IN RE: DAVID L. DETHROW,
Protest Decision 2001 EAD 381
Issued: June 4, 2001
OEA Case No. PR051211SO
David Dethrow, a member and chief steward in Local 688, 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"). Dethrow alleges that the May 2001 issue of 688 Steward, a local union-financed publication, campaigns on behalf of International General President candidate James P. Hoffa and his slate of International officer candidates, the "Hoffa Unity slate."
Election Administrator representative Jason Weidenfeld investigated the protest.
Findings of Fact
Local 688 publishes 688 Steward and distributes it to stewards several times annually. Each issue is one double-sided sheet of paper and contains at least two items: 1) a one-column article by secretary-treasurer Joseph Galli, Sr.; and 2) a two-column article without a named author. Both articles vary in scope, sometimes focusing on local issues and other times focusing on broader issues affecting the stewards and the membership generally.
A. In the May 2001 issue of 688 Steward, Galli's article, entitled "IBT Convention a Showcase for Unity," discusses Local 688's representation at the IBT Convention, which takes place in late June 2001. The article identifies the number of delegates and alternates from Local 688 who will attend and states that these members were unopposed on the "Galli Team for Hoffa" slate. The article lauds the slate's rank-and-file members for their participation in union democracy, emphasizing that 13 of 15 members attending the Convention are not officers.
The article continues with the following paragraph:
These delegates will be attending a convention for a Union that is stronger than anytime in the last 10 years. Less than two years ago the union was nearly broke. Since that time, the Hoffa administration has rebuilt financial union assets and member unity. Local 688 delegates will have the opportunity to play a part in what has been a great Teamster comeback.
Dethrow argues that the Galli article is a thinly veiled endorsement of James P. Hoffa and the Hoffa Unity slate in their International officer election campaign. The headline uses the word "unity," according to Dethrow, because this is a key element of the name of the Hoffa Unity slate, as well as a key Hoffa slate campaign theme.
We know from Hoffa slate campaign materials that "Unity" is a key slate theme. This can be seen on the Hoffa slate website, where the words "STAY UNITED!" are in the largest font on the home page of the website save for the word "Hoffa." The same format and words appear on most other pages as well. And, of course, the slate itself is designated as the "Hoffa Unity slate."[1] Other materials published by the Hoffa slate also focus on the central theme of "Unity." For example, the Hoffa slate's November 2000 "battle pages" from The Teamster state on their first page, "THE TEAMSTERS ARE BACK!!! UNITED AND STRONG AGAIN," surrounding a picture of General President Hoffa at a rally against free trade with China. Following on the very next page, the theme continues, with the heading, "THE TEAMSTERS ARE BACK UNITED AGAIN STRONG AGAIN KEEP HOFFA KEEP MOVING FORWARD." The theme of unity continues in various forms throughout the battle page ads, and in other Hoffa campaign materials as well.
The most recent battle pages from the January-February 2001 The Teamster makes the point even more explicitly. Thus, there the word "Unity" is reprinted on every Hoffa slate battle page, either as part of a main or secondary headline. The repeated use of the term is obviously intentional, and a central theme of the Hoffa slate's campaign.
Further, we know from the many delegate elections that "unity" is a key word for Hoffa supporters. For example, slates supporting Hoffa have often used "Unity" in their names: Local 89 (Zuckerman-Washburn Unity slate), Local 237 (Haynes 237 Unity Team), and Local 728 (Local 728 Unity slate).
In addition, the Hoffa slate's campaign materials focus on improvements in the IBT's financial conditions since the Hoffa administration took office. Thus, the November 2000 battle pages state:
HOFFA PROMISE MADE: RESTORE FINANCIAL STRENGTH[.] When Jim Hoffa and Tom Keegel ran for office in 1998, they promised to restore the Teamsters to financial strength without raising dues and without cutting services. They're doing it.The Teamsters union is now operating in the black for the first time in ten years, despite the fact that the former Administration had spent nearly $1 billion in Teamster member dues money and pushed the union to the edge of bankruptcy."
(Emphasis supplied.)
In light of this background, the protestor argues that the paragraph quoted from 688 Steward above is "purely a political argument." Further, he argues that the article's limited focus on the IBT's past ten years, when, for the most part, former president Carey ran the IBT, is designed to highlight the Hoffa administration's asserted accomplishments, for the purpose of furthering the candidacy of those on the Hoffa slate. Writes Dethrow, "[t]he statement that the Hoffa administration has staged 'a great Teamster comeback' is campaign rhetoric."
