Protest Decisions

              June 14, 1996

VIA UPS OVERNIGHT

James P. Hoffa

June 14, 1996

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI 48098

Bradley T. Raymond

Finkel, Whitefield, Selik,

Raymond, Ferrara & Feldman, P.C.

32300 Northwestern Highway

Suite 200

Farmington Hills, MI 48334

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

John Sullivan, Associate General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

James P. Hoffa

June 14, 1996

Page 1

Re:  Election Office Case No. P-792-IBT-EOH

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 James Hoffa, a candidate for general president.  Mr. Hoffa alleges that the IBT used The Teamster, the international publication of the IBT, to support the candidacy of Ron Carey, in violation of the Rules.  Mr. Hoffa also alleges that the IBT has used union resources to compile and provide the Carey campaign with literature and information not available to other candidates, in violation of the Rules.  

James P. Hoffa

June 14, 1996

Page 1

Specifically, the protester states that, under the “tone, content, and timing” analysis used by the Election Officer to determine whether published material is campaign-oriented, the article entitled “1995 Financial Report:  Reform Paying Off for Teamster Members” published in the June 1996 issue of The Teamster violates the Rules, because, as the protester states, the article “purports uncritically to enumerate various so-called achievements of the Carey administration . . .”  See Martin, et al., P-010-IBT-PNJ, et seq. (August 17, 1995) (decision on remand), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995).  The protester also alleges that a campaign brochure entitled “An Update on Teamster Reform” published by the Carey slate campaign prior to the publication of the June 1996 issue of The Teamster contains language nearly identical to the text of the protested article.  Thus, the protester reasons that “the information [printed in the protested article] was put together and formatted either simultaneously [with the production of the campaign brochure] and using the same source materials, or with Mr. Carey’s election campaign singularly in mind.”  The protester concludes that such a contribution by the IBT amounts to an impermissible use of union resources to aid the Carey campaign, in violation of the Rules.

The IBT responds that the protested article represents a “legitimate reporting of items of newsworthy interest to the membership.”  According to the IBT, Mr. Carey is only mentioned in his official capacity as a union officer, and the article does not support or attack the candidacy of any slate or individual.  The IBT also denies any collusion with the Carey campaign in the production of the protested campaign brochure.

Mr. Carey denies that any information was improperly shared between the IBT and his campaign organization.  He states that his campaign staff adapted language printed in the prior issues of The Teamster and IBT press releases to prepare the protested brochure. 

Regional Coordinator Bruce Boyens investigated the protest.

1.              Allegation that the Article is Campaigning

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.”  In reviewing union-financed communications for improper campaign content, the Election Officer looks to the tone, content and timing of the publication.  Martin, supra.  The Election Officer also considers the context in which the communication appeared.

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.

The protested article immediately precedes the IBT 1995 Financial Report, prepared by the IBT and audited and approved by Grant Thornton. The text of the article is exactly one page in length.  It is preceded by a page half-occupied by the article’s title.  The other half of the page displays a photograph of a demonstration of Teamster members.  The article is divided into seven sections:  “Budget Balanced,” “Assets Up,” “Restarting Strike Benefits,” “Membership Up’” “Changing Priorities,” “Cutting Benefits for Officials,” and “Returning Money to Locals.”

James P. Hoffa

June 14, 1996

Page 1

An examination of the article preceding the 1994 financial report, printed in the June 1995 issue of The Teamster, reveals that the two articles are substantially similar.  The 1995 article, is also one-page long and is divided into seven sections:  “Controlling Costs,” “Cutting Fat for Officials,” “Slashing Bureaucracy,” “Reducing Membership Loss,” “Reversing the Decline in Assets,” and “The Strike Fund.”  Under these headings, the same issues reported on the 1996 article are reported on as they existed in 1995.  The two articles even share some identical language.  One major difference is that the 1995 article mentions Mr. Carey by name eight times whereas, in the 1996 article, Mr. Carey’s appears only twice; both appearances are in a section that describes Mr. Carey’s proposal to reduce his own pension and that describes his past actions to lower his salary and pension credit.

