Protest Decisions

              March 19, 1996

VIA UPS OVERNIGHT

Richard McNeeley

622 Mingus Avenue

Prescott, AZ 86301

Teamsters for Reform Slate

c/o Richard Esquivel, Secretary-Treasurer

Teamsters Local Union 104

1450 S. 27th Avenue

Phoenix, AZ 85009

Re:  Election Office Case No. P-580-LU104-RMT

Gentlemen:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) by Richard D. McNeeley, a member of Local Union 104 and candidate for delegate on the Arizona Teamsters Restore the Pride slate.  Mr. McNeeley asserts that Local Union 104 gave improper support to the rival slate, Teamsters for Reform (Supporting the Ron Carey slate) (“Reform” slate), when the local union published its most recent newsletter.  Mr. McNeeley filed this protest against Local Union 104 and the Reform slate.

This protest was investigated by Regional Coordinator Jonathan Wilderman.

The Reform slate is headed by Local Union 104 Secretary-Treasurer Richard Esquivel.  The slate consists of nine candidates for delegate and six candidates for alternate delegate.  Seven of the delegate candidates are the seven members of the local union’s executive board.[1]  An eighth candidate for delegate on the Reform slate is Jim Benson, an IBT vice president.

Richard McNeeley

March 19, 1996

Page 1

When Mr. Esquivel took office on December 28, 1994, Local Union 104 had discontinued its newsletter.  He decided to begin publication again on a quarterly basis, although it has not been published that frequently.  The June 1995 issue (Vol. I, No.1) was sent to the mail house on June 22, 1995 and mailed to the membership on June 23, 1995.  The Fall 1995 issue (Vol. I, No. 2) was sent to the mail house on October 17, 1995 and mailed on October 19, 1995.  The issue in dispute, January 1996 (Vol. II, No. 1), was sent to the mailhouse on February 2, 1996 and mailed on February 8, 1996.

The January 1996 issue is eight pages, most of which contain material about Local Union 104’s reaffiliation with another joint council, Joint Council 92 (“JC 92”), on

November 29, 1995.  The first page contains three photographs, two of which include members of the Reform slate.  The lead photo relates to the reaffiliation and shows a group of six local union, joint council, and IBT officers and members, including Mr. Esquivel and

Mr. Benson.  Another photo relates to Teamster logos appearing on an employer’s trucks and shows two people, including Mr. Davis.  The third photo is of a strike rally.

Page two of the newsletter contains the “Secretary-Treasurer’s Message” from

Mr. Esquivel, introducing the lead story of the reaffiliation and another story on efforts to ensure that the North American Free Trade Agreement (“NAFTA”) does not result in unequal safety requirements and opportunities for U.S. and Mexican drivers.  The rest of the message talks about the importance of union organization and cooperation.  A photo shows

Mr. Esquivel and two other members.  One box contains a list of the local union’s executive board, and another contains the photo captions for the first page.

The third page is devoted to the article on safety standards and job opportunities under NAFTA, and three photos.  It discusses actions taken by the U.S. Department of Transporta-tion, the Arizona Legislature, and IBT organizations.  The article quotes two Reform slate members, Mr. Esquivel and Mr. Benson.  One of the photos includes Mr. Esquivel in a group of three members. 

Pages four, five and six are devoted to reaffiliation with JC 92, and contain seven photos.  The article discusses savings in per capita tax payments, easier access, improved service, better communications, Local Union 104 representation on JC 92’s executive board, and common goals.  Mr. Esquivel is quoted once, and he is mentioned as the new recording secretary for JC 92.  Mr. Esquivel is shown in two of the seven photos; Mr. Benson is shown in one.  Twenty-five other members are shown and named.

Pages seven and eight contain a profile on a member who competes in National Rodeos, the “Retirees’ Corner,” a photo of seven members of the Local Union 104 office staff, and a photo of six members involved in a meeting on theatrical trade organization, including Mr. Esquivel and Mr. Benson.

Richard McNeeley

March 19, 1996

Page 1

Article VIII, Section 8(a) of the Rules states that a union-financed publication or communication may not be “used to support or attack any candidate or the candidacy of any person.”  Mr. McNeeley asserts that the January 1996 issue was “at least one month late” and suggests that Local Union 104 timed publication so that members would receive it about mid-way between the local union’s nomination meeting (February 3) and the ballot mailing date (March 4).  He further asserts that the newsletter “featured many of the Teamsters for Reform slate.”

In reviewing union-financed publications for improper campaign content, the Election Officer looks to the tone, content and timing of the publication.  Martin, P-010-IBT-PNJ,

et al. (August 17, 1995) (decision on remand), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995).  Turning first to content, the Election Officer finds that the January 1996 issue does not feature “many” of the 15 Reform slate members, but only three:  Messrs. Esquivel, Benson and Davis.[2]

Of those three, Mr. Davis appears in only one of 17 photos in the issue.  Only Messrs. Esquivel and Benson have significant coverage.

In Martin, the Election Officer recognized that union officers and officials have a “right and responsibility to exercise the powers of their office and to advise and report to the membership on issues of general concern” (quoting Camarata v. International Bhd. of Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979), aff’d 108 L.R.R.M. (BNA) 2924 (D.C. Cir. 1981).  The Election Officer also recognized in Martin that:

. . . an otherwise acceptable communication may be considered campaigning if it goes on to make a connection with the election or election process, if it involves excessive direct or indirect personal attacks on candidates, or, alternatively, involves lavish praise of candidates.  Otherwise, legitimate coverage of the activities of a union official running for office may constitute campaigning if it is excessive.

In this case, the only question is whether the coverage of Messrs. Esquivel and Benson is excessive.  There is no mention of the election or candidacy.  No one is attacked, and

Messrs. Esquivel and Benson are not praised.  The coverage is either factual, or it consists of direct quotes.

Richard McNeeley

March 19, 1996

Page 1

The Election Officer finds that Mr. Esquivel’s “Secretary-Treasurer’s Message” was an appropriate exercise of his right and responsibility to communicate with members.  He does not tout his own role in the matters discussed, and the positions he advocates are general in nature.  See Clark, P-473-LU273-PGH (March 7, 1996) (addressing allegation with respect to local union’s president’s column).  Furthermore, the newsletter’s articles on the local union’s reaffiliation with JC 92 and on safety standards and job opportunities under NAFTA are newsworthy and of legitimate concern to members.  The reporting is factual.  The inclusion of quotations from Messrs. Esquivel and Benson and the pictures of them do not seem out of proportion to their roles as secretary-treasurer of the local union and IBT vice president, respectively.  See Hamada, P-335-LU763-PNW et seq. (February 20, 1996); Lamy, P-258-IBT-EOH (December 18, 1995); Hoffa, P-202-IBT-EOH (November 17, 1995).

With respect to the alleged delay in publishing the January 1996 newsletter, the Election Officer finds that about 17 weeks separated the Vol. I, Nos. 1 and 2, and about 16 weeks separated Vol. I, No. 2 and the dispute issue.  While it appears that Local Union 104 has not yet established a regular publication schedule, the timing of these issues seems consistent.  See Saavedra, P-485-LU490-CSF (March 5, 1996) (timing of letters found consistent).  The local union informed Regional Coordinator Wilderman that the mailing of the January 1996 newsletter from the mail house was delayed a few days due to a problem with a mailing list.  The Election Officer finds that there was no campaign-related motive.

For the foregoing reasons, the protest is DENIED.

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, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 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

Jonathan Wilderman, Regional Coordinator