IN RE: HOFFA UNITY SLATE,
Protest Decision 2001 EAD 322
Issued: April 18, 2001
OEA Case No. PR010211NA
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 the Association for Union Democracy ("AUD"). It alleges that AUD's publication of an article in its December 2000 issue of Union Democracy Review covering the November 2000 Teamsters for a Democratic Union ("TDU") convention constitutes an improper campaign contribution to the Tom Leedham campaign under the Rules.
Election Administrator representative Michael Nicholson investigated the protest.
Findings of Fact
AUD is an independent organization recognized by the Internal Revenue Service as a tax-exempt educational foundation. It is governed by a board of directors, which directs its affairs. There is no evidence that the board is controlled by TDU or the Leedham campaign, although two of the members of its board are attorneys who have represented TDU or TDU members. Its staff consists of Herman Benson, Union Democracy Review editor; Carl Biers, executive director; Jane Latour, Women's Project director; Matt Noyes, education coordinator; Andy Piascik, office manager/program coordinator; and Mike Orrfelt, AUD West Coast representative. It's activities are extensively discussed on its website, www.uniondemocracy.com.
AUD sends Union Democracy Review to its members and subscribers. Carl Biers wrote the article that is the subject of the protest. He stated that AUD's publication is devoted to the subject of union democracy generally, and that TDU is in the forefront of union democracy issues. Accordingly, says Biers, coverage of its convention is an item of major news interest for AUD and Union Democracy Review.
The article is four paragraphs in length. It discusses the convention, the upcoming IBT elections, the Leedham petition drive, Teamster reform issues, alleged past racketeer influence in the union, and the subject of "rank and file power" in the union. A picture of TDU convention attendees accompanies the article. The article speaks favorably of the Leedham candidacy and unfavorably of the Hoffa candidacy.
The protest alleges that the publication of this article is a "reprint[ing] of publicity generated by [TDU] concerning TDU's efforts to promote the candidacy of Tom Leedham and to attack the candidacy of James P. Hoffa[, and that b]ecause AUD shares office space with TDU …, and because it has reprinted materials and publicity developed by TDU, AUD no longer can be fairly entitled to claim that the so-called 'media exception' applies to its ongoing efforts to interfere in IBT internal politics." In support of this claim, the Hoffa slate cites Mee, PR45 (February 18, 1998), on remand (March 19, 1998).
Carl Biers authored the challenged article. According to his testimony, he did not draw the text of the article from publicity authored by TDU or its staff. Instead, it represented Biers' observations at the convention, at which he was present, as well as his discussions with convention participants. The article was not previewed by TDU or the Leedham campaign before its publication. Nor does TDU or the Leedham campaign have editorial input into the contents of Union Democracy Review, according to Biers.
The rental arrangements referred to in the protest are long-standing and at arms-length. Thus, TDU pays AUD rent for office space in Brooklyn based upon the proportion of square footage occupied by TDU staff. Copying costs on a shared copying machine are apportioned on a per copy basis. There is no evidence of AUD subsidization of TDU.
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 Union Democracy Review article, and that AUD has violated the Rules by providing a campaign contribution to the Leedham campaign while being an entity forbidden from making such a contribution.
The question here is whether AUD and its publication are covered by the "media employer exception" recognized by past Election Officers. That exception applies to "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 Union Democracy Review, target a labor audience. See, e.g., Sauwoir, P41 (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, there is no evidence that TDU, the Leedham campaign, or any other campaign or committee acting on behalf of any candidate controls Union Democracy Review's editorial policy. Instead, as discussed above, its editorial policy is controlled solely by the AUD, thus qualifying Union Democracy Review for the media employer exception. Nor is there anything in the rental arrangement between TDU and AUD in Brooklyn that suggests TDU control or influence over AUD or the editorial policy of its organ.
Union Democracy Review's December 2000 coverage of the TDU convention is newsworthy to readers of that publication and 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 that publications like Union Democracy Review provide International officer candidates with favorable coverage.
Finally, Mee, supra, is not to the contrary. There, the article found to violate the Rules were found to have been written by a "representative" of the candidate, and were a "verbatim [reprinting] of the [candidate's] solicitations for contributions of time and money." Nothing of the sort is presented here.
In conclusion, we find nothing in the December 2000 issue of Union Democracy Review 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 the publication's editorial policies are controlled by TDU, Leedham or any other candidate or committee acting on behalf of a 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 (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 322
DISTRIBUTION LIST VIA FACSIMILE AND UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
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Bradley T. Raymond
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J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
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Penobscot Building
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Betty Grdina
Yablonski, Both & Edelman
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Tom Leedham
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110 Mayfair
Eugene, OR 97404
Teamsters for a Democratic Union
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Detroit, MI 48210
Association for Union Democracy
Attn: Carl Biers
800 State Street'
Brooklyn, NY 11217