Protest Decisions

              September 26, 1996

VIA UPS OVERNIGHT

Steven Baudo et al.

September 26, 1996

Page 1

Steven Baudo

2750 S. 72nd Street

West Allis, WI  53219

Nancy Youngerman

2033 Willow Trail

St. Charles, MO  63303

William D. Barbre

566 Meadow Lane

Lisle, IL  60532

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

Brennan, Davis, Majka Slate

c/o Lawrence Brennan, President

Teamsters Joint Council 43

2801 Trumbull Avenue

Detroit, MI  48216

Paul Alan Levy

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC  20009

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

Nathaniel K. Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY  10036

Martin Wald

Schnader, Harrison, Segal & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA  19103

Steven Baudo et al.

September 26, 1996

Page 1

Re:  Election Office Case Nos.              P-945-LU344-NCE

P-974-LU705-NCE

Gentlepersons:

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

Steven Baudo et al.

September 26, 1996

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Steven Baudo and Nancy Youngerman, members of Local Unions 344 and 688, respectively, and William Barbre, a member of Local Union 705.  Because of the related nature of these protests, they were consolidated by the Election Officer.

In P-945-LU344-NCE, Mr. Baudo and Ms. Youngerman assert that James P. Hoffa, a candidate for general president, and slate members in a slate comprised of Lawrence Brennan, Coleman Davis and Terry Majka, candidates for regional vice president, have used the commercial logo of United Parcel Service (“UPS”) in their campaign literature.  The protesters allege that the use of this logo constitutes the receipt of an employer campaign contribution, in violation of the Rules.  The protesters also contend that if UPS gave the candidates permission to use the logo or was aware of its use but did not demand enforcement of its trademark rights, UPS has made an employer contribution to the campaigns of Messrs. Hoffa, Brennan, Davis and Majka, in violation of the Rules.  The protesters request that the charged parties be penalized as if they infringed upon UPS’s trademark rights.

In P-974-LU705-NCE, Mr. Barbre alleges that Mr. Hoffa’s use of the UPS logo creates the false impression that “UPS is backing Hoffa.”

Mr. Hoffa responds that candidates routinely use employer names and trademarks in their campaign materials without violating the Rules.  According to Mr. Hoffa, the use of UPS’s trademark in the protested instances does not lead the reader to conclude that Mr. Hoffa has been endorsed by UPS because the literature contains content sharply critical of UPS.  He argues that his use of the logo does not constitute a trademark infringement because the use has not occurred in commerce or in circumstances “likely to cause confusion, or to cause mistake, or to deceive.”  15 U.S.C. §1114.  He also points out that in Hoffa, P-214-IBT-SCE (November 28, 1995), the Election Officer refused to become involved in the resolution of trademark infringement issues.

Mr. Brennan responds that the Election Officer has no authority to monitor the contents of candidates’ campaign literature for any reason.  He cites Department of Labor regulations that prohibit censorship of campaign material by unions and other labor organizations.  He reasons that what the union may not do, the Election Officer may not do either.  Mr. Brennan argues that the protesters now inappropriately attempt to make the Election Officer play the role of censor.  He also contends that the use of UPS’s logo does not reasonably suggest endorsement by UPS.

UPS responds that the employer did not authorize the use of its logo and does not interfere with campaign literature in any way.  UPS states that it maintains a strictly neutral position in the International officer elections.

Regional Coordinator Judith E. Kuhn investigated these protests.

Steven Baudo et al.

September 26, 1996

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The investigation revealed that the UPS logo appeared on the masthead of a campaign brochure entitled, “UPS Campaign News” that was distributed to UPS workers in several different locations nationally.  The logos of both the IBT and UPS appear on the masthead.  The line beneath the masthead reads, “PROUDLY PUBLISHED BY UPS MEMBERS FOR JIM HOFFA.”  The publication is designed to look like a newspaper and contains “articles” critical of Mr. Carey.  The publication presents allegations concerning Mr. Carey’s ownership of UPS stock and the alleged impact the stock had on his negotiation of the UPS contract.  The leaflet also claims that Mr. Carey, in conspiracy with a UPS attorney, improperly influenced an elderly woman to change her will to his benefit.  The text of the leaflet is, at times, sharply critical of UPS.

