IN RE: WADE LASZLO, Protestor.
Protest Decision 2011 ESD 147
Issued: March 2, 2011
OES Case No. P-133-021411-MW
Wade Laszlo, member of Local Union 320, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that Joint Council 32 violated the Rules by publishing a newsletter containing photos of Sue Mauren that coincided with mailing of ballots in Local Union 320's delegates and alternate delegates election.
Election Supervisor representative Joe Childers investigated this protest.
Findings of Fact
Mauren is principal officer of Local Union 320 and a delegate candidate on a slate opposing Laszlo's slate. Ballots were mailed in this election on February 11, 2011.
Mauren also is president of Joint Council 32. The joint council mailed the quarterly edition of its newsletter on February 10, 2011. The cover page of the newsletter celebrates DFL candidate Mark Dayton's victory in the November 2010 Minnesota governor's race, under a headline that read "Victory - Teamsters Drive Mark Dayton to Minnesota's Governorship." The cover displays a collage of four photos of Dayton with various supporters; the lower left photo depicts Dayton and Mauren smiling broadly with hands clasped together above their heads. Page 2 of the newsletter contains an article by Mauren titled "Governor Dayton Fights Back for Working Families." The article reports on Dayton's threat to veto a Republican-sponsored measure in the Minnesota legislature that would reduce state employment rolls by 15%, freeze teachers' pay, and limit the right to strike; the article also compares Dayton's record with that of former governor Tim Pawlenty. Neither the front nor second page of the newsletter mentions Local Union 320's delegates election, Mauren's candidacy in it, criticisms of any candidate opposing Mauren, or the actions or accomplishments of Mauren or her administration generally.
Investigation showed that the joint council's political action committee supported Dayton's candidacy throughout his campaign, and earlier editions of the newsletter urged members to vote for him in the November 2010 election. Linda Ricci and Linda Hoidahl, two employees who edit the newsletter, initially intended to run only the photo of Dayton and Mauren on the cover of the February edition, but Ricci and Mauren sought guidance from OES when they recognized that the publication date would be close to the date for mailing of ballots in Local Union 320's delegates. Bill Broberg, OES regional director for the Midwest Region, discussed the matter and approved the cover as published, which showed the four-photo collage, only one of which depicts Mauren. Broberg concluded that the photo of Mauren with Dayton was newsworthy, as Dayton's election was important to Minnesota Teamsters.
The Joint Council newsletter is published four times a year, in February, May, September, and November. Deadlines and mailing dates for the February 2011 edition were developed in August 2010 by Ricci and Hoidahl, who reviewed upcoming meeting schedules for the 13 local unions comprising the joint council; they also examined the mailing dates for previous years' editions of the February newsletter. On January 4, 2011, they sent a memo to the constituent local unions advising of the deadlines for submission of articles and the schedule for mailing.
Accurate Mailing Service printed and mailed the February 2011 edition, a task it has performed for many years. Accurate received the mailing list electronically from the IBT, labeled the newsletters, and delivered them to the post office for mailing. The February 10, 2011 mailing date was consistent with past years; the 2009 and 2010 editions of the February newsletter were mailed on February 16 and 10, respectively.
Analysis
Article VII, Section 8(a) prohibits use of a union-financed publication "to support or attack any candidate or the candidacy of any person." Specifically, the provision states that such a publication shall not:
(1) contain pictures or articles stating or indicating support of the candidacy of a particular candidate;
(2) use a larger or more attractive picture of someone than had previously been used if that person is a candidate, unless there is a valid journalistic reason for it;
(3) print uncomplimentary pictures of any candidate;
(4) print features and accompanying photographs about insignificant or unnewsworthy events in which the accomplishments or qualities of any candidate are heralded;
(5) contain pictures or articles reporting on the activities of a particular candidate where the same or similar activities of other similarly situated candidates for the same office(s) have not been similarly reported; or
(6) carry 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.
We assess union-financed communications under the tone, content and timing test:
To establish a violation of Section 401(g), it is not necessary that the questioned publication be explicitly or implicitly committed to endorsing specific candidates or attacking the opposition. Rather its overall tone, timing, and content must be evaluated to determine whether there is any blatant encouragement of the incumbent [or challengers].' Donovan v. Local 719, United Automobile, Aerospace and Agricultural Implement Workers of America, 561 F.Supp. 54, 58 [113 LRRM 2902, 2906] (N.D. Ill. 1982); accord Telephone Workers, 703 F.Supp. at 206, Usery v. International Org. Masters, Mates and Pilots, 538 F.2d 946, 949 [92 LRRM 3297] (2d Cir. 1976); Liquor Salesmen's Union Local No. 2, 334 F.Supp. at 1369, 1377 [78 LRRM 2020], aff'd, 444 F.2d 1344 [78 LRRM 2030] (2d Cir. 1971); Wirtz v. Independent Workers Union of Florida, 272 F.Supp. 31, 33 [65 LRRM 2924] (M.D. Fla. 1967). Regarding content, federal regulations interpret LMRDA §401(g) as 'prohibit[ing] any showing of preference' by union-financed publications through praise, endorsement, criticism or attack directed towards a candidate, 29 C.F.R. §452.75 (1994); accord McLaughlin v. American Fed'n. of Musicians, 700 F.Supp. 726, 734 [132 LRRM 2508] (S.D.N.Y. 1988) ('promotion of a candidate under §401(g) includes both affirmative statements about the candidate and negative references about the opposition.').
In addition to the timing, tone, and content, courts often consider 'the circumstances surrounding the challenged publications'. Am Fed'n. Musicians, 700 F.Supp. at 734 (citing Liquor Salesmen's Union, 334 F.Supp. 1377). In American Fed'n of Musicians, the court looked beyond the text of the challenged articles to consider the legitimate need for reporting on and discussion of an incumbent union president's activities in a union-financed newspaper, even though such reporting could impact an upcoming election. American Fed'n. Musicians, 700 F.Supp. at 734. The court held that 'the continued direct and indirect personal attacks [on the incumbent] ... constituted more than just reporting on issues that concerned the union.' Id. at 735.
Reich v. Teamsters Local 843, 149 LRRM 2358, 2364 (D.N.J. 1994); see also, e.g., Camarata v. Teamsters, 102 LRRM 3053 (D.D.C. 1979).
Where the tone and content of union-financed publications are politically neutral, as here, a Rules violation will generally not be found based solely on the timing of the publication. As the Election Appeals Master explained in Hicks, 06 EAM 22 (March 15, 2006), affirming 2006 ESD 110 (March 2, 2006), "elected local officers should not, and cannot, be constrained by the Rules from discharging their responsibilities to the membership in reporting on matters of vital interest, as long as the reportage is politically neutral."
On these facts, we find that the newsletter did not violate the Rules. The photo of Mauren with Dayton on the cover page of the newsletter and Mauren's article on the second page reported on a matter of vital interest to the membership and did so in politically neutral terms. Further, the timing of the newsletter was consistent with that used for the February edition in previous years.
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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, 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
2011 ESD 145
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Hall 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Wade Laszlo
5425 152nd Avenue
Ramsey, MN 55303-6115
steward320@msn.com
Sue Mauren, Secretary-Treasurer
Teamsters Local Union 320
3001 University Avenue SE #500
Minneapolis, MN 55414
local320@teamsterslocal320.org
Joe F. Childers
Getty & Childers, PLLC
250 West Main Street, Suite 1900
Lexington, KY 40507
childerslaw@yahoo.com
William C. Broberg
1108 Fincastle Road
Lexington, KY 40502-1838
wcbroberg@aol.com
Maria Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com