Protest Decisions

              September 29, 1995

VIA UPS OVERNIGHT

James P. Hoffa

September 29, 1995

Page 1

James P. Hoffa

September 29, 1995

Page 1

James P. Hoffa

September 29, 1995

Page 1

RE:  Election Office Case No. P-132-LU237-NYC

Gentlepersons:

A pre-election protests was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”), by

James P. Hoffa, a candidate for general president, in a letter dated August 21, 1995. 

Mr. Hoffa contends that Local Union 237 President Carroll “Carl” Haynes, a candidate running on the slate with General President Ron Carey, used local union funds to make forbidden campaign contributions to his and Mr. Carey’s candidacies in the form of a poll of Local Union 237 members.  Mr. Hoffa contends such actions violate Article XII,

Section 1(b)(1) of the Rules.

In response to the protest, Local Union 237 contends the poll of the local union membership is of a non-political nature, conducted to determine the opinions of the membership on various issues in order to assist the local union officers in determining priorities.  Although the local union admits the poll asked questions about Mr. Carey’s job performance and Mr. Hoffa’s candidacy, the local union contends the question about Mr. Carey was asked to determine if the membership understood “the community” beyond the local union, and the question about Mr. Hoffa was asked because the local union president was “just interested in knowing.”   Finally, the local union contends the results were not disseminated to anyone outside the local union, other than the article which was printed in the August 1995 Local 237 Newsline.

The investigation was conducted by              Regional Coordinator Barbara C. Deinhardt.

The investigation demonstrated that since Mr. Haynes became president of Local

James P. Hoffa

September 29, 1995

Page 1

Union 237 in 1993, the local union has commissioned an annual poll of the membership.  The 1994 and 1995 polls were conducted by Johnson Survey Research, Inc., which designed and administered the polls.  The polls were conducted by telephone, using detailed questionnaires.  The representatives sampled 600 members of the local union.  Those interviewed were chosen at random and their identities kept strictly confidential by the polling organization.[1]

The 1994 survey asked the members’ views on national, state and local political figures, policies and problems, member health care and health care reform, the local union welfare fund and collective bargaining priorities with New York City.  Finally, the survey contained some demographic questions (e.g., age, race, etc.).

The 1995 survey was conducted in July 1995.  It polled the members’ views on national, state, and local politics, policies and problems, working conditions and negotiating priorities (e.g., job security, welfare and benefits, wage increases, etc.) and what media forums members utilized to get information.  The poll contained similar demographic questions as the 1994 poll.  Unlike the 1994 poll, however, the 1995 survey asked members the following questions:

10.              On some other matters . . . how would you rate the job that Ron Carey, the President of the International Brotherhood of Teamsters is doing . . . excellent, pretty good, only fair, or poor?

11.              James Hoffa, Jr., the son of Jimmy Hoffa, may run for President of the Teamsters next year . . . how do you feel about that?

(probe - get specifics)

12.              Generally speaking, do you have a favorable or unfavorable opinion of Carl Haynes, the President of Local 237?

How would you rate the job that Carl Haynes is doing . . . excellent, pretty good, only fair, or poor?

What are some of the things you like about Carl Haynes?

(probe - get specifics)

What are some of the things that you dislike about Carl Haynes?

(Emphasis in original).  These questions were not in the 1994 poll of Local Union 237 members.

James P. Hoffa

September 29, 1995

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As delivered to the Local Union, the results of the survey were contained in 45 pages of statistical results in which the responses to each question were cross-analyzed with the demographic factors (e.g., type of public employee--housing, citywide, Long Island--sex, age, number of years member of Local Union 237 and race).  The 1995 poll cost the local union $11, 500.

In the August 1995 Local 237 Newsline, portions of two pages of the publication were devoted to reporting to the members on the results of the poll.  On the questions cited above, the newspaper read:

On a political issue close to Teamsters, Ron Carey, general president of the IBT, got support from a slight majority of Local 237 members.  Some 9% said he was doing an “excellent” job and 42% said he was doing “pretty good.”  Some 19% said they considered Carey’s job “only fair” and 5% rated it as “poor.”  Some 25% were unsure.