Mr. Hoffa previously protested the 1995 article in P-077-IBT-PNJ.  His protest was consolidated with related protests, on which the Election Officer ruled in her decision in Martin, supra.  In her decision, she found that the article did not violate the Rules.  She concluded:

While the introduction to the financial report highlights the accomplishments of Mr. Carey and his administration, the article does not mention Mr. Carey’s candidacy or the International officer or delegate elections.  The financial status of the union is clearly a subject matter of general interest to IBT members, including how officers have responded to problems now being faced by the union.  That the article reports on Mr. Carey’s and the General Executive Board’s responses to the financial problems being faced by the union does not render it campaign literature.[1]

Since the tone and content of the 1995 and 1996 articles are substantially similar, and since the Election Officer has already ruled that such an article did not violate the Rules when it was printed in June 1995, the issue to be addressed in the current protest is whether the timing of the publication of the 1996 article was such that its otherwise inoffensive tone and content now constitute a Rules violation.

Because of the extreme proximity of the IBT International Convention, the Election Officer acknowledges that the standard for determining what is campaigning in a union-financed publication is now broader than it was in June 1995.  Taking this heightened sensitivity into account, however, the article currently protested does not violate the Rules.  As stated above, 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.”  Martin, supra.  The IBT’s financial health is of paramount concern to its membership.  Further, neither the election nor the convention are mentioned, directly or indirectly, in the article.

James P. Hoffa

June 14, 1996

Page 1

The tone of the article is neither laudatory towards Mr. Carey nor abusive towards his political opponents, and the article presents no basis to indicate it was intended to influence, or even reference, the campaign.  The lack of partisan slant or campaign-related rhetoric in the article indicates that its publication does not violate the Rules, regardless of the proximity of the convention.

2.              Allegation of Improper Collusion Between the IBT and the Carey Campaign

The protester has cited 15 clauses of the Carey campaign brochure “An Update on Teamster Reform” that are similar or identical to clauses appearing in the protested article.  The protested brochure is a long booklet separated into sections that each extol the merits of the Carey slate in specific areas of concern to IBT members.  The protested citations appear in Sections III and V of the publication, entitled “Putting Our Financial House in Order” and “Recruiting New Teamsters,” respectively. The brochure contains a note on its contents page in which its authors state, “Much of the information [contained in this brochure] is adapted from publicly available reports previously issued by the International Union.” 

The protester contends that the “publicly available report[ ]” adapted by the Carey campaign into the 15 cited clauses was in fact the June 1996 issue of The Teamster which had not yet been distributed when the brochure was produced.  Thus, he reasons, IBT resources were used to provide the Carey campaign with information not available to other candidates or specifically produced for the benefit of his campaign.

Mr. Carey responded that his campaign staff drew the protested language from articles printed in past issues of The Teamster.  Specifically, he states that most of the protested citations were adapted from the introduction to the 1994 IBT financial report, printed in the June 1995 issue, and that other citations were adapted from articles appearing in the March 1996 and September 1995 issues and from the corresponding language in IBT press releases.

An examination of the the article introducing the 1994 financial report printed in the June 1995 issue reveals that 10 of the 15 protested citations appear in identical or very similar form in the article printed in 1995.  Another three citations are similar to corresponding citations in the 1995 article but contain additional information not found in either the 1995 article or the 1996 article protested here.  Of the two remaining citations, one appears in almost identical form in an article entitled “Teamster Membership Rose in 1995, Reversing

16 Years of Decline” in the March 1996 issue of The Teamster and the other is a summary of information included in an article entitled “International Union to Pay Strike Benefits of

$55 Per Week” printed in the September 1995 issue.

Thus, the investigation revealed that all of the protested language was either substantially similar to language printed and released in The Teamster prior to the preparation of the brochure, which was finalized in May 1996, or did not appear in the June 1996 article at all.  This information was public knowledge long before the publication of the Carey brochure.

James P. Hoffa

June 14, 1996

Page 1

Based on this evidence, the Election Officer finds meritless the allegation that the IBT provided the Carey campaign with an advance copy of the June 1996 article.  Because of the public nature of the protested language and information, the Carey campaign staff members who prepared the brochure had no need to collude with the IBT to obtain them.  The use of  publications already issued by the IBT to its membership in order to craft campaign literature is not a violation of the Rules.

For the forgoing 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, 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

Bruce Boyens, Regional Coordinator