Protest Decisions

              December 2, 1996

VIA UPS OVERNIGHT & HAND DELIVERY

Jack Mandaro

December 2, 1996

Page 1

Jack Mandaro, Secretary-Treasurer

Teamsters Local Union 95

204 Packets Court

Williamsburg, VA  23185

William Webster

Independent Review Board

444 N. Capitol Street, N.W., Suite 528

Washington, DC  20001

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

Ron Carey Campaign

c/o Nathaniel K. Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY  10036

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

Karen Konigsberg, Asst. U.S. Attorney

United States Department of Justice

100 Church Street, Room 1911

New York, NY  10007

Jack Mandaro

December 2, 1996

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Re:  Election Office Case No. P-1278-IRB-EOH

Gentlepersons:

Jack Mandaro

December 2, 1996

Page 1

Jack Mandaro, secretary-treasurer of Local Union 95, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) alleging three separate violations of the Rules.  The first arises from a CNN television program that aired on Sunday, November 10, 1996 and relates to alleged bias in the program and alleged bias on the part of one of the persons interviewed:  Independent Review Board (“IRB”) member William H. Webster.  The second alleged violation relates to General President Ron Carey’s alleged manipulation of IBT publications to advance his campaign for reelection.  The third allegation relates to a campaign mailing from the Carey campaign bearing the return address of the IBT headquarters in Washington, D.C. and using a bulk-mail permit registered in St. Louis, Missouri.

This protest was investigated by Election Officer Protest Chief Benetta Mansfield.

1.              Allegations Concerning the CNN Program and William Webster

On November 10, at 9:00 p.m. Eastern Time, CNN aired a one-hour program entitled, “CNN Presents.”  Approximately the first 40 minutes of the program were devoted to a report entitled, “Divided Unions,” in which CNN correspondent Mark Feldstein reported on certain aspects of the 1996 IBT International election.  The Election Officer addressed objections to this program in Hoffa, P-1216-JHC-EOH et seq. (November 19, 1996), aff’d, 96 - Elec.

App. - 287 (GSB) (November 27, 1996).  As noted in that decision, the show was divided into three segments, each introduced by CNN anchor Bernard Shaw.  The first segment gave some background into evidence and allegations of past and present corruption within the union. 

The second segment focused on allegations concerning general president candidate

James P. Hoffa’s alleged ties to corruption and/or organized crime.  The third segment focused on allegations of corruption and/or organized crime ties concerning Mr. Carey, and

on the IRB’s investigation into those allegations.[1]

Mr. Mandaro’s principal objections center on statements made by Judge Webster,[2]

who was interviewed during the program.  First, he alleges that Judge Webster’s statements showed bias in favor of Mr. Carey and against Mr. Hoffa.  Specifically, he contends that

“Mr. Webster campaigned, on behalf of Ron Carey, when he claimed that the IRB investigated allegations, against Ron Carey, and he pronounced Ron Carey ‘innocent’ of any and all allegations” while not speaking to allegations in the program against Mr. Hoffa, “yet the IRB has never brought charges against Mr. Hoffa.”  Thus, Mr. Mandaro alleges that Judge Webster’s position “certainly appears to [be] an endorsement of one candidate, over another.”

The Election Officer reviewed Judge Webster’s interview in Hoffa and found that he did not engate in supporting or opposing any International officer candidate.  The Election Appeals Master Designee agreed with the Election Officer in this regard, stating, “As the Election Officer correctly found, Judge Webster’s statements did not express views for or against any candidate.”  In Re: Hoffa, supra.

Jack Mandaro

December 2, 1996

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With respect to Mr. Mandaro’s allegation that Judge Webster showed bias by not responding to and refuting allegations broadcast in the CNN program against Mr. Hoffa, the Election Officer finds that Judge Webster did not control the content of the program.  As the Election Officer stated in Hoffa:

Here, a national news television network produced and aired a program about the IBT and the two candidates for general president.  The program examined facts and allegations about the two candidates and charges of corruption made by each.  The show interviewed a variety of people giving their views, including both candidates, and portrayed facts as found by the reporter.  In no way did CNN go beyond its media function of airing reports or opinions about the news.  While a reasonable person may well conclude the program had a point-of-view about the charges and countercharges of corruption, CNN has a right to express its opinions, as well as factual conclusions, about the issues of corruption under discussion.

With respect to such editorial decisions by CNN, the Election Officer found them to be outside the scope of regulation under the Rules.  The decision stated:

The Election Officer has recognized a broad exception for “publications intended for and disseminated to the general public,” as to which “[t]he First Amendment of the U.S. Constitution requires . . . the greatest latitude in exercising the right to communicate.”  Hoffa, P-743-IBT-SCE (May 23, 1996).  Thus, under a “media exception” to the regulation of campaign contributions, the Election Officer does not exercise jurisdiction over “newspaper or magazine articles published by entities which are not owned or whose editorial policies are not controlled by candidates or committees acting on behalf of candidates.”  Pressler, P-365-LU705-CHI (February 22, 1996); Brennan,

P-971-IBT (October 16, 1991); Scott, P-969-IBT (October 18, 1991).  The media exception also applies to cable and broadcast media.  See, e.g., Pressler (applying media exception to radio broadcast).

Mr. Mandaro’s second objection relates to Mr. Mandaro’s disagreement with the selection of Judge Webster to be an IRB member by Judge David N. Edelstein, pursuant to the Consent Decree.  He states, “Judge Edelstein felt that Mr. Webster’s integrity was above reproach.  I question that decision . . .”  Mr. Mandaro then alleges that Judge Webster is compensated by the IBT and is, therefore, an IBT employee, that he is also compensated as a director of Anheuser-Busch, Inc., a large employer of IBT members, and that he cannot “simply ‘turn his hat around’, sit on the IRB and fairly adjudicate matters that directly affect the interests of the employer.”

