IN RE: LOCAL 688 et al.,
Decision 2001 EAD 472
Issued: September 26, 2001
Local 688 has submitted materials it wishes to publish for review pursuant to Article VII, Section 8(e) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). The IBT has also submitted materials for such review. In light of the importance of the questions raised by these submissions, they are answered in this decision format.[1]
The Local 688 materials were submitted with a letter which describes a "get out the vote" ("GOTV") plan. The letter, signed by Local 688's president, states:
Teamsters Local 688 will be using five (5) rank and file members during the week of October 15th through October 20th for the purpose of a "Get Out The Vote" I.B.T. campaign. This is a non-partisan project and Local 688 will be paying the members selected, forty (40) hours each lost time.
Those members selected will be required to sign a letter (copy attached) indicating the do's and don'ts involved. These members will be handbilling as many of our shops as practical and giving out "I voted" stickers along with the flyer attached, at times and days as recommended by the business representatives. Only those who have Union Leave provided in their collective bargaining agreement are being selected.
We are requesting that you review the material faxed to you and advise us if you can see any potential violation of the rules for the 2000-2001 International Officers Election. Any suggestions or advice would be greatly appreciated. We look forward to a timely written reply.
The proposed handbill is a single page document stating: "YOU HAVE A RIGHT TO VOTE … USE IT … MARK & MAIL YOUR BALLOT… If you do not receive a ballot by October 21 call 1-800-565-VOTE." This is the Election Administrator's toll-free number. An IBT logo also appears on the handbill.
The "do's and don'ts" sheet says that, in light of the fact that local union funds may not be used to "endorse or denounce any candidate or slate for IBT office and the fact that Local 688 is reimbursing me for lost time to encourage Teamster members to vote in the IBT election, I agree to the following rules:"
1. I will not in any fashion endorse or denounce any candidate or slate for IBT office while handbilling. This includes:
a) Wearing IBT campaign buttons, pins, signs, shirts, stickers, etc. while handbilling.
b) My verbal opinion of any candidate or slate while handbilling even if asked.
2. My sole purpose in handbilling is to encourage fellow Teamsters to participate in the democratic process by marking and mailing their ballot in a timely fashion.
3. I have been encouraged to wear or display a badge, jacket, shirt or button that identifies me as a Teamsters member only.
4. I realize that to violate these instructions could constitute a violation of the Rules for the 2000-2001 IBT International Officers Election.
5. I will be reimbursed for forty (40) hours pay at my regular hourly rate for forty hours of handbilling (including travel and meal breaks).
6. I will be reimbursed for meals and fuel with receipts provided to Local 688.
7. I realize that the above rules do not apply to my personal time, but to the hours of _______ to _______ on October ____ to October ______ (Five Days, Eight hour days)
The form is to be signed and dated by each participant.
The IBT submission is a handbill that the International Union represents is to be provided by it to local unions. The IBT will inform locals that the GOTV flyer is available. Then, according to the IBT, "[I]f the local chooses, and using the [IBT] communications department as a conduit, it can contract with the printer and have copies made or the local can make copies from the original sent to them. From there, distribution will be up to the local's officers and staff." The flyer states: "2001 Teamsters Election … 'Nobody will ever deprive the … people of the right to vote except the … people themselves - and the only way they could do this is by not voting.' Franklin D. Roosevelt … VOTE! … Your right. Your Responsibility. Ballots Mailed October 9, 2001. Ballots Counted November 13, 2001."
Analysis
We have no objection to the content of the IBT and Local 688 GOTV handbills/flyers. They neutrally set out the right to vote, information concerning the timing of events in the voting process, and related matters. Further, we recognize that the union has a legitimate institutional interest in increasing voter turnout. See Candidate Forums, 2001 EAD 428 (August 22, 2001), aff'd, 01 EAM 77 (September 25, 2001). The tone of the flyers is consistent with this legitimate interest, and is appropriate even though we also recognize that even non-partisan GOTV campaigns may serve to advance the candidacy of incumbent candidates.
Our analysis of the submitted materials does not end there, however. Instead, we conclude that the manner in which these materials are to be distributed has a bearing on the propriety of their use. We explain our reasoning and our conclusions concerning these matters in what follows.
Get out the vote campaigns may take many forms. Overwhelmingly, they are a partisan device employed by candidates or political parties to increase the turnout of voters or segments of the electorate thought to support the sponsor of the GOTV campaign, yet needing encouragement to turn out to vote. While truly non-partisan GOTV efforts such as that of the League of Women Voters, are undertaken and, as in the case of that group, well-known, they pale in comparison to partisan GOTV efforts of candidates and political parties. Nor are GOTV efforts limited to areas where what has been traditionally referred to as "machine" politics can be said to predominate. Instead, GOTV efforts are a commonplace of political life in modern America.
