Protest Decisions

IN RE: BOB HASEGAWA,
Protest Decision 2001 EAD 423
Issued: August 8, 2001
OEA Case No. PR070911WE

(See also Election Appeals Master decision 01 EAM 79)

Bob Hasegawa, a candidate for Western Region vice president on the Tom Leedham Rank and File Power slate (the "Leedham slate"), 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"). He alleges that the lead article in the May-June issue of the Local 174 newsletter, Front Line, improperly retaliates against him for exercising his right to protest under the Rules. Hasegawa also alleges that the article "set the tone" for attacks and lies in other articles throughout the newsletter. In total, Hasegawa alleges, the newsletter "is obviously designed" to damage his candidacy.

Election Administrator representative Jason Weidenfeld investigated the protest.

Findings of Fact

This protest stems, at least in part, from the facts underlying our decision in Hasegawa, 2001 EAD 375 (May 22, 2001). There, we denied a protest by Hasegawa that alleged that an article submitted by Local 174 and published in the February-April Washington Teamster violated the Rules.

In the May-June Front Line, Local 174 secretary-treasurer Scott Sullivan published a one-page article entitled "Protest Response" because, as he states in the article, he felt that he "must comment on [this] protest." This admission followed Sullivan's opening sentence, "There are only a few things that are guaranteed these days, like death, taxes, and protests from Bob Hasegawa." Sullivan chose to respond to Hasegawa's protest in the Front Line because Hasegawa "always addresses me in public forums -- such as in pamphlets, discussions with political friends, and court documents."

The remainder of Sullivan's article consists largely of Sullivan stating that he respects each member's right to vote and to have a viewpoint different from his. Sullivan asserts that this asserted respect for different views contrasts with Hasegawa, who, Sullivan alleges, acted "as if he spoke for everyone at the Local." Near the end of the article, Sullivan writes, "I commend [Hasegawa] for his passion. I just wish he could recognize that other people are entitled to have views different than his own." Sullivan concludes his article by mentioning that Local 174's elected delegates and alternates will have space in the next Front Line, an opportunity denied "the democratically-elected 1996 Delegates." In 1996, Hasegawa was Local 174's secretary-treasurer.

In addition to Sullivan's article, Hasegawa claims that a number of articles contain negative comments about the previous administration led by Hasegawa and are aimed at injuring his International officer candidacy. An article by business agent Mike Wilson asserts that Hasegawa's administration, unlike the Sullivan administration, gave little import to the K & L Distributors Bargaining Unit. An article by business agent Mike Werner comments on a "problem inherited from the previous Administration" concerning Airborne Express and on the current Local 174 administration's activities regarding "[Yellow Freight] outstanding issues and concerns that weren't addressed in the past." Hasegawa also objects vehemently to an article by business agent Tim Sullivan, which states that "it appears the former Local 174 Administration did not properly open [an] agreement [with Service Paper, so] our members must wait another year before they can renegotiate their contract."

Hasegawa claims that the entire Front Line reflects a concerted attack on his International officer candidacy and on his right to protest under the Rules. He asserts that Sullivan's article is retaliation for his filing of a protest and that the other articles were created to further damage his bid for an International officer position.

Analysis

Article VII, Section 8(a) of the Rules provides that union-financed publications may not be "used to support or attack any candidate or the candidacy of any person." To determine whether a union publication has been improperly used to support or attack a candidate, we apply the "tone, timing and content" test to the publication. Pope, 2000 EAD 4 (August 1, 2000), aff'd, 00 EAM 3 (August 29, 2000).

In Blake, P245 (December 18, 1995), aff'd, 96 EAM 54 (January 12, 1996), the Election Officer held that "generally factual accounts of [protest] decisions" in union publications involving a candidate may be legitimate even when negative references about a candidate are included in the account. 96 EAM 54 at p. 2. See also, Moriarty, PR 24 (November 6, 1997) and Mee, PR36 (December 10, 1997). In Blake, the challenged "article contained factually accurate accounts of four protest decisions recently issued by the Election Officer and reviewed by the Election Appeals Master. The findings in [those] decisions were a legitimate, newsworthy subject for a union-financed publication. Moreover, the fact that the decisions contained passages critical of Mr. Carey's conduct did not render the article biased or otherwise improper." 96 EAM 54, p. 5. Moreover, even though the challenged "article focused exclusively on decisions adverse to Mr. Carey and [ ] the article made specific reference to Mr. Carey's candidacy[,] … [t]his … [did] not diminish the fact that the article was newsworthy in content and generally objective in tone."