Local 688 secretary-treasurer Galli describes that the quoted paragraph is proper because it is based on financial facts. He argues that he "has the right to communicate [general president Hoffa's] key initiatives," including the rebuilding of the IBT's financial resources. Galli writes, "[a]s Local 688 secretary-treasurer, I have the right to communicate [Hoffa's] progress toward that goal and my opinions on the issue."
Galli further argues that "unity" is a "theme in all Local 688 publications. It has nothing to do with elections and everything to do with building a strong union." Galli asserts that rank-and-file participation at the Convention, regardless of affiliation, can "energize and unify members."
B. The second 688 Steward article at issue, "RISE Representative Set to Visit Local 688 Members," discusses RISE, a program designed to establish an internal code of ethics for IBT members and officers. The article quotes General President Hoffa's view of RISE and spells out the program's goals, as detailed by former IBT assistant director of education Cindy Impala. The article was written to coincide with Impala's visit to the local on May 16 and 17 to discuss the program. The article makes no mention of any of the IBT elections or the convention.
Dethrow argues that the RISE article is misleading, and asserts that it mistakenly claims that RISE will benefit the Union and also mistakenly states that to date government oversight has cost the IBT $100 million. Dethrow also points out that Galli has endorsed RISE. Ultimately, Dethrow believes that Hoffa's opponent for general president, Tom Leedham, should have the same opportunity as Hoffa to express his views on RISE.
Galli responds by asserting that RISE is important to the IBT and that "members have a basic right to understand the General President's opinion on issues affecting their Union." A RISE representative was coming to visit during the next Stewards' Council meeting, so the article highlighted the program.
Analysis
Article VII, Section 8 of the Rules prohibits the use of any union-financed publication "to support or attack any candidate or the candidacy of any person." Martin, 95 EAM 18 (October 2, 1995), establishes the standard for determining whether a union publication supports or attacks a candidate for union office: "[t]o determine whether a union publication has 'crossed the line' between printing a legitimate news article and campaigning on behalf of a candidate, courts routinely examine the 'tone, content, and timing' of the article in question. E.g., McLaughlin v. American Federation of Musicians, 700 F. Supp. 726, 733 (S.D.N.Y. 1988)." Id. at 5-6. See Lewis, 2001 EAD 57 (May 9, 2001).
Concerning tone and content, Martin states that newsworthy articles and articles containing wholly factual information "are generally permissible." Id. at 6 (citing McLaughlin, 700 F. Supp. at 735). In addition, "a union-financed publication may properly report on an incumbent's activities and objectives for the union and its membership," id. at 8, although excessive coverage of an incumbent could create a violation. Id.
When an article is not clearly newsworthy or not purely factual, we must consider the article's words and the context in which they are printed. Id. at 9 (citing McLaughlin, 700 F. Supp. at 732). The mention of a candidate in a newsworthy article will often not constitute a violation; likewise, if an article has "a temperate tone and avoids harsh criticism or lavish praise of the candidates," it will often be upheld. Id. at 9 (quoting Balanoff v. Donovan, 569 F. Supp. 966, 972-73 (N.D. Ill. 1983)).
Even if the tone and content of an article support a specific candidate, the timing of the article must be considered to determine whether a Rules violation has occurred. An article published on a date "remote in time" from an election will not violate the Rules. Id. at 12 (quoting Balanoff) (internal quotation marks omitted).
Applying the Martin standard to Galli's article, we find that the quoted paragraph from 688 Steward violates the Rules because it constitutes improper campaigning on behalf of General President Hoffa. The tone and content of the paragraph consists of adulation for the Hoffa administration and, implicitly, criticism of the preceding Carey administration, with which the Hoffa campaign has sought to link Leedham. The article's emphasis on newly-found Teamster "unity," telegraphed in its headline, along with its commendation of the Hoffa administration's accomplishments, is partisan praise for one side in the upcoming International officer elections. Similarly partisan is the article's argument that the union is stronger than anytime in the last ten years. Those years, of course, were the only ones when asserted-Leedham ally Carey led the IBT. Likewise, the reference to "a great Teamster comeback" during the last two years under Hoffa, compared to the time under the Carey administration that "left the Union nearly broke," is an endorsement of Hoffa made in almost the same way as in the Hoffa battle pages. Just as important as the specific language, the paragraph's overall tone is clearly one of approval for Hoffa, and all in a paragraph that makes up one-third of the article.