A question regarding James Hoffa, Jr., who is expected to run against Carey for general president next year, elicited a response from little more than one third of the respondents.  Hoffa was unknown to many Local 237 members.  But to those who were familiar with both men, 19% expressed a negative view of Hoffa’s possible run and 16% were positive.

Local 237 President Carl Haynes was given a great vote of confidence by those polled, with almost two-thirds of those surveyed saying they held a favorable opinion of the way he was handling union affairs.  Only 8% expressed an unfavorable opinion, while 28% were unsure.

There is no dispute that other than the results published in the local union newspaper, Mr. Haynes did not share the specific questions asked or results of the 1995 poll with the candidates for general president or other candidates for international vice president.

The Rules, at Article XII, Section 1(b), prohibit employers and unions from making any “campaign contribution,” which is defined as any contribution “where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate [for the 1996 International Convention delegate or alternate delegate of International Officer position].”

In determining whether a prohibited contribution has occurred under the Rules, the Election Officer is guided by the cases that apply Section 401(g) of the Labor-Management Reporting and Disclosure Act, as amended, (“LMRDA”), which contains similar prohibitions on the use of union and employer assistance in campaigning and is incorporated into the Rules, pursuant to Article XIII.  The LMRDA prohibits union assistance only if the activity supported by such assistance promotes the candidacy of a person in a regulated election. 

James P. Hoffa

September 29, 1995

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Mr. Carey, Mr. Hoffa and Sam Theodus were all candidates for general president when the poll was taken and the results were published in the local union newspaper.  See Martin, et al., P-010-IBT-PNJ, et seq. (August 17, 1995); Crawley, P-027-LU988-PNJ,

et seq. (August 23, 1995); Jacob, P-071-LU391-EOH (September 7, 1995).  In addition,

Mr. Haynes became a candidate for international vice president on Mr. Carey’s slate in early August 1995.  Several other candidates for international office have either declared their candidacy, are part of Mr. Carey’s slate, or have filed a Campaign Contribution and Expenditure Report with the Election Officer indicating they have accepted contributions or funds in support of their campaigns.[2]  Thus the results of the 1995 poll conducted by Local Union 237 became available after numerous members had become candidates for international Union officer positions.

Most of the questions in the 1995 poll seek information about valid issues of legitimate concern to the local union and its members.  The views of the local union membership on local, state and national politics and issue priorities are a legitimate concern to Local

Union 237 officers who represent solely public employees.  The bargaining priority question assists the officers in preparing for contract negotiations.  The local union has asserted that the media questions supplied the union with the ability to target advertisements and letters to the editors expressing the local unions opinion on positions taken by New York City Mayor Rudolph Guiliani and other politicians.

However, Questions 10-12 which seek opinions on the job Mr. Carey is doing, on

Mr. Hoffa’s bid for general president, and on members’ opinions of Mr. Haynes, offer information directly useful and relevant to Mr. Carey as a candidate for reelection, to

Mr. Haynes as a candidate on Mr. Carey’s slate, and potentially to Mr. Carey’s entire slate.  Due to the cross-analysis, these questions give these candidates an in-depth view of how the members of Local Union 237 perceive Mr. Carey, Mr. Hoffa and Mr. Haynes. 

The local union argues that the data has never been shared with Mr. Carey or any other candidate on his slate other than Mr. Haynes.  The Rules, however, do not require that a candidate use a campaign contribution, only that the contribution has a “foreseeable effect” to influence the election of a candidate.

Viewed under the totality of the circumstances, the Election Officer finds that the questions concerning how the members viewed Mr. Carey, Mr. Hoffa and Mr. Haynes in the

James P. Hoffa

September 29, 1995

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1995 poll constitute the use of union funds to support candidates in violation of Article XII, Section 1(b) of the Rules. 

This protest also implicates another section of the Rules.  The Rules, at Article VIII, Section 8(a), provide the following prohibition, “No publication or communication financed, directly or indirectly, by a Union may be used to support or attack any candidate or the candidacy of any person, except as authorized by Sections 8 and 9 of this Article.”  In reviewing the content of articles in union publications, the Election Officer looks to the tone, content and timing to determine what constitutes campaigning.  See, e.g., Ruscigno,

P-067-LU20-EOH (July 19, 1995).  The Election Officer also reviews the specific context in which the communication takes place.  Martin, supra. 

