December 15, 1997
VIA UPS OVERNIGHT
James P. Hoffa
December 15, 1997
Page 1
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
Patrick J. Szymanski, Esq.
Baptiste and Wilder
1150 Connecticut Ave., NW
Suite 500
Washington, DC 20036
Richard Brook, Esq.
Cohen, Weiss and Simon
330 West 42nd Street
New York, NY 10036
Tom Sever, General Secretary-Treasurer
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Earl Brown, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Kenneth M. Vittor
Senior Vice President, General Counsel
Business Week
McGraw-Hill Building
1221 Avenue of the Americas, 39th Floor
New York, NY 10020
John Bell
c/o Gene Moriarty
P.O. Box 77067
Washington, DC 20013
James P. Hoffa
December 15, 1997
Page 1
Re: Election Office Case No. PR-027-IBT-NCE
Gentlemen:
James P. Hoffa, a candidate for general president, 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”) against the IBT, General President Ron Carey, General Counsel Earl Brown, Carey Campaign spokesperson John Bell, private investigator Scott Armstrong and Aaron Bernstein, a reporter for Business Week magazine.
James P. Hoffa
December 15, 1997
Page 1
Mr. Hoffa alleges that the IBT hired Mr. Armstrong to investigate him and his supporters in violation of the Rules at Article VIII, Section 11(c) and Article XII, Section 1(b)(3). Mr. Hoffa further asserts that Mr. Bell has referred reporters to Mr. Armstrong to communicate “negative information” concerning Mr. Hoffa’s campaign and that Mr. Bernstein used information from Mr. Armstrong in a story appearing in Business Week on November 10, 1997. The IBT admits that Mr. Armstrong was hired to perform independent contractor services as a private investigator but denies that this arrangement violates the Rules.
The protest was investigated by Regional Coordinator Judith E. Kuhn.
The protester relies on a statement by Richard Leebove, a spokesperson for the Hoffa Campaign. Mr. Leebove states that he was telephoned by Mr. Bernstein on October 28, 1997 and asked about alleged connections between the Hoffa Campaign and John A. Matassa Jr., an officer of a non-IBT local union located in Chicago, Illinois and other possible links with an insurance company based in Waco, Texas, American Income Life. According to Mr. Leebove, Mr. Bernstein stated that Mr. Bell and Mr. Armstrong were the sources of his information regarding the Hoffa Campaign and American Income Life.
Mr. Bernstein refuses to affirm or deny Mr. Leebove’s statements. The Business Week story reports that “sources close to a Justice Department investigation has been told” that Mr. Matassa has “alleged mob ties” and that he “may have raised money for Hoffa, too.” The article further makes reference to prospective testimony establishing that American Income Life brokers in several cities contributed to Mr. Hoffa’s campaign in exchange for union endorsement of their products and access to union members. Larry Brennan, president of Local Union 337, is also referred to in the article as an alleged participant in the activities involving American Income Life.
Mr. Bell knows Mr. Armstrong and their acquaintance predates Mr. Armstrong’s current assignment with the IBT. Both Mr. Bell and Mr. Armstrong declare that they have never discussed Mr. Matassa or American Income Life with Mr. Bernstein. While Mr. Armstrong is not certain that he has never met Mr. Bernstein, he positively asserts that he has not met or talked with Mr. Bernstein within the last 12 months. Mr. Bell recalls providing some background information to Mr. Bernstein which do not relate to the allegations surrounding Mr. Matassa or American Income Life.
James P. Hoffa
December 15, 1997
Page 1
The IBT states that it has hired private investigators to obtain information in situations such as trusteeships, disciplinary matters and audits. As evidence, it presented a decision in Brennan v. IBT, C.A. No. 95-1375 (WBB), (D.D.C. July 29, 1997), which cites the retention of other private investigation firms by the IBT. Mr. Armstrong has been hired intermittently as an investigator on other assignments over the past four years. Mr. Armstrong states that he was hired by the IBT, on this occasion, to investigate allegations of wrongdoing, but was not retained to inquire into allegations involving either Mr. Matassa or American Income Life. According to the IBT, Mr. Armstrong was hired to investigate (1) the improper diversion of IBT funds as described in Cheatem, Post-27-EOH (August 21, 1997), aff’d in rel. part, 97 - Elec. App. - 322 (KC) (October 10, 1997) and (2) the misuse of pension monies for which Local Union 710 has fiduciary responsibility. The protester did not submit any evidence showing that Mr. Bell referred reporters to Mr. Armstrong in order to circulate negative information concerning Mr. Hoffa or his candidacy.
