September 23, 1998
VIA FIRST CLASS MAIL
Ed J. Mireles, Sec.-Treas.
Teamsters Local Union 952
140 S. Marks Way
Orange, CA 92868
Re: Election Office Case No. PR-266-LU952-EOH
Gentlemen:
A pre-election protest was received anonymously and filed pursuant to the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Ed J. Mireles. Mr. Mireles is secretary-treasurer of Local Union 952 and an independent candidate for Western Region vice-president. The protester alleged that the coverage of Mr. Mireles in two recent issues of the 952 Reporter was excessive and an improper use of a union-financed publication. Mr. Mireles contends that the protest is untimely and does not support his candidacy in such a way as to constitute campaigning under the Rules.
The protest was investigated by Election Office Counsel David S. Paull.
The two protested issues of the 952 Reporter are dated Summer 1998 (“Issue 1”) and August 1998 (“Issue 2”). Issue 1 was mailed to the entire membership of Local Union 952 on August 10, 1998. Issue 2 was mailed on August 4, 1998, but only to those Local Union 952 members who were employed by Lucky Stores, a regional grocery chain which employs union members at several warehouse distribution facilities in Southern California.
Both union-financed newsletters were printed in full color on heavy, glossy paper. Issue 1 is 20 pages in length and contains 41 photographs depicting union members. Mr. Mireles is displayed in 11 of these pictures and Mr. Mireles is frequently quoted. In an article entitled “Secretary-Treasurer’s Message,” Mr. Mireles states that the purpose of Issue 1 is to present, “with great pride and pleasure . . . the stories that document the accomplishments of your union.”
Ed J. Mireles
September 23, 1998
Page 1
Issue 2 also contains an article entitled “Secretary-Treasurer’s Message.” In this article, Mr. Mireles states that the newsletter was prepared to outline “options for the former Fullerton warehouse members . . . and review[s] the history of the Lucky contracts.” Issue 2 is 8 pages in length and contains 7 pictures of union members. Mr. Mireles appears in only one of these photographs. However, Issue 2 contains at least 13 instances of praise for Mr. Mireles which is not connected to any legitimate union business. One example exists on page 1, where a union member is quoted as saying “I appreciate the successful efforts of Secretary-Treasurer Ed. J. Mireles.” A second example appears on page 7, which contains the following “letter” to Mr. Mireles from an apparently injured member:
I’m sitting with my two grandchildren in Chicago, secure in the knowledge that because of you I will receive full pay and benefits for the next 105 weeks. Also, because of you, my medical benefits and pension benefits will also be paid, giving me additional benefits upon retirement. I have had the pleasure of being represented by you and Local 952 for almost three decades. You have always done a superb job. Thank you very much.
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, P-010-
IBT-PNJ et al. (August 17, 1995) (decision on remand), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995). 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.
Ed J. Mireles
September 23, 1998
Page 1
These two union-financed publications well exceed the boundaries of the legitimate duty and obligation of union officers to report to the membership as set forth in Martin. Mr. Mireles, in his capacity as secretary-treasurer of Local Union 952, may list the “accomplishments of your union” and may outline the contract “options” for the Fullerton members. However, although neither issue makes any direct reference to the candidacy of Mr. Mireles or his activities on behalf of the International union, both Issue 1 and Issue 2 are infused with conspicuous material supporting his campaign. The number of photographs in which Mr. Mireles appears in Issue 1 is excessive, as are the number and nature of certain quotations. The several instances of blatant praise for the “achievements” of Mr. Mireles, as contained in Issue 2, are unreasonably “lavish” within the meaning of Martin.
Accordingly, the protest is GRANTED.
When the Election Officer determines that the Rules have been violated, he “may take whatever remedial action is appropriate.” Article XIV, Section 4. In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.
A few weeks prior to the conduct of the 1996 election, Election Officer Quindel concluded that Mr. Mireles violated the Rules at Article VIII, Section 8(a) in exactly the same manner as he has in this protest. Hoffa, P-1053-LU952-CLA et.seq. (October 28, 1996), aff’d, 96 - Elec.App. - 264 (KC) (November 8, 1996). In affirming the Election Officer, the Election Appeals Master stated:
She concludes, as do we, that the column authored by Mr. Mireles and the accompanying articles, do not merely report on matters in which Mr. Mireles was involved, but rather amount to gratuitous and redundant praise for his role in the affairs of the local. A key element in his decision is the in close proximity of the general election. We find as an irrefutable fact that the text and photographs in question do constitute an indirect but nonetheless clear appeal for the election of Mr. Mireles.
If Mr. Mireles is to continue discharging the function of a local union officer, reporting on the activities of Local Union 952 or informing members of their contractual rights, he must do so without aggrandizing himself in a manner which violates the Rules.
Consistent with the remedy ordered in the prior case, the Election Officer orders that by October 2, 1998, all other candidates for Western Region vice president may, at their option, submit to Local Union 952 one piece of campaign literature each. This literature shall relate solely to each individual candidate and not to any slate or other candidate. Further, the literature submitted shall be prepared on one side of 81/2 X 11 inch paper.
Ed J. Mireles
September 23, 1998
Page 1
By October 7, 1998, Mr. Mireles will copy all campaign literature submitted and mail one copy of each candidate’s literature to every member of Local Union 952. In 1996, the Election Officer permitted Mr. Mireles to comply with this remedy at the expense of Local Union 952. This time, however, he must bear the entire expense himself, using equipment not owned or leased by Local Union 952 or any other local union. All of Mr. Mireles efforts to comply with order shall be conducted on other than union-paid time and shall be completed without incurring any costs to Local Union 952. Within one (1) day of the mailing of this material, Mr. Mireles will submit an affidavit to the Election Officer detailing his compliance with each and every aspect of this order.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In re Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).
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, 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
Enclosure
cc: Kenneth Conboy, Election Appeals Master
All Western Region Vice-Presidential Candidates