The timing of the publication, less than two months before the IBT Convention and the nomination of delegates, also support our conclusion of impropriety. Ballots will be mailed in October, approximately five months after the publication of the 688 Steward at issue. The publication of this article to stewards such a short time before the convention and five months before the mailing of ballots warrants a finding that the article constitutes improper campaigning. See New Directions v. Seda, 867 F. Supp. 242 (S.D.N.Y. 1994) (article published five months prior to nomination ballots and six months prior to election violated LMRDA; cited in Martin, 95 EAM 18 at 13).
We reject the claim that our decision in Higdon, 2001 EAD 346 (May 4, 2001), sanctions the article's emphasis on the Hoffa campaign theme of "unity." There, we held that use of that and other "generic trade union terms that have not become so closely associated with a particular campaign as to constitute an endorsement of that campaign" was permissible. By contrast to the facts here, the article there made no mention of International officer politics or the International convention or elections. Here, what is undoubtedly in some contexts a "generic" trade union term has been reprinted in an article that adopts that term in the same way as it has been adopted by an International officer candidate slate: as a central theme of that slate's campaign for reelection. Nothing prohibits a slate from so adopting what might otherwise be a generic term as part of its campaign message. That is entirely legitimate. What is illegitimate is the printing of the campaign's messages and themes in a local union publication during the election season. During that season, such messages must be left to partisan campaign publications. They may not be included in local union publications masquerading as legitimate union news or comment.
For the same reasons, we find that the repeated use by the Hoffa slate of the concept of "unity" as a central theme of its campaign materials and of the campaign itself means that our earlier decision in Rushing, 2000 EAD 51 (November 28, 2000), cannot be relied upon as a basis for denial of this protest allegation. Since that decision, the content of the Hoffa slate's campaign materials has made clear that the campaign has moved beyond use of the word "unity" as a generic trade union term. Instead, it has become a proxy for the Hoffa slate campaign itself, especially when coupled, as here, with other themes such as the progress the Hoffa slate claims the IBT has made since Hoffa's accession to office. Again, those are legitimate claims, so long as they are confined to campaign literature.
For the foregoing reasons, we GRANT the protest allegation as to Galli's article.
With respect to the RISE article, we DENY the protest allegation. The article's tone is temperate and informative. The article, unlike Galli's column, does not mention or allude to the IBT Convention or any elections. Rather, it alerts stewards to an upcoming visit from a RISE representative, describes the RISE program and its goals, and offers Galli's opinion of the program's value. The article is not improper, even if Galli and Hoffa express their opinions of RISE and even if the protestor questions the sincerity of their statements. Elected union officials generally have the right to use union-financed publications to discuss union activities, even if their election challengers do not have the same opportunity. Camarata v. Teamsters, 102 LRRM 3053, 3060 (D.D.C. 1979); cf. Hodgson v. Liquor Salesman's Union, Local 2, 334 F. Supp. 1369, 1381 (S.D.N.Y. 1971), aff'd, 444 F.2d 1344 (2d Cir. 1971) (finding that an LMRDA violation might occur if an article distinctly favors the incumbents while discrediting their opponents and fails to report information "in a purely factual, unbiased manner.")
Remedy
When the Election Administrator determines that the Rules have been violated, he "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator views the nature and seriousness of the violation as well as its potential for interfering with the election process.
The next regularly scheduled issue of 688 Steward will be published in the first week of September, 2001 and mailed to all Local 688 stewards within a few days thereafter. It is also possible that a non-regularly scheduled issue will be published before September. Ballots for the International officer election will be mailed on October 9, 2001, and the count date is November 14, 2001. Therefore, there is sufficient time for the local union to publish a responsive article by the Leedham slate in the next issue of 688 Steward, and we ORDER Local 688 to do so. The article shall be one column long and appear on the front cover, in the same location as the challenged article. The Election Administrator will resolve any disputes concerning compliance with this order.
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 all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street NW, Tenth 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 381
DISTRIBUTION LIST VIA 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
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Bingham Farms, MI 48025
Barbara Harvey
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
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
David L. Dethrow
2843 Radner
St. Charles, MO 63301
Joseph A. Galli, Sr.
Secretary-Treasurer
IBT Local 688
300 South Grand
St. Louis, MO 63103
IBT Local 688
300 South Grand
St. Louis, MO 63103
Dolores Hall
1000 Belmont Place
Metairie, LA 70001
[1] Even such mundane elements of the Hoffa website's campaign materials as the "Online Store Order Form" adopt the "Unity" theme. Thus, before the blanks for a purchaser's name, address and credit card information, that form states "I WILL HELP RE-ELECT JIM HOFFA FOR PRESIDENT AND STAY UNITED!"