In the August 1995 edition of Local 237 Newsline, a publication financed by the local union, the results of the 1995 poll were published in summary fashion as previously stated.  Insofar as the polling of the members with union funds on Questions 10-12 was a violation of

Article XII, Section 1(b) of the Rules, the Election Officer further finds that the publication of the results in the local union publication supports the candidacies of Mr. Carey and

Mr. Haynes and attacks the candidacy of Mr. Hoffa, in violation of Article VIII, Section 8(a) of the Rules. 

Accordingly, the protest is GRANTED.

When the Election Officer determines that the Rules have been violated, she may “take whatever remedial action is appropriate.”  Article XIV, Section 4.  In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.  Martin, supra.

With regard to the poll, the Election Officer has considered various remedies and has determined that in this case the appropriate remedy is for Mr. Haynes’ campaign to reimburse Local Union 237 for the costs of the survey as they relate to Questions 10-12 and to the questions that provided the data with which the above-described questions were cross-tabulated in the survey results provided to Local Union 237 and to provide the information from the poll to other candidates for International office as set forth below. In ordering that certain portions of the poll be disclosed to other candidates, the Election Officer recognizes that she is ordering a different remedy than in another case issued today, Giacumbo, et al., P-001-IBT-PNJ,

et seq. (September 29, 1995).  In Giacumbo, the Election Officer declined to disclose the polling information to other candidates because the International Union closely held and did not publicize the results of the poll, and because there were strong legitimate concerns for retaining the confidentiality of the poll.  Here, Local Union 237 published the results of the poll in its newspaper and the same concerns regarding confidentiality are not present.  Moreover, the data from Questions 10-12 is easily isolated and disclosed to other candidates without revealing data concerning legitimate non-candidate-related questions in the poll.

James P. Hoffa

September 29, 1995

Page 1

To determine the cost of the survey, Local Union 237 shall, within two (2) days of receipt of this decision and order, request from Johnson Survey, Inc., a bill representing what that company would have charged the Haynes campaign to conduct this poll among the same number of members, asking only Questions 10-12, and the questions that provided the data with which the above-named questions were cross-tabulated in the survey results provided to Local Union 237.  Any cost for obtaining this invoice shall be borne by Mr. Haynes’ campaign.  Local Union 237 shall, within fourteen (14) days of this decision and order, present this invoice to the Haynes campaign and to the Election Officer for approval.  Thereafter, the Election Officer shall issue a Supplemental Decision determining the amount that the Haynes’ campaign will reimburse Local Union 237 for its campaign contribution.  Thirty (30) days after issuance of the Supplemental Decision, the Haynes’ campaign shall reimburse its campaign contribution the amount designated by the Election Officer.  The Haynes’ campaign shall submit an affidavit that it has made payment within this time frame.

Mr. Haynes shall send the attached “Notice to Candidates for International Union Office” advising Mr. Hoffa, Mr. Theodus, Mr. Carey, Mr.Young, Mr. Wsol, Mr. Hogan, Mr. Giacumbo, Mr. Sever, Mr. Benson, Ms. Kilmury, Mr. Riojas, Mr. Nelson, Mr. Cox, Mr. Kornegay, Mr. Lopez, Mr. Padellaro, Mr. Morris, Mr. Gilmartin, Mr. Cashman,

Mr. Urman, Mr. Skelton, Ms. Anderson, Mr. Owens, Mr. Fields, Mr. Mee, Mr. Leedham, Mr. Mireles, Mr. Belk, Mr. Mims, Mr. Lacroix and Mr. Thibault that they may have access to data from Questions 10-12, by making a request to Mr. Haynes, in writing, within fourteen (14) days of receipt of the notice.  Thereafter, within two (2) days after the fourteen (14) days have elapsed, Mr. Haynes shall provide a copy of the following tables and data from the 1995 poll of Local Union 237 members to the candidates listed below who make a written request from Mr. Haynes:  Table 14 (page 17); Table 15 (pages 18-19); Table 16 (page 20); Table 18

(pages 22-23) and Table 19 (pages 24-25).  Within two (2) days of having provided the information as set forth in this paragraph, Mr. Haynes shall submit an affidavit to the Election Officer demonstrating compliance with this paragraph of the decision and order.                

