IN RE: HOFFA 2006, Protestor.
Protest Decision 2006 ESD 318
Issued: July 8, 2006
OES Case No. P-06-249-033106-HQ
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 TDU/TRF, Tom Leedham, the Leedham Slate, and the Members First Slate of Local Union 804 improperly associated with and used banned Teamster Ron Carey in furtherance of their delegate and International officer campaigns when they published an interview with Carey in the Labor Notes magazine.
Election Supervisor representative Steven R. Newmark investigated this protest.
Findings of Fact
Labor Notes is a non-profit organization that bills itself as the "voice of union activists since 1979" and publishes a monthly magazine by the same name. The staff at Labor Notes magazine is comprised of co-director and editor Chris Kutalik, Troublemakers' Handbook editor Jane Slaughter, layout editor Jim West, fundraising director Marsha Niemeijer, co-editor William Johnson, promotions coordinator Sheila McClear, office manager Jean Mitchell, staff writer/organizer Tiffany Ten Eyck, and web steward Ellis Boal.
The protest contended that Labor Notes published an interview with former IBT President Ron Carey in which Carey endorsed Leedham and his slate. The protest claimed that Carey is banned and cannot associate with any IBT member, and that Labor Notes is associated with TDU/TRF, Ken Paff, and Tom Leedham and the Leedham slate. The protest alleged that "Carey's interview, intentionally sought out and published nationwide by TDU/TRF's Labor Notes publication, was intended for no other plausible purpose other than furthering the campaign of the Local 804 Members First Slate and the Tom Leedham campaign."
On July 27, 1998, the Independent Review Board ("IRB") permanently banned Carey from membership, from holding any office or employment relationship with the IBT or its affiliates, or otherwise drawing any salary or compensation from any IBT-affiliated source. The IRB action was affirmed by the U.S. District Court and the U.S. Court of Appeals. See United States v. International Brotherhood of Teamsters, 22 F.Supp.2d 135, 139 (S.D.N.Y. 1998), aff'd, 247 F.3d 370 (2d Cir. 2001). As a result of this IRB action, Paragraph E(10) of the Consent Decree enjoined all IBT officers, representatives, members and employees from "knowingly associating" with Carey.
The Labor Notes article, titled "Interview with Ron Carey," was written by co-director and editor Chris Kutalik, appeared in the April 2006 edition, and ran 3½ pages. It reported Carey's opinion on the Hoffa presidency, the future of the Teamsters Union, and Tom Leedham. The article quoted Carey on what he termed Hoffa's "broken promises," and his statement that Hoffa is "all a lot of hot air." When the interviewer asked whether Carey saw any hope for the Teamsters, he replied, "You need strong leadership. Leadership that believes in mobilizing the members and challenging the employers. When I look around the Teamsters, the leader who fits the bill is Tom Leedham."
The article records Carey's responses to the interviewer's 8 questions or statements, viz.,
What have you been doing since you left the Teamsters?
It's been almost ten years since you were prevented from standing for reelection in the Teamsters Union. How have the Teamsters done under your successor, James Hoffa?
UPS recently purchased Overnite, the nation's largest nonunion freight carrier, and the company recently announced it is changing the name to UPS Freight. What impact will this have?
Is there anything you think Hoffa is doing right?
A federal appeals court recently dismissed the Teamsters' latest appeal in a lawsuit against you…
The Teamsters Union still has one member, one vote for top officers. With an election coming up this year, do you think members can change the union's direction?
I understand that a group of Local 804 members are running for office in the Convention Delegate race and they're promising to put Tom Leedham on the ballot
Overall, you paint a pretty negative picture. Do you see any hope for the Teamsters?
Kutalik stated that Labor Notes jointly owns a building with TDU; however, the offices are located on separate floors. Labor Notes is governed by a board of directors, none of whom are members of the IBT or TDU. Labor Notes also has a policy committee, which acts as a consultative body and meets once a year to set general policy. Ken Paff is a member of the policy committee. The policy committee does not participate in administration or formulation of policy for the Labor Notes magazine. All editorial decisions regarding content of the magazine are made by Kutalik and co-editor William Johnson. Kutalik reported that he did not receive any suggestions for content from any candidate. Kutalik asserted that Labor Notes is not connected with TDU, TRF, Tom Leedham or the Leedham slate, or the Members First slate of Local Union 804.
The Leedham campaign stated it had no control over or input on the editorial policy of Labor Notes. The Leedham campaign stated that it did not suggest articles or subjects for Labor Notes or otherwise seek or encourage publication of articles favorable to candidate Leedham.
Analysis
In Hoffa Unity Slate, 2001 EAD 78 (January 8, 2001), Election Administrator Wertheimer determined that an article published in the December 2000 issue of Labor Notes fell within the scope of the media employer exception and therefore did not constitute a prohibited campaign contribution. We reach the same conclusion with respect to the Ron Carey interview Labor Notes recently published.
In applying the Rules to media communications, Election Officers have recognized a broad exception for "publications intended for and disseminated to the general public." Such publications have been held to be entitled to the "the greatest latitude in exercising the right to communicate" as required by the First Amendment to the U.S. Constitution. Hoffa, P743 (May 23, 1996). Under the "media employer exception" to the regulation of campaign contributions, past Election Officers have not asserted jurisdiction over "newspaper or magazine articles published by entities which are not owned or whose editorial policies are not controlled by candidates or committees acting on behalf of candidates." Pressler, P365 (February 22, 1996); Brennan, P971 (October 16, 1991); Scott, P969 (October 18, 1991). The "media employer exception" specifically applies to those publications that, like Labor Notes, target a labor audience. See, e.g., Sauwoir, P41, et seq. (August 16, 1995) (applying the "media employer exception" to the labor media).
Election Officers have consistently determined that the lack ownership or control of a media entity by any International officer candidate or any committee acting on behalf of such a candidate is the principal criterion for application of the "media exception." See Hoffa, supra (allegedly pro-Carey article in the Union Democracy Review); Pressler, supra (interview with Mr. Hoffa on radio station ROCK 103.5 in Chicago); Hasegawa, P161 (October 24, 1995) (article covering Hoffa campaign in The Labor Times); Scott, supra (article on 1991 Carey campaign in Labor Notes); Brennan, supra (reprinting of Carey campaign material in article on 1991 election in the Detroit Free Press).
Moreover, media entitled to application of the media employer exception need not include opposing viewpoints in the same communication. "Legitimate media communications often have an angle. The full story will not be found in any one communication. Therefore, the media exception is applicable even where the entity adopts a point of view." Rockstroh, P1003 (November 5, 1996).
Here, we have found no evidence that Labor Notes' editorial policy is controlled by TDU, TRF, Tom Leedham, the Leedham Slate, the Members First Slate of Local Union 804, or any other campaign or committee acting on behalf of a candidate campaign. Instead, as discussed above, our investigation established that Labor Notes' editorial policy is controlled solely by its two editors, thus qualifying Labor Notes for the media employer exception. For the foregoing reasons, the article in question does not constitute a campaign contribution.
Moreover, since we have determined that Labor Notes is independent from any IBT officer, representative, member or employee, we find no evidence that any Teamster member has "knowingly associated" with barred member Carey.
Accordingly, we DENY the 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
885 Third Avenue, Suite 1000
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. 20006-1416, 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
2006 ESD 318
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Leedham Campaign
320 7th Avenue #338
Brooklyn, NY 11215
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com