The UPS logo also appeared in the campaign literature published in the September 1996 issue of The Teamster on behalf of the Brennan, Davis and Majka slate.  On page 43 of the magazine, a page-long piece critical of Mr. Carey and alleging collusion between him and UPS appears under the heading “Ca$h & Carey:  The UPS [logo appears here] contract.”

Ms. Youngerman and Mr. Baudo’s contentions rest on their assertion that UPS’s trademark is a thing of value, the use of which has been contributed by UPS, an employer, to the Hoffa campaign.  Article XII, Sections 1(a) and 1(b)(1) of the Rules prohibit an employer from making any campaign contributions to the campaign of a candidate for delegate or International office.  The Rules define “campaign contributions” to include “any direct or indirect contribution of money or other thing of value where the purpose, object or foreseeable effect of that contribution is to influence the election of a candidate.”  Rules, Definitions, 5.  As stated in the Election Officer’s Advisory on Campaign Contributions and Disclosure, such contributions can include any goods, compensated services or any material things of value.  The Rules also define campaign contributions to include discounts in the price or cost of goods.  Rules, Definitions, 5(c).  The term “employer” is defined under the Rules to include “any individual, corporation, trust, organization or other entity that employs another, paying monetary or other compensation in exchange for that individual’s services.”  Rules, Definitions, 17.

Steven Baudo et al.

September 26, 1996

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A trademark, especially one as well-known as UPS’s, is a commercially valuable asset to a company.  In recognition of the importance of trademark protection,Congress has enacted a large body of law to protect against trademark abuse or infringement.  Thus, individuals are forbidden to use trademarks registered by others for commercial purposes without the consent of the registrant.[1]  Federal law, however, does not forbid an individual to use the trademark of another, so long as the use is for a non-commercial purpose, such as campaigning in a union’s election of International officers, so long as the registered nature of the mark is indicated by the inclusion of a trademark symbol.

The “non-commercial use” exception in federal trademark law means that individuals are free to use corporate symbols for a wide variety of non-commercial purposes.  Non-commercial use of a trademark is, therefore, not an “employer contribution,” as contemplated by the Rules, because the employer cannot control, through legal action or otherwise, the non-commercial use of its mark.  Likewise, use of the logo in campaign material does not constitute an acceptance of an employer contribution because the employer cannot extend or refuse approval for a non-commercial use of its trademark.

The use of UPS’s logo in Hoffa campaign literature was not done “in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.”  Thus, this use of the logo constitutes a non-commercial use, which is not a material thing of value contributed by an employer, forbidden by the Rules.

Mr. Barbre contends that Mr. Hoffa’s use of the UPS logo creates a misleading impression that UPS has endorsed Mr. Hoffa’s campaign.  The Election Officer has repeatedly held, however, that the Rules neither prohibit nor regulate the content of campaign literature.  See, e.g., Points, P-519-LU916-SCE (March 4, 1996); Kulak, P-555-LU155-CAN (March 13, 1996), aff’d, 96 - Elec. App. - 160 (KC) (April 8, 1996); Pockels, P-664-LU302-CSF et seq. (April 16, 1996); Volpe, P-679-LU550-NYC (April 2, 1996).  The Election Officer has stated:

[T]he Election Officer’s duty is to ‘insure fair, honest, open and informed elections.’  This essential goal is achieved by supporting a ‘policy of encouraging free and open debate in internal union affairs’ . . . The model for free and fair Union elections is that of partisan political elections . . . The cardinal principle is that the best remedy for untrue speech is more free speech, with the electorate being the final arbiter.

Newhouse, P-388-LU435-RMT (February 21, 1996) (citing  Landwehr, P-201-LU795-MOI (November 15, 1995) (citations omitted)).

Steven Baudo et al.

September 26, 1996

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In addition, the Election Officer notes that the inclusion of the UPS logo in the protested literature does not lead a reasonable reader to conclude that UPS has endorsed

Mr. Hoffa’s candidacy.  The protested literature is critical of UPS, claiming that they have conspired to erode the rights of UPS workers.

Accordingly, 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

Judith E. Kuhn, Regional Coordinator