IN RE: HOFFA UNITY SLATE,
Protest Decision 2001 EAD 78
Issued: January 8, 2001
OEA Case No. PR120401NA
The Hoffa Unity Slate (the "Hoffa slate"), through its attorney J. Douglas Korney, 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") against Tom Leedham, Labor Notes, Teamsters for a Democratic Union ("TDU") and the Teamsters Rank and File Education and Legal Defense Foundation ("TRF"). The Hoffa slate protest includes a full-page article published in the December 2000 issue of Labor Notes that, it asserts, was "mailed to Local Unions throughout the IBT [and] attacks the candidacy of James P. Hoffa and which promotes the so-called "Rank and File Power Slate". The slate alleges that "Labor Notes owns a portion of, and shares offices with, TDU and TRF and further alleges "on information and belief", that TDU and TRF "control and/or have substantial input into the content of Labor Notes' publication. Further, the slate alleges that "in reprinting statements and/or materials generated by the Leedham campaign and/or TDU, [Labor Notes] has made an improper contribution to the Leedham campaign and has otherwise violated the Rules." The Hoffa slate further alleges that Labor Notes has "violated the Rules by expending resources on behalf of candidate Leedham which were not raised in accordance with the Rules, and which were not reported as required by the Rules.
Election Administrator representatives Michael Nicholson and Bruce Dubinsky investigated the protest.
Findings of Fact
Labor Notes is a monthly publication that has been published since approximately 1979. It reports on the labor movement, labor disputes, legislation, and various labor union related matters. It has regularly reported on the IBT for many years, including coverage of the Consent Decree, the supervised elections under the Consent Decree, the affairs of the Carey and Hoffa administrations, and campaigns for IBT office.
Labor Notes is published by the tax-exempt Labor Education and Research Project ("LERP"), which is a foundation as that term is used in Article XI, Section 1(a) and other provisions of the Rules. It shares and is part owner of the Detroit building that houses TDU. None of the members of the board of directors of LERP are members of the IBT or TDU, other than Simone Sagovac, an employee of TDU and a member of LERP's board. Labor Notes carries a list of individual and institutional "endorsers" on the second page of its publication. Among the endorsers are members of the IBT and staff members of TDU. Neither TDU nor TRF are listed as endorsers. The endorsers are simply individuals and organizations who support Labor Notes and who have agreed to permit their names to be listed as endorsers. LERP's board and its endorsers do not participate in the administration of Labor Notes or of LERP nor do they participate in the formulation of Labor Notes' editorial policy.
The staff of Labor Notes consists of Director Kim Moody, Editor Jim West, Staff Writer Leah Samuel, office manager and bookkeeper Brenda Smith, promotions, circulation and webmaster manager Jennifer Van Proeyen, and TIE-North America and Cross-Border/International coordinator Teófilo Reyes. Martha Gruelle, a member of the Labor Notes staff since 1993 and the author of the challenged article in the December 2000 issue of Labor Notes, recently left the Labor Notes staff.[1]
Editor Jim West and the members of the Labor Notes staff formulate the editorial policy of Labor Notes. West prepares an initial proposed outline of each issue. The staff then meets and reviews the outline, suggesting changes, additions and deletions. The staff and West make final decisions about editorial content in collaboration. LERP's board of directors and its endorsers do not participate in this process. Nor do others, including the staff of TDU and TRF or any others.
Labor Notes does receive suggestions from its readership in the labor movement about editorial content. These suggestions are reviewed by West and the Labor Notes staff, but they are treated merely as suggestions. Our investigation revealed that during the course of the 2000-2001 IBT delegate and International officer election to date, no suggestions have been received from any candidates for IBT office, including Leedham and/or his campaign. The decision to publish the challenged article in the December 2000 issue of Labor Notes was made solely by its staff, without any input on the decision coming from the Leedham campaign, TDU or TRF.
The article attached to the instant protest appears in the December 2000 issue of Labor Notes. It is entitled "Teamster Reformers Say They Must Battle Hoffa Public Relations with Truth." Gruelle did not interview or speak with Leedham in preparing the article. All quotes from Leedham in the article are from Leedham's speech to the TDU convention. Gruelle did speak to individual members in preparing the article. Jim West edited the article.
The article is one page in length. It reports on Gruelle's discussions at TDU's November 2000 convention with IBT members concerning the IBT's 2001 delegate and International Officer elections. The article states that "TDU is backing the Rank and File Power Slate, which is running Tom Leedham of Portland Local 206 against Hoffa." The article reports critical comments about General President Hoffa by IBT members, including their claim that "he's done poorly on actual delivering and protecting good contract." It quotes Leedham as claiming that under Hoffa's leadership the IBT is "taking the members [out of the process] and leaving everything in the hands of officials and lawyers… [and that e]very time Teamsters have taken action to help themselves, the international has shut them down or turned their backs." The article then goes on to discuss the ways in which "[t]he Leedham campaign has got off to a good start", discussing its petition campaign, and its plan for local union delegate elections, while criticizing the Hoffa petition campaign as being run by paid staff on multiple salaries.
The article goes on to discuss the upcoming IBT convention, the issues that may be resolved there, and the situs of the convention in Las Vegas, which the article notes, was the situs of conventions in the 1970s and 1980s, when, according to "some" members spoken to by the reporter, the "Teamster pension funds were used to finance mobbed-up casino deals." The article notes the 1986 Jackie Presser party, and includes a picture of a TDU convention spoof of the party, while noting that "[t]he international this year points out that accommodations in Las Vegas are reasonably priced and the hotel industry there is highly unionized." The article also quotes criticism by "reformers" of alleged employer support of a September 2000 golf outing held in Las Vegas to support the "union's scholarship fund" and quotes Leedham as saying that if he is elected "that won't happen any more … My administration will not condone any socializing with employers."
