December 8, 1997
VIA UPS OVERNIGHT
James P. Hoffa
December 8, 1997
Page 1
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Tom Sever, General President
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Nancy Coleman
Communications Department
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Steve Trustman
Communications Department
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Matt Witt
Communications Department
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Richard Brook, Esq.
Cohen, Weiss and Simon
330 West 42nd Street
New York, NY 10036
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
David L. Neigus
Deputy General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
James P. Hoffa
December 8, 1997
Page 1
Re: Election Office Case No. PR-029-IBT-NCE
Gentlepersons:
James P. Hoffa
December 8, 1997
Page 1
A pre-election protest was filed against the IBT pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by James P. Hoffa, a candidate for general president. Mr. Hoffa alleges that the IBT improperly used union funds to promote the candidacy of Ron Carey for the office of general president by issuing a press release entitled “Taxpayers Foot Bill for Hoekstra Media Show.” The IBT admits to the production and distribution of the press release, but maintains that it did not violate the Rules in doing so.
The protest was investigated by Regional Coordinator Judith E. Kuhn.
On November 5, 1997, the IBT Communications Department issued a press release citing a decision by the Subcommittee on Oversight and Investigations of the Committee on Education and the Workforce (“Subcommittee”) to hire as consultants former U.S. Attorney Joseph DiGenova and former Assistant United States Attorney Victoria Toensing. The press release characterizes the hiring as the “latest effort” of Subcommittee chairman Representative Peter Hoekstra “to orchestrate a media show at taxpayer expense.” Mr. Carey is quoted in the press release as follows:
There is no legitimate reason for Congressman Hoekstra and his committee to duplicate the efforts of the Justice Department, the FBI, and the federal courts . . . . They are wasting taxpayers’ money. This is a media show by a politician with a history of representing the interests of corporations against working families.
The press release also states that Mr. Carey has “ordered Teamsters employees to fully cooperate with federal authorities” and notes that three consultants to the Carey campaign have previously “pleaded guilty to wrongdoing in last year’s Teamsters election.” Representative Hoekstra is described in the release as having “attacked the hard-won rights of working people” by sponsoring legislation seeking to weaken overtime pay laws, permit management personnel to choose employee representatives, reduce safety enforcement under OSHA, decrease worker benefits and prohibit actions “by unions to expose corporate wrongdoing in the United States.” The press release further states that Republican members of the Subcommittee have received more than $250,000 during the 1996 election cycle from “corporate special interests.”
The protester specifically contends that the press release violated the Rules at Article VIII, Section 11(c) and Article XII, Section 1(b)(3). Article VIII, Section 11(c) provides, 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.
James P. Hoffa
December 8, 1997
Page 1
Article XII, Section 1(b)(3) specifically extends the prohibition to “other things of value,” including anything which can be “used, directly or indirectly, to promote the candidacy of any individual.”
The protester’s contention that the press release is a violation of these Rules is not sustainable. Union-financed publications are properly and exclusively tested under the tone, content, timing and context test suggested by Article VIII, Section 8(a). Martin, P-010-IBT-PNJ (decision on remand) (August 17, 1995), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995). In Barnes, P-836-IBT-MGN (July 17, 1996), the Election Officer held that the distinction between potential Article VIII-type union-financed campaigning and the campaign contribution analysis available under Article XII, Section 1(b) must be maintained. Campaigning requires some advocacy for or against a candidate. Giacumbo, P-001-IBT-PNJ, (September 29, 1995), aff’d in rel. part, 95 - Elec. App. - 32 (KC) (November 1, 1995). A campaign contribution, however, requires only a “foreseeable effect” to influence, positively or negatively, the election of a candidate. Caffrey, P-047-JC16-NYC (October 19, 1995). Barnes cited Gilmartin, P-032-LU245-PNJ (January 5, 1996), aff’d, 95 - Elec. App. - 75 (KC) (February 6, 1996) to explain why this distinction exists:
The use of the wrong test could result in an undesirable restriction on free speech activity within the union . . . Using a campaign contribution analysis for union publications would not just prevent campaigning by the union and its subordinate bodies, but would also restrict debate on union policies and activities - just the opposite of what was intended by the LMRDA and the Consent Decree.
Union resources may properly be used to prepare and distribute communications on any subject which affect “the IBT’s institutional interests and is therefore newsworthy and of interest to its members.” Atha, PR-001-IBT-EOH (October 10, 1997) (TITAN message did not violate the Rules although, in addition to reporting on the decision to rerun the election, it stated that “there was no evidence” Mr. Carey “knew of or participated” in improper fundraising); Clemerson, PR-008-LU783-EOH (October 22, 1997) (local union publication reporting on the decision to rerun the election did not violate the Rules although it criticized Ron Carey for actions referred to in the decision). In Local Union 745, P-247-IBT-SCE (January 22, 1996), aff’d, 96 - Elec.App. - 74 (KC) (February 6, 1996), a press release reporting that Mr. Carey had ordered the return of $400,000 in union funds set aside by two local unions and a joint council to defend against possible future trusteeship action did not violate the Rules, although the announcement equated the imposition of trusteeships with the fight against corruption. The Election Appeals Master affirmed, stating that “the fact that a collateral political benefit may have accrued to Mr. Carey’s campaign from his legitimate conduct does not establish that Mr. Carey acted improperly.”
James P. Hoffa
December 8, 1997
Page 1
In Hoffa, PR-013-IBT-EOH (November 5, 1997) (appeal pending), the Election Officer determined that the IBT did not violate the Rules when it sponsored a press conference to discuss the activities of Representative Hoekstra’s Subcommittee, which had criticized certain conduct of the IBT. “When faced with the prospect of a Congressional investigation which questions the internal procedures of the IBT,” stated the Election Officer, “it is appropriate for the IBT to attempt to defend its image and its operations under the Consent Decree.”
The press release is generally critical of Representative Hoekstra and the other Republican members of the Subcommittee. It challenges the necessity for the Subcommittee and its credentials, however, in the context of the IBT’s operations and institutional interests. The IBT is a party to the Consent Decree. The press release contains no language which supports or attacks Mr. Carey or any other candidate and does not mention any investigation by the Subcommittee of the Carey Campaign.
Accordingly, the protest is DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) 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, 444 North Capitol Street, Suite 445, Washington, DC 20001, facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael Cherkasky
Election Officer
MC:chh
cc: Kenneth Conboy, Election Appeals Master
Judith E. Kuhn, Regional Coordinator