IN RE: FRANK W. HALSTEAD,
Protest Decision 2000 EAD 6
Issued: August 1, 2000
OEA Case No. PR062301WE
Frank Halstead, a member of IBT Local Union 572, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") alleging that the June 14, 2000 issue of the Southern California Teamster improperly supported the candidacy of James P. Hoffa for IBT General President in violation of the Rules. Mr. Halstead's protest is based upon a photograph appearing on page one of the edition, depicting striking employees of Waste Management holding up eight tee shirts displaying the words, "HOFFA SUPPORTS LIVING WAGES". Mr. Halstead lodged his protest against Jim Santangelo, President of Joint Council 42, and the Hoffa Campaign. The Southern California Teamster is published and financed by Joint Council 42 on a monthly basis. Local 495 is affiliated with Joint Council 42.
Joint Council 42 responds that the protest should be denied because the tone, content, and timing of the picture do not relate to the election. They point out that: (1) the subject photograph is only one of thirty-one photographs within the twelve-page newspaper; (2) the photograph measures approximately two by four inches, with the tee shirt legend appearing in approximately one-sixteenth-inch print; (3) the individuals holding the tee shirts are rank-and-file members; (4) the related text and captions make no reference to the election; and (5) the timing of the edition is one year from the International convention and seventeen months from the International election.
The IBT also urges dismissal, arguing that: (1) the IBT and Mr. Hoffa were not involved in either the photograph or the labor dispute with which it was concerned; and (2) the tone and content of the photograph, in the context of the related article depicted Mr. Hoffa in his official role as IBT President and not as a candidate
Election Administrator representative Chris Mrak investigated the protest.
The investigation revealed that approximately 300 members of Local 495 commenced a strike on April 14, 2000 for a collective bargaining agreement with Waste Management. Within two weeks prior to the strike, Local 495 secretary-treasurer Bob Lennox purchased with Local 495 funds tee shirts displaying the sentence, "HOFFA SUPPORTS LIVING WAGES". When the strike commenced on April 14 Lennox had received only a few tee shirts, which he distributed to strikers, some of whom wore them on the picket line. Other strikers who did not receive tee shirts asked for them. Negotiations with Waste Management succeeded in resolving the strike on the same day it began.
The following Tuesday, April 18, 2000 a Local 495 business agent did a follow-up visit to the Waste Management worksite and brought with him additional tee shirts that had arrived since April 14. He handed them out and took the picture that subsequently appeared in the Southern California Teamster accompanying the article concerning the strike. This protest followed.
The question presented here is whether the tone, timing and content of the June 14, 2000 issue of Southern California Teamster containing the challenged picture improperly supported the candidacy of General President Hoffa. Article VII, Section 8(a) of the Rules states that "No publication or communication financed, directly or indirectly, by a Union may be used to support or attack any candidate or the candidacy of any person . . . " See Sullivan, P53 (July 10, 1995); Ruscigno, P67 (July 19, 1995). "To establish that a challenged article does not impermissibly promote a candidate, the publisher of the article must demonstrate that the article's tone, timing and content, considered together, reflect that it is a valid news article." Kilmury, 96 EAM 109.
Joint Council 42 cites the Election Officer's 1996 decision in Schweitzer, P892 (September 6, 1996), where a protest was dismissed because the Election Officer determined that the "tone, content and timing" of the challenged publication could not be interpreted by a "reasonable reader" as constituting support for candidate Hoffa.
The facts here distinguish this case from Schweitzer. Here, the inclusion of the "Hoffa" tee shirts was not incidental, and could not have been overlooked by the photographer or newspaper editor. The local union business agent assembled the Local's members for the photograph, and distributed the tee shirts to them shortly before the photograph was taken. Moreover, the "HOFFA SUPPORTS LIVING WAGES" message conveyed by the tee shirts is plainly visible in the photograph, and is in fact its most notable feature. It may thus be fairly inferred that the business agent who orchestrated the photograph session intended to promote the Hoffa name through the creation and subsequent publication of the photograph.
