IN RE: Bob Gamaza and Sam Rosas,
Protest Decision 2001 EAD 278
Issued: March 28, 2001
OEA Case Nos. PR030516WE and PR030812WE
Bob Gamaza, a member of Local 439 and representative of the 439 Hoffa Rank and File Team Slate ("Rank and File slate") and Sam Rosas, also a member of Local 439 and representative of the 439 Hoffa Unity Slate ("Unity slate") each 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"). Gamaza alleges that the Unity slate distributed a campaign leaflet in which it falsely claimed that seven named union stewards endorsed the Unity slate. Rosas alleges that the Rank and File slate distributed a leaflet using the names of eight Local 439 members who were misled into giving their endorsement.
Election Administrator representative Michael Four investigated this protest.
Findings of Fact
A. On January 29, 2001, Local 439 conducted its nomination meeting. Two slates and one independent candidate were nominated. The names of both slates indicate that they support the Hoffa 2001 Unity slate.
On behalf of the Unity slate, business agent George Kelly, along with other Local 439 business agents, spoke with business agents and stewards who verbally gave their endorsements. Their names were printed on a leaflet and mailed to members on February 28, 2001, the same day that the local's ballots were mailed.
On March 6, 2001, Gamaza filed this protest stating that seven stewards whose names appear on the Unity slate's leaflet actually endorse the Rank and File slate. He submitted a flyer signed by four of the seven stewards indicating this.
In response, Rosas asked Kelly to send a letter to the specific members identified in the protest, asking them to contact Kelly immediately if the claim of their endorsements was not correct. According to Rosas, no one responded.
B. During the campaign, the Rank and File slate distributed flyers including the names of many Local 439 members in support of that slate. The names were taken from endorsement petitions that were circulated among members. The petition form clearly stated in bold print, "Endorsement Petition." The slate's name and names of the candidates were listed on the petition. It further included the following disclaimer above the signatures:
We, the undersigned Members of Teamsters Local 439 hereby endorse and support the "439 Hoffa Rank & File TEAM" for the 2001 Teamsters International Convention, and hereby authorize the use of my name by the "439 HOFFA RANK & FILE TEAM" on any mailers, flyers, or other campaign material as determined by the Team.
Rosas claimed that eight individuals whose names appear on the Rank and File flyer actually endorse the Unity slate and were either confused by the petition or did not read it before signing. He submitted documents indicating that the eight individuals did not want to sign the petitions but did so only because the persons circulating the petitions lied to them and they did not understand what they were signing.
Analysis
Election Officers have repeatedly ruled that they will not regulate the content of campaign literature. See Yolland, P660 (April 3, 1996); Landwehr, P201 (November 15, 1995); Rogers, P518 (February 21, 1991). The Election Officer has held:
The fact that campaign statements … were allegedly false or even defamatory does not remove such literature from the protection of the Rules. The model for free and fair Union elections is that of partisan political elections. In those elections, contestants are generally allowed to make whatever assertions, allegations, statements of opinion or even of alleged facts without legal sanctions for their truth or falseness. The cardinal principle is that the best remedy for untrue speech is more free speech, with the electorate being the final arbiter.
Braxton, P304 (May 21, 1991).
Accordingly, we are required to DENY the Gamaza protest without determining the veracity of the campaign literature involved. For the same reason, we DENY this aspect of the Rosas protest.
We also find that the Rank and File petition did not mislead its signatories and further find that there is insufficient evidence to show that those who distributed the petitions lied to the members. Accordingly, we DENY the allegations of the Rosas protest to the contrary.
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 all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street, N.W., 10th Floor, Washington, D.C. 20005 (fax: 202-454-1501), 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
2001 EAD 278
DISTRIBUTION LIST (BY UPS NEXT DAY AIR UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
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 Rd.
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
Suite 1800
Penobscot Building
645 Griswold
Detroit, MI 48226
Tom Leedham
c/o Stefan Ostrach
110 Mayfair Lane
Eugene, OR 97404
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. N.W.
Washington, DC 20036
IBT Local 439
1531 East Fremont Street
Stockton, CA 95205
Dolly Gee
Schwartz, Steinsapir, Dohrmann &
Sommers
6300 Wilshire Blvd. Suite 2000
Los Angeles, CA 90048
Bob Gamaza
338 Indiana Street
Woodbridge, CA 95258
Sam Rosas
796 Cherry Hill Court
Lathrop, CA 95330