were allegedly false or even defamatory does not remove such literature from the protection of the Rules. The model for free and fair Union elections is that of partisan political elections. In those elections, contestants are generally allowed to make whatever assertions, allegations, statements of opinion or even of alleged facts without legal sanctions for their truth or falseness. The cardinal principle is that the best remedy for untrue speech is more free speech, with the electorate being the final arbiter.
Braxton, P304 (May 21, 1991).
Consistent with this well-established principle, we hold that a candidate's campaign literature may present issues that are also addressed in, or published by, an allegedly impermissibly-funded voice and that, absent facts specifically showing support received from the improper source, the candidate's publication would not constitute the acceptance of a prohibited contribution. Accordingly, the UR&F flyer at issue here does not violate the Rules, even if it sounds themes previously expressed in Convoy Dispatch.
Third, we have previously found that James Hoffa became a candidate for re-election in late April or early May 2005. TDU & Hackett, 2005 ESD 2 (July 15, 2005). Because seven of the nine issues of Convoy Dispatch at issue here were published before April 2005, their content - while critical of the incumbent administration - did not constitute opposition to Hoffa as a candidate for office or support for any other candidate within the meaning of the Rules, regardless of the manner in which the newspaper was funded.
Finally, the protest is untimely. Although it was filed within two working days of the date the protestor became aware of the UR&F campaign flyer, the protestor's assertion of impermissibly-funded opposition to Hoffa are predicated on the content of the TDU newspaper, not the UR&F flyer. Seven of the nine issues of Convoy Dispatch at issue were published before the May 1, 2005 issuance date of the proposed Rules. A protest based on pre-issuance activity is waived unless filed within thirty days of the Rules' issuance, Article XIII, Section 2(a), and this protest is therefore untimely by several months. For the other two Convoy Dispatch issues, each of them was published more than two days before the date the protest was filed, and the protest is therefore untimely. Article XIII, Section 2(b).
Accordingly, we DENY this protest.
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 Supervisor 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, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2005 ESD 25
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
pszymanski@teamster.org
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
braymond@fwslaw.com
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fzuckerman@teamsters89.com
Robert Colone
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
rmcolone@teamsters89.com
David Thornsberry
785 Kingswood Drive
Taylorsville, KY 40071
davidthorny@msn.com
United Rank & File Slate
P.O. Box 991175
Louisville, KY 40269-1175
Rankandfile2005@msn.com
Ann Curry Thompson
Kelman Loria, PLLC
660 Woodward Avenue, Suite 2300
Detroit, MI 48226
acthom@kelmanloria.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com