In September 1997, an attorney representing Mr. Brennan wrote a letter accusing the IBT of hiring Mr. Armstrong to “harass” him because of his support for Mr. Hoffa. In connection with this claim, the attorney demanded all records relating to the retention of Mr. Armstrong. The IBT refused to provide this material. Mr. Leebove states that he has a copy of this correspondence.
The Rules at Article VIII, Section 11(c) provide, in pertinent part, as follows:
Union funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in campaigning unless the Union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance.
Article XII, Section 1(b)(3) specifically extends this restriction to “other things of value,” including anything which can be “used, directly or indirectly, to promote the candidacy of any individual.”
The Election Officer concludes that the hiring of a private investigator by the IBT for the reasons stated is a legitimate exercise of internal union authority. Independent Administrator Frederick B. Lacey, in his Summary Report to the United States District Court for the Southern District of New York dated February 29, 1992, recommended that the IBT utilize the services of such investigators in proper cases:
Thus I recommend to the IBT that its leadership vigorously exercise the disciplinary power granted it by the IBT Constitution. In this connection, the IBT may be well served to retain its own private investigators to look into allegations of wrongdoing. When such allegations, once investigated, prove to have some merit, the IBT must respond quickly to bring the matter to light and to punish the wrongdoers.
James P. Hoffa
December 15, 1997
Page 1
The IBT has hired private investigators, including Mr. Armstrong, on previous occasions. The propriety and regularity of such action is further supported by the heightened scrutiny given to the financial affairs of the IBT and its affiliates under the Consent Decree and the oversight authority given to the government and the Court-created Independent Review Board. See Local Union 745, P-247-IBT-SCE (January 22, 1996), aff’d, 96 - Elec.App. - 74 (KC) (February 6, 1996) and Cheatem, supra.
As a legitimate internal union activity, the hiring of Mr. Armstrong does not violate the Rules unless there is sufficient proof that the exercise of such action was based upon “irrelevant or invidious conditions and implemented to affect the election process.” Hammond, P-250-IBT-SCE (January 2, 1996). See also Robbins, P-013-IBT-SCE (June 30, 1995), aff’d, 95 - Elec. App. - 3 (KC) (July 26, 1995); Giacumbo, P-177-IBT-PNJ (November 2, 1995), aff’d, 95 - Elec. App. - 38 (KC) (November 28, 1995).
In this case, the only evidence of such improper considerations is the inference drawn by Mr. Leebove from a conversation he contends took place with Mr. Bernstein and through his examination of correspondence between Mr. Brennan’s attorney and the IBT. Mr. Bernstein refuses to admit or deny that any conversation took place. Mr. Armstrong and Mr. Bell deny the allegations by Mr. Leebove that they communicated any information to Mr. Bernstein as alleged by Mr. Leebove. The evidence is insufficient to sustain the conclusion that either Mr. Armstrong or Mr. Bell provided any information relating to Mr. Matassa or American Income Life to Mr. Bernstein or that Mr. Bell referred reporters to Mr. Armstrong to attack the Hoffa Campaign.
Moreover, as to Mr. Bernstein, researching and writing the article for Business Week is fully protected under the “media exception” to Rules, which applies to any publication intended for and disseminated to the general public. This exception applies to such publications unless evidence is submitted establishing that candidates or committees acting on behalf of candidates control the editorial policies of the responsible entities. Brennan, P-971-IBT (October 16, 1991); Sauwoir, P-041-LU41-EOH, et seq. (August 16, 1995); Hasegawa, P-161-LU41-MOI (October 24, 1995); Pressler, P-365-LU705-CHI (February 22, 1996); Hoffa, P-743-IBT-SCE (May 23, 1996). No evidence was submitted or discovered establishing that any candidate or agent of any candidate controls the editorial policies of Business Week magazine or that of its publisher, the McGraw Hill Companies.
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 (1) 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:
James P. Hoffa
December 15, 1997
Page 1
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, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
MGC:chh
cc: Kenneth Conboy, Election Appeals Master
Judith E. Kuhn, Regional Coordinator