Here, the article does not report on any of the Election Administrator's decisions as to any of the protests filed by Hasegawa, some of which were found to be meritorious and some of which were not.[1]  Instead, the article simply states Sullivan's criticism of Hasegawa for filing election protests, along with other criticisms and a comparison of Hasegawa's conduct with that of Sullivan and the rest of the current Local 174 administration. In other words, the tone and content of the article support the claim that rather than being addressed to matters of legitimate interest to IBT members, such as the result of protest decisions (one of which found Sullivan to have violated the Rules), the article is devoted primarily to an attack on Hasegawa, an International officer candidate. Similarly, the timing of the article, in the heat of the International officer campaign, weighs on the side of concluding that the article is an improper use of union resources to attack Hasegawa.

Weighed against this is the fact that the article nowhere mentions the fact that Hasegawa is an International officer candidate. This factor alone is not determinative, however, where the fact of Hasegawa's candidacy appears to be well known among the membership of Local 174, given the high visibility political battles both inside and outside the local in which Hasegawa has been and continues to be involved. Accordingly, we GRANT the protest allegation insofar as it complains of improper use of union resources to attack Hasegawa's candidacy.[2]

By contrast, the other articles in the Front Line complained of by Hasegawa are appropriate under the Rules. For the most part, these articles focus on events, not opinions. Moreover, notwithstanding their negative comments about the previous (i.e., Hasegawa) administration, these articles are appropriate because they report factually on matters of legitimate interest to union members, such as contract negotiations. Hasegawa is not immune by virtue of his International officer candidacy from any reporting that might reflect negatively on him, at least where the matters are reported in an appropriate journalistic manner and concern business matters of concern to the union's members. Accordingly, we DENY the remaining protest allegations.

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.

Hasegawa claims that Sullivan has distributed the May-June 2001 Front Line to numerous members and nonmembers, including anti-Hasegawa forces in the West and at the IBT. Sullivan admits that the Front Line was distributed to all Local 174 members and retirees but claims that his administration has actually limited the distribution to nonmembers compared to the previous administration. The figures from Grosse Mailing, which has mailed the Front Line under both administrations, support Sullivan's claim.

As was ordered in Kilmury, P303 (February 15, 1996), aff'd 96 EAM 109 (February 28, 1996), Hasegawa asks that the Election Administrator order the local union to finance a mailing to the membership by the candidate. However, this remedy was required in Kilmury only because the publication schedule of the local union's newspaper precluded a responsive article before the delegate ballot count date. Here, it is our understanding that the Local 174 newspaper will be published before the mailing of International officer ballots on October 9, 2001. In this case, therefore, the publication by the local union of a responsive article by Hasegawa in the next issue of its newspaper will be a sufficient remedy, and we so order. See Ostrach, 2001 EAD 68 (December 20, 2000). The Hasegawa article shall be the same size and have the same location in the newspaper as the challenged "Protest Response" article. Any disputes concerning this will be resolved by the Election Administrator. We further order Sullivan and Local 174 to cease and desist from any further violation of the Rules.

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 (February 13, 1996).

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 15^th Street NW, Tenth Floor, Washington, DC 20005 (facsimile: 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 423

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

Suite 1551

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

Todd Thompson

209 Pennsylvania Ave., SE

Washington, DC 20003

IBT Local 174

553 John Street

Seattle, WA 98109

Scott Sullivan

IBT Local 174

553 John Street

Seattle, WA 98109

Kenneth J. Pedersen

Davies Roberts & Reid LLP

101 Elliott Ave. W.

Suite 550

Seattle, WA 98119

Bob Hasegawa

3121 16^th Ave. S.

Seattle, WA 98144

Christine Mrak

2357 Hobart Ave., SW

Seattle, WA 98116