In addition, Local Union 237 shall cease and desist from asking any questions about individual candidates for International office, including Mr. Carey, Mr. Hoffa and

Mr. Haynes, until the election has taken place.

As a remedy concerning the violation of Article VIII, Section 8 of the Rules, the Election Officer determines the appropriate remedy for this violation is for Local Union 237 to make space in its publication available to Mr. Hoffa.  Mr. Haynes shall send the attached “Notice to James P. Hoffa” offering him the opportunity to submit, within fourteen (14) days of receipt of Mr. Haynes’ letter, a statement of no more than 160 words -- the length of the paragraphs which refer to Mr. Carey, Mr. Hoffa and Mr. Haynes.  Local Union 237 shall publish any such statement submitted by Mr. Hoffa in the same location (the bottom right hand column on page 3) in the next edition of Local 237 Newsline.  Preceding the statement by

Mr. Hoffa, Local Union 237 shall publish the following statement of the Election Officer in Local 237 Newsline:

James P. Hoffa

September 29, 1995

Page 1

The Election Officer for the International Brotherhood of Teamsters has the authority to supervise all phases of the International Union delegate and officer elections.  These elections, including the campaigning process are governed by the Rules for the 1995-1996 International Union Delegate and Officer Election (“Rules”).  The Rules strictly prohibit Local Unions contributions “where the purpose, object or foreseeable effect of the contribution is to influence, positively or negative, the election of a candidate.”  The Rules also prohibit a union-financed publication from being used to support or attack any candidate or the candidacy of any person.

The Election Officer has found that by using funds of Local Union 237 to finance four questions of a poll which had the foreseeable effect of influencing the election of particular candidates for election as International officer, Carl Haynes violated the Rules.  In addition, the Election Officer has found that the publication of the results of these questions in the August 1995 edition of Local 237 Newsline was also in violation of the Rules. The Election Officer has directed that Local Union 237 publish the following response of James P. Hoffa, a candidate for general president of the IBT:

Within two (2) days of publication of Mr. Hoffa’s statement, or if no statement is submitted, within two (2) days after the fourteen (14) days have elapsed, Local Union 237 shall submit an affidavit to the Election Officer setting forth in detail the steps it has taken to comply with this paragraph of the decision and order.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

              Kenneth Conboy, Esquire

              Mudge, Rose, Guthrie, Alexander & Ferdon

              180 Maiden Lane, 36th Floor

              New York, NY  10038

              Fax (212) 248-2655

James P. Hoffa

September 29, 1995

Page 1

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C.  20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:              Kenneth Conboy, Election Appeals Master

Regional Coordinators

NOTICE TO CANDIDATES FOR INTERNATIONAL OFFICE

The Election Officer has determined that I violated the Rules for the 1995-1996 International Union Delegate and Officer Election by using Local Union 237 funds to finance questions in a poll of Local Union 237 members which sought information about Ron Carey, James P. Hoffa, and Carl Haynes, all candidates for International office.  She has directed that each candidate for International Office, upon your written request, receive a copy of the data from the poll resulting from Questions 10-12, which are included in Table 14 (page 17), Table 15 (pages 18-19), Table 16 (page 20), Table 18 (pages 22-23) and Table 19 (pages 24-25).  Please advise the undersigned within fourteen (14) days of receipt of this Notice if you desire to receive a copy of such information.

___________________________________

Carl Haynes

President Local Union 237

NOTICE TO JAMES P. HOFFA

The Election Officer has found by publishing the results of questions in a poll taken of the Local Union 237 membership in July 1995 pertaining to Ron Carey, James P. Hoffa and Carl Haynes in the  August 1995 edition of Local 237 Newsline, Local Union 237 violated the Rules for the 1995-1996 International Union Delegate and Officer Election.   You have the opportunity to submit, within fourteen (14) days of receipt of this notice, a statement of no more than 160 words--the length of the paragraphs which refer to Mr. Carey, Mr. Hoffa and Mr. Haynes.  If you submit such a statement, Local Union 237 shall publish it in the same location (the bottom right hand column on page 3) in the next edition of Local 237 Newsline.

_______________________________

Carl Haynes

President, Local Union 237