According to Leedham campaign official Stefan Ostrach, the campaign has no control over or input on the editorial policy of Labor Notes. The campaign has not suggested articles to Labor Notes concerning the 2000-2001 election or otherwise. Nor has the campaign done anything to encourage the publication of articles in Labor Notes that are favorable to the Leedham campaign. According to Leedham, he was not interviewed for the article in the December 2000 issue of Labor Notes. Instead, the quotes from Leedham contained in the article were from his speech.
Analysis
The Rules define "campaign contribution" quite broadly:
The term "campaign contribution" means any direct or indirect contribution of money or other thing of value where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate for Convention delegate or alternate delegate or International Officer position. Campaign contributions include but are not limited to: …
(f) an endorsement or counter-endorsement by an individual, group of individuals, or entity; …
(h) the performance of personal services or the making available for use of space, equipment, supplies or advertisements . . .
Rules, Definitions, 5. The protestor alleges that this definition is broad enough to encompass the December 2000 Labor Notes article, and that Labor Notes, as well as the Leedham campaign, TDU and TRF have violated the Rules by providing, obtaining and not reporting a campaign contribution by an entity forbidden from such a contribution under the Rules. Labor Notes, however, responds by claiming that its publication of the December 2000 article is covered by the "media employer exception" recognized by past Election Officers. The question here is whether that exception, which is binding on the Election Administrator under Article I of the Rules, applies to Labor Notes here.
In applying prior election rules to media communications, Election Officers have recognized a broad exception for "publications intended for and disseminated to the general public." Such publications have been held to be entitled to the "the greatest latitude in exercising the right to communicate" as required by the First Amendment to the U.S. Constitution. Hoffa, P743 (May 23, 1996). Designated as the "media employer exception" to the regulation of campaign contributions, past Election Officers did 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, P365 (February 22, 1996); Brennan, P971 (October 16, 1991); Scott, P969 (October 18, 1991). The "media employer exception" specifically applies to those publications that, like Labor Notes, target a labor audience. See, e.g., Sauwoir, P41, et seq. (August 16, 1995) (applying the "media employer exception" to the labor media).
Election Officers have consistently determined that the lack ownership or control of a media entity by any International officer candidate or any committee acting on behalf of such a candidate is the primary requisite for the application of the "media exception." See Hoffa, supra (allegedly pro-Carey article in the Union Democracy Review); Pressler, supra (interview with Mr. Hoffa on radio station ROCK 103.5 in Chicago); Hasegawa, P161 (October 24, 1995) (article covering Hoffa campaign in The Labor Times); Scott, supra (article on 1991 Carey campaign in Labor Notes); Brennan, supra (reprinting of Carey campaign material in article on 1991 election in the Detroit Free Press).
Moreover, to the extent that a campaign suggests that the Rules require media entities to include opposing viewpoints in the same communication, the decisions cited above show otherwise. "Legitimate media communications often have an angle. The full story will not be found in any one communication. Therefore, the media exception is applicable even where the entity adopts a point of view." Rockstroh, P1003 (November 5, 1996).
Here, Labor Notes is independently owned by LERP, and we have found no evidence that Labor Notes' editorial policy is controlled by Leedham campaign, any other campaign, or any committee acting on behalf of any candidate campaign. Instead, as discussed above, our investigation established that Labor Notes' editorial policy is controlled solely by its editor and staff, thus qualifying Labor Notes for the media employer exception.
Labor Notes' December 2000 coverage of Leedham's activities as a candidate resulted in the publication of an article that was newsworthy to Teamsters and other readers of the publication and was well within the media exception. The fact that the coverage was friendly to Leedham and unfriendly to Hoffa was an editorial decision outside the scope of regulation under the Rules. Readers may seek balance from other communications. The Rules do not require Labor Notes to interview or report on other International officer candidates or to provide them with favorable coverage.
Instead, such articles, even if they contain opinion as well as hard news coverage, are legitimate media functions. Rockstroh, supra. Furthermore, the publication of editorial opinion is specifically enumerated in a provision of the Federal Election Campaign Act ("FECA") that is analogous to the media exception under the Rules, under which "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate…", is beyond the definition of a campaign contribution. 2 U.S.C. § 431(9)(B)(i). As that section recognizes, "commentary" and "editorial" enjoy the same exemption as "news story." Past Election Officers have relied upon this analogous law in reaching decisions similar to that reached here.[2]
In conclusion, we find nothing in the December 2000 issue of Labor Notes that exceeds the outer perimeter of the publication's constitutionally protected function as a provider of "news, commentary, or editorial" materials. Nor did our investigation reveal that Labor Notes' editorial policies are controlled by Leedham or any other candidate, or by any committee acting on behalf of any candidate.
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 two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Administrator. 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 all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th
Street, NW, 10th Floor, Washington, DC 20005, all within the time period 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
2001 EAD 78
DISTRIBUTION LIST VIA FACSIMILE AND UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
645 Griswold
Penobscot Building
Suite 1800
Detroit, MI 48226
Ellis Boal
9330 Boyne City Road
Charlevoix, MI 49720
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Teamsters for a Democratic Union
7437 Michigan Ave.
Detroit, MI 48210
Teamsters Rank and File Education and Legal Defense Foundation
7437 Michigan Ave.
Detroit, MI 48210
Labor Notes
7435 Michigan Ave.
Detroit, MI 48210
