IN RE: BILL ZIMMERMAN and TOM LEEDHAM RANK AND FILE POWER SLATE,
Protest Decision 2001 EAD 424
Issued: August 10, 2001
OEA Case Nos. PR073111WE, PR080211NA, PR080612WE and PR080712MW
(See also Election Appeals Master decisions 01 EAM 80 and 01 EAM 80a)
Bill Zimmerman, a member, president of Local 206 and delegate to the June 2001 IBT convention, and the Tom Leedham Rank and File Power Slate (the "Leedham slate") filed pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). The Zimmerman protest (PR073111WE) alleges that the IBT's July 2001 issue of the Teamster Leader magazine is, because of its content, "an improper use of union resources to further the campaign of the Hoffa Unity Slate ... [and] comes across as an endorsement of the Hoffa Unity Slate by the IBT." The three Leedham slate protests challenge, first, the IBT's alleged failure to submit the July 2001 Teamster Leader to the Election Administrator for review and approval prior to publication, pursuant to Article VII, Section 8(e) of the Rules, second, Local 396's alleged use of its membership newsletter "to support the Hoffa Unity Slate campaign [and to state] an endorsement of the Hoffa Unity Slate in violation of the Rules," and third, Joint Council 39's alleged use of its July 2001 issue of the Wisconsin Teamster to support and endorse the Hoffa Unity Slate (the "Hoffa slate").
Election Administrator representative Lois Tuttle investigated the protests.
Background
Article VII, Section 8 of the Rules prohibits use of a union-financed publication or communication "to support or attack any candidate or the candidacy of any person." Section 11(b) of the same article bars a union from endorsing or otherwise advancing a candidacy. Section 11(c) prohibits use of union funds, facilities, equipment and personnel "to assist in campaigning" unless the assistance is at candidate expense and is available to all candidates. Article XI, Section 1(b)(3) prohibits a union from contributing "anything of value" to a candidate "where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election" of the candidate. Article XI, Section 1(b)(13) holds a candidate "strictly liable to insure that each contribution received is permitted under these Rules." Finally, Article VII, Section 8(e) requires that all union-financed publications "to be mailed or otherwise distributed to the membership between August 2001 and November 2001 [are to] be submitted to the Election Administrator for review and approval prior to publication."
The Election Administrator has addressed issues similar to those raised here in the recent decisions in Dethrow, 2001 EAD 381 (June 4, 2001); Martinez I, 2001 EAD 384 (June 11, 2001), appeal withdrawn; and Martinez II, 2001 EAD 414 (July 27, 2001), appeal pending. Those precedents, as well as that of Lopez, P242 (December 19, 1995), aff'd, 96 EAM 51 (January 8, 1996), guide our decision here, subject to the ultimate result of the pending Martinez II appeal.[1]
Findings of Fact
1. The Teamster Leader is an official IBT publication distributed to local and International officers, stewards and contributors to DRIVE, the IBT political arm, with a total distribution of more than 100,000 for each issue. The July 2001 issue under challenge covers, inter alia, events at the June 2001 IBT convention. The IBT mailed the publication in July 2001.
The masthead of the publication contains its name, the IBT logo, and the words "UNITY . PRIDE . STRENGTH." The publication reports on resolutions and constitutional amendments adopted at the convention, contains the keynote speech of General President Hoffa and the report of General Secretary-Treasurer Keegel, and contains coverage of collective bargaining issues at UPS and elsewhere. The publication closes with a short letter from General President Hoffa entitled " Breathtaking Unity" that calls the convention a show of "breathtaking unity" and contrasts the 2001 convention with the 1996 Philadelphia convention, at which, according to the article, the "union was profoundly divided…." The letter closes with the sentence: "Our convention this year proved once against that UNITED, WE WIN." (Emphasis in original.)[2]
Zimmerman also submitted a letter that the Hoffa slate sent to him and all other IBT convention delegates which is undated, signed by candidate Hoffa, and which Zimmerman says he received shortly before the convention. He does not allege that the letter violates the Rules, but rather relies on the letter as an example of the Hoffa slate's use of "words and phrases that are very similar to the content of this official IBT publication." The letter is addressed to "Dear Delegate Bill Zimmerman" and offers him "Congratulations on being elected as a Delegate to our June Convention." The letter then states:
I am looking forward to working with you and having a productive and successful Convention that adds further momentum to the process of restoring Teamster unity, pride and strength.
There are other references in the delegate letter to these terms. Thus, the first two paragraphs on the second page of the letter state:
First, we will clearly show the nation that the Teamsters are united and strong again.
In a powerful display of unity and strength, the Hoffa Unity Slate has won the support of over 90% of the elected delegates to the Convention.