The photograph was taken in April 2000, at a time when General President Hoffa was already a candidate for reelection, as indicated by the information he submitted in his initial Campaign Contribution and Expenditure Report. Moreover, the joint council newspaper that contained the challenged photograph was published in June 2000, after the promulgation of the Rules. While it is true that the International Officer election will not occur until late in 2001, it is not disputed that the challenged publication was distributed during a period in which at least some campaigns for local union delegates had commenced in seasonal/agricultural locals, including some that are affiliated with Joint Council 42. Moreover, campaign activity by the candidates for General President had begun before June 2000. The challenged photograph thus gave favorable publicity to a candidate - General President Hoffa - at a time when it could have an impact on the election process.
It is true that "incumbent [union officers] will in the nature of things be … important participant[s] in many matters of interest to the membership and be more likely to have [their] participation in these matters [be] the subject of inclusion in any report to the membership through the [union] newspaper." Donovan v. Metropolitan Dist. Council of Carpenters, 797 F.2d 140, 145 (3d Cir. 1986). And it is also true that coverage of such participation by an incumbent who is campaigning for reelection is not prohibited, "[s]o long as such coverage is addressed to the regular functions, policies and activities of such incumbents as officers involved in matters of interest to the membership, and not as candidates for reelection…" Id.
Here, however, it is not disputed that General President Hoffa was uninvolved in the Local 495 labor dispute. The challenged picture thus does not constitute reporting on the activities of incumbent General President Hoffa with respect to his "regular functions, policies and activities," and is not protected by the principles explained in Donovan. Moreover, contrary to the argument of the IBT in the case, the mere fact that General President Hoffa is an incumbent does not sanction publicity about him in union newspapers published during the period of his candidacy, absent any linkage to activity on his part with respect to his union functions.
Joint Council 42 argues that the publication of the challenged photograph is legitimate because the tee shirts worn by the members in the picture are identical to those worn by IBT members during the WTO demonstrations in November 1999. There, however, unlike here, General President Hoffa was deeply involved in the WTO issue. Moreover, the WTO demonstrations were remote in time from the 2000-2001 delegate and International Officer elections.
The question presented here is whether the tone, timing and content of the challenged picture in the June 14, 2000 issue of Southern California Teamster improperly supported the candidacy of General President Hoffa. Given the lack of any involvement by Mr. Hoffa in the labor dispute which is the subject of the photograph, the pre-planned, non-spontaneous character of the picture and its publication, and the relation in time to seasonal delegate elections within Joint Council 42's jurisdiction, I find that the publication of the photograph in the newspaper violates Article VIII, Section 8(a) and Article XI, Section 1(b)(6) of the Rules. Therefore, the protest is GRANTED.
When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. Based on the occurrence of this violation early in the 2000-2001 election process, and the absence of any explicit reference to General President Hoffa' candidacy in the challenged picture, the Election Administrator finds that the remedy here should have prospective effect only. See Lopez, P242 (December 15, 1995), aff'd 96 EAM 51. To remedy this violation, the Election Administrator accordingly orders that Joint Council 42 immediately cease and desist from publishing materials in its publications which improperly promote the candidacy of General President James P. Hoffa for reelection.
An order of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212.751.4864
Copies of the request for hearing must be served upon the parties listed above, as well as upon the Election Administrator for the International Brotherhood of Teamsters, c/o International Brotherhood of Teamsters, 25 Louisiana Ave. NW, Washington, D.C. 20001, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
Chris Mrak
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Frank W. Halstead
260 LaFollette Drive
Los Angeles, CA 90042
Jim Santangelo
IBT Joint Council 42
9300 Flair Drive, Suite 300
El Monte, CA 91731
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman
32300 Northwestern Hwy.
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Thomas Leedham
18763 South Highway 211
Molalla, OR 97038
Hoffa 2001 Campaign
P.O. Box 2829
Alexandria, VA 22301
Kenneth P. Young
Wohlner, Kaplon, Phillips,
Young & Barsh
15760 Ventura Blvd,
Encino, CA 91436