Jack Mandaro

December 2, 1996

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The appointment of IRB members by Judge Edelstein is outside the scope of the Election Officer’s jurisdiction over the International officer election.[3]  That jurisdiction does extend, however, “to remedy any conduct by the government or other court-appointed officers which presents a clear obstacle to a free and fair election.”  Hoffa, supra.  As noted above, however, the Election Officer finds that Judge Webster’s statements during the CNN program in question did not constitute campaigning or partisan activity.

Mr. Mandaro’s protest next alleges various improprieties with respect to labor relations between the IBT and Anheuser-Busch, apparently related to Judge Webster’s dual roles on the IRB and the Anheuser-Busch board.  Such allegations are far outside the scope of the Election Officer’s jurisdiction over the International officer election.

Lastly, Mr. Mandaro raises several allegations relating to material that he believes should have been covered in the CNN program and to the timing of the program as “clearly designed to influence Members’ votes.”  As noted above, the Election Officer does not regulate the content of programs, such as the CNN program in question, that are covered by the “media exception” to the employer contribution provisions of the Rules.  “The fact that coverage was friendly in tone [to one candidate] was an editorial decision outside the scope of the regulation under the Rules.”  Hoffa, supra; Rockstroh, P-1003-JHC-EOH (November 5, 1996).  Likewise, the Election Officer exercises no regulation over the timing of independent media broadcasts.  As she stated with respect to the CNN program in Hoffa, “[g]iven the desire to be commercially successful, it is hardly surprising that a program would be timed to coincide with the greatest amount of interest in the subject matter.”

2.              Allegations Concerning the Alleged Manipulation of IBT Publications by Mr. Carey

Mr. Mandaro’s second set of objections relate to his disagreement with the manner in which Mr. Carey performed his role as chair of the IBT Convention in mid-July and his subsequent “spin doctoring” of Convention coverage in IBT publications.  For example,

Mr. Mandaro states that the September issue of The Teamster had the banner “Debating Pension & Health Protection,” with pictures of members at the Convention, including

Mr. Mandaro, ostensibly engaging in debate.  However, Mr. Mandaro states that “[a]nyone who was in attendance knows full well that no debate was held.”  He also alleges that

“Ron Carey is also utilizing the ‘Teamster Leader’ publication to advance his campaign.”

Article XIV, Section 2(b) of the Rules requires protesters to file “within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested.”  The short time limits are important to ensure that alleged violations of the Rules are quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy if a violation is found.

Jack Mandaro

December 2, 1996

Page 1

Mr. Mandaro filed his protest on November 19, 1996.  Allegations arising from the IBT Convention in July or the IBT’s publication of the September issue of The Teamster are untimely.

With respect to Mr. Mandaro’s general allegation about campaign content in issues of The Teamster Leader, the Election Officer cannot address such a general allegation.  However, she notes that issues of The Teamster Leader following the IBT Convention have not been found to violate the Rules.  See, e.g., Hoffa, P-871-IBT-EOH (September 13, 1996).

3.              Allegations Concerning the Carey Campaign Mailing

Mr. Mandaro also objects to several aspects of a Carey campaign flyer entitled, “Is Your Pension Safe?”  These aspects are that:  (1) the mailing bore the return address of the IBT in Washington, D.C.; (2) the bulk-mailing imprint stated, “Non-Profit Org. . . .  Permit #1854 St. Louis, MO,” although the registered holder of the permit is a for-profit company; (3) the disclaimer of IBT endorsement on the front of the envelope is smaller than the return address; and (4) the Carey campaign mailed the flyer “in a selected manner” since he did not receive it.

The first three of those allegations were addressed in another protest about the mailing.  See Atha, P-1241-RCS-CLE et seq. (November 25, 1996).  As explained in that decision, the “Is Your Pension Safe?” flyer was mailed by the Klasek Letter Company in St. Louis under the IBT’s procedures for implementing Article VIII, Section 7(a)(1) of the Rules.  That section requires the IBT to afford an equal opportunity to all candidates to have his or her campaign material distributed by the union at the candidate’s expense.  If a mailhouse is used, such mailings carry the mailhouse’s bulk-mail permit number.  The U.S. Postal Service considers such mailings to be IBT mailings under the IBT’s non-profit, bulk-mail rate and, thus, are required to bear the IBT’s return address.

The Atha decision also addressed the disclaimer of IBT endorsement on the envelope, required by Article VIII, Section 7(a)(3) of the Rules, and found that the disclaimer, although small, was “clearly stated on the campaign material” and adequate under the Rules.

With respect to Mr. Mandaro’s objection that the flyer appears to have been distributed selectively, the Rules recognize and allow that candidates and campaigns may distribute literature to some members and not others, as they choose.  As the Election Officer stated in Baudo, P-680-LU344-SCE (April 3, 1996), aff’d, 96 - Elec. App. - 165 (KC) (April 12, 1996), concerning a selective mailing in a local union delegate election:

If a member or candidate does not wish to associate with another member or candidate with respect to the delegate election, various sections of the Rules protect that wish.  See, e.g.,

Jack Mandaro

December 2, 1996

Page 1

Article IX, Section 1 (slate formation); Article XIII (incorporating Section 101(a)(2) of the Labor-Management Reporting & Disclosure Act on freedom of expression and assembly).  With respect to campaign mailings, Article VIII, Section 7(a)(2) of the Rules recognizes that right and requires local unions to accommodate it if not impracticable:  “The Union shall honor requests for distribution of literature to only a portion . . . of the membership, as determined by the candidate, unless the Union can show such distribution is impracticable.”

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