Juxtaposed with this, the letter refers to Leedham's campaign as "a cynical effort to bring us back to the days of division, weakness, and financial disarray…" The word "division" is an antonym for the word "unity," and the word "weakness" is an antonym for the word "strength." In other words, the IBT and the Hoffa slate both identify themselves with "unity" and "strength" while the Hoffa slate at the same time argues that Leedham and his campaign represent the opposite.
2. IBT Local 396 publishes a newsletter for its members. The top front-page story of the July 2001 issue of the newsletter is titled "A Message From … Secretary Treasurer Danny J. Bruno," and appears to the left of a photograph of Bruno atop a caption that states, in bold letters, "REMEMBER YOUR VOTE COUNTS!" The copy reads:
Brothers and Sisters:
The recent 26th International Brotherhood of Teamsters Convention was a great success many resolutions were passed. Look forward to the next newsletter with information about it. The IBT is very committed to winning better contracts for the members. As a result of the passing of these resolutions, meetings are being called to inform members of contract proposals and what can be expected of the members in the months ahead to win better contracts. United not Divided we all win! Your General President, Jim Hoffa, has placed a very high priority on improving contracts, health and safety, and pensions. The plan is to build better lives through Unity. We have had internal fighting for far too long. There is a need for all members to come together for the common good. Our European Brothers and Sisters are very pleased that the Teamsters are once again reaching out to other Unions in an attempt to re-establish the bond that we all share. We must all stand together united. Every attempt must be made to organize the unorganized the lifeblood of all labor organizations. Be prepared. Expect the unexpected and save your money in preparation of your upcoming contracts. No stronger message can be sent to Management than that their employees, our Union Brothers and Sisters, are sick and tired of the nonsense being dealt out and they are not going to take it any longer. If need be, they will strike to win better contracts and stop management harassment.
See you on the shop floor! Danny
No mention of candidate Tom Leedham appears in the publication.
3. Joint Council 39 publishes the Wisconsin Teamster. In the July-August 2001 issue of the publication, the entire front page features an article entitled "IBT charts future course: Convention stresses progress through unity." The article covers the IBT convention and in its first sentence states that the IBT "wrapped up its 26th International Convention, ready to face the 21st Century united, proud and strong." It goes on to quote General President Hoffa as stating that, "Today, we leave this Convention stronger and more united than ever, prepared to fight for our members and all working families." A photograph appearing at the bottom left of the article features delegates wearing vests that signal their support for the Hoffa slate, and a caption stating, "Delegates raise their hands in unity." Above it, a left-and-center photograph features Hoffa and IBT General Secretary-Treasurer Keegel. No photographs, quotes, or other coverage of Leedham slate candidates appear anywhere on the page.
The publication's sixth page features an article entitled "A report to the members…" authored by Local 23's secretary-treasurer, Michael Maramonte. That article also references the IBT convention, as well as its delegates, "1500 strong and all with the same goal of keeping our union the strongest labor organization in the world." It goes on to state:
They [the delegates] seemed to know what they had to do, including nominating someone to lead our union into the 21st century.
I'm happy to report that the overwhelming consensus was that James P. Hoffa would be that man. Few votes went for Leedham. As a bonus, our own Joint Council 39 President Fred Gegare got more votes for VP-at-Large than any of the many other nominees-something we can all be proud of here in Wisconsin!"[3]
Analysis
In Martinez I we held that the terms "unity," "pride," and "strength" had become so closely associated with the Hoffa campaign as to make their use in union-financed publications and communications during the electoral period implicit endorsements of the Hoffa slate. Here, we are confronted with further evidence of that fact in the form of a pre-convention letter from the Hoffa slate, signed by candidate Hoffa, to all IBT delegates, which features the "unity, pride, strength" theme, identifies the Hoffa campaign with those themes, and portrays candidate Leedham as a representative of "division" and "weakness."
We also noted in Martinez I and in Martinez II that these words "are undoubtedly in some contexts 'generic' trade union terms" that do not carry an internal-union political message, and the IBT and its affiliates may use those terms in contexts where there is no internal political message being conveyed. The line-drawing task must be undertaken with the "tone, timing and content" analysis established under Election Rules precedent.
As to the July 2001 issue of the Teamster Leader, the decision in Martinez II requires that we find that it improperly supports the Hoffa campaign. Thus, it uses the Hoffa slate slogan "unity, pride, strength" in its masthead, without reference to any union-related objective. And, the issue reprints the Hoffa and Keegel convention speeches that were found to include improper campaigning through use of the Hoffa campaign's "unity, pride, strength" slogan to support broad, non-specific goals, rather than being tied to specific union objectives.[4] We accordingly GRANT this protest allegation.
We also GRANT the protest allegation as to the Local 396 newsletter. There, the challenged article speaks to the need for unity rather than division with respect to collective bargaining with employers. Under Martinez II, such a tie to a specific union objective weighs in support of the claim that the article is not intended to endorse the Hoffa campaign, despite the use of the term "unity." Yet the article is adjacent to the author's caption REMEMBER YOUR VOTE COUNTS, and the article mentions only one of the two candidates for General President, James P. Hoffa. This, coupled with the use of the Hoffa slate slogan (and slate name) "unity," as well as the article's statement that "[w]e have had internal fighting for far too long," supports the claim that Bruno's message is intended to convey a pro-Hoffa message tied to the upcoming International officer election.
The Wisconsin Teamster articles, viewed as a whole, clearly favor the election of General President Hoffa and can be seen as an endorsement of his slate's campaign. Thus, Local 23 secretary-treasurer Maramonte's article speaks of the IBT's convention delegates as "seem[ing] to know what they had to do, including nominating someone to lead our union into the 21st century." Then, Maramonte wrote, "I'm happy to report that the overwhelming consensus was that James P. Hoffa would be that man. Few votes went for Leedham. As a bonus, our own Joint Council 39 President Fred Gegare got more votes for VP-at-Large than any of the many other nominees-something we can all be proud of here in Wisconsin!" These comments are an endorsement of Hoffa and Gegare in violation of the Rules. We accordingly GRANT the Leedham slate's Wisconsin Teamster protest.
Remedy
When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interference with the election process.
To remedy the violations here we order the Hoffa slate, the IBT, Local 396 and Joint Council 39 to cease and desist from any further use of official union publications to support or endorse IBT international officer candidates or slates. To level the playing field, we further order the IBT, Local 396 and Joint Council 39 each to publish a responsive article by the Leedham slate in their next issue of the Teamster Leader, the Local 396 newsletter, and the Wisconsin Teamster respectively, if such issue is published before the mailing of the International officer election ballots.[5] See Ostrach, 2001 EAD 68 (December 20, 2000). If any of the publications do not issue before that date, then the union publisher shall pay the full costs for a single-page mailing by the Leedham slate to the recipients of the publication. See Kilmury, P303 (February 15, 1996), aff'd 96 EAM 109 (February 28, 1996).
The orders of the Election Administrator contained herein take immediate effect unless otherwise stayed. 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 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 424
DISTRIBUTION LIST VIA 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
Hoffa Unity Slate 2001
209 Pennsylvania Ave. SE
Washington, DC 20003
Bill Zimmerman
7104 NE 61st Avenue
Vancouver, WA 98661
IBT Local 396
Danny J. Bruno
880 Oak Park Road
Suite 200
Covina, CA 91724
IBT Joint Council 39
1546 Main Street
Green Bay, WI 54302
IBT Local 23
Michael Maramonte
633 S. Hawley Road
Suite 102
Milwaukee, WI 53214
Scott Soldon
Previant, Goldberg, Uelmen, Gratz,
Miller & Brueggeman, P.C.
1555 North Rivercenter Drive
Milwaukee, WI 53312
[1] We held in Martinez II that the terms "unity," "pride," and "strength" had become so closely associated with the Hoffa campaign as to make their use in union-financed publications and communications during the electoral period implicit endorsements of the Hoffa slate. We noted, however, that the words "are undoubtedly in some contexts 'generic' trade union terms" that do not carry an internal-union political message, and the union may employ those terms in such permissible contexts. We ordered the IBT, inter alia, to cease and desist from using the terms "unity," "pride" and "strength" singly or in combination unless the context demonstrates a connection to a legitimate union goal such as a contract campaign against a specific employer.
[2] In Martinez II, we found that immediately following the acceptance speech of candidate Hoffa at the IBT convention and continuing for 98 seconds a large graphic reading "United We Win" was projected on the screens behind the center podium. Further, we found that immediately after candidate Leedham's acceptance speech and continuing for more than 30 seconds, the phrase, "Unity, Pride, Strength" was projected on the screens behind the podium.
[3] Gegare is a Hoffa slate International officer candidate.
[4] We DENY the Leedham slate protest allegation that the IBT failed to submit the July 2001 issue of Teamster Leader to the Election Administrator for review and approval under Article VII, Section 8(e) of the Rules, since the issue was mailed on July 18, 2001, when such prior review and approval was not required.
[5] The Teamster Leader and Wisconsin Teamster responsive articles are to be one page in length each, while the Local 396 newsletter responsive article shall be one-half page in length. Each shall have similar placement to the articles that are the subject of the protests here. Any disputes concerning these matters will be resolved by the Election Administrator.