Since direct election of International Union officers is the exception rather than the rule in the North American trade union movement, that movement has less experience with GOTV efforts in general, whether they be of the non-partisan or the much more frequent partisan variety. Simply, when International officers are elected by convention attendees, turnout is almost always nearly unanimous. Those attending the convention are there, away from home and their everyday lives, for the express purpose of voting.
That being said, it is important to note that the 1996 IBT International officer election witnessed substantial GOTV efforts by both the Carey and Hoffa campaigns, as reflected in Cheatem, Post27 (August 21, 1997). It is also important to note that these efforts, with the exception of those illegitimate activities that were ultimately held to justify the disqualification of candidate Carey, were not funded with IBT resources. The improper efforts of the Carey campaign do carry with them a lesson about GOTV efforts, namely their perceived importance to partisan campaigns, a perception that led in the case of the Carey campaign to its serious and substantial violations of the election rules.
The Local 688 get out the vote campaign is styled as a non-partisan effort, and is accompanied by guidelines designed to assure that it remains so. That, however, is insufficient in our view to justify the publication program that Local 688 seeks to have sanctioned. Instead, we find that the danger of partisan targeting of the GOTV campaign precludes its approval in the form requested.
There are several reasons for this conclusion. First, the targeted audience for the GOTV effort is left to the discretion of the local's business representatives. To approve a union-funded GOTV effort that has the potential for less than all of a local union's members to be targeted creates the potential for abuse, since selection of those targeted may be based on partisan reasons. This is particularly true when one recognizes, as one must, that most local union officials are partisans in the current election; they have taken sides, as they have the absolute right to do. See Article VII, Section 11(b).
Moreover, the local's officers will select those who work on the GOTV effort, and for the above reasons there is also the possibility that partisan motivation may inform their selection.
In reaching this conclusion, we take notice of the fact that in this International officer election campaign, the bulk of local union officers support the slate led by the IBT's incumbent General President. This fact creates an increased risk of partisan targeting of union-funded GOTV efforts that are characterized as non-partisan. This conclusion is bolstered by the conventional wisdom that in this election increased voter turnout will favor the candidacy of the incumbent General President.
This risk must be avoided, for the danger is that if facially non-partisan union-funded GOTV efforts are targeted or otherwise used for partisan reasons, the propriety of the International officer election may be called into question. In our view, it is important that we avoid allowing GOTV efforts that create the possibility for such abuse.
This does not mean that all GOTV efforts are impermissible; there are substantial and legitimate reasons why such efforts should be undertaken. And, there are also other union-funded GOTV efforts that do not raise the danger of partisan abuse. For example, a mailing of GOTV flyers to the entire membership of a local union, or the simultaneous posting of GOTV flyers on all local union bulletin boards would be proper. In fact, such efforts have already been approved by this office, as exemplified by the GOTV ads in the most recent issue of the IBT's general circulation magazine. The touchstone for validity of a union-funded GOTV effort is that it is circulated to the membership of the entire union entity, in a manner that does not create the possibility of targeting, which may be motivated by unspoken partisan reasons.[2]
For this reason, we can not approve the Local 688 program as submitted and we can also not approve the circulation of the IBT flyers as local union officers see fit. While the leaflets' content is appropriate, we cannot sanction distribution schemes that may coincide with targeted distribution by local unions. The IBT leaflets may, however, be included by local unions in their generally distributed publications or posted by them simultaneously on all of their bulletin boards. All this assumes that the IBT does not differentiate among local unions and offers all an equal opportunity to distribute its leaflets among local union members in a manner consistent with this decision.
Finally, we cannot approve the "I voted" stickers suggested by Local 688. IBT members have the right to keep their voting conduct secret, and to do so without fear of any possible reprisal that they may believe will stem from such self-identification. Those who choose not to accept and/or wear an "I voted" sticker will, by such refusal, be forced to identify their electoral conduct. I find that this impermissibly infringes on the electoral rights of IBT members. Local 688 and the IBT are ordered to comply with the directives stated herein. Our office is available to assist in such compliance.
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 15th 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 472
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
Hoffa Unity Slate
Todd Thompson
209 Pennsylvania Ave. SE
Washington, DC 20003
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, TX 75207
Matt Ginsburg
30 Third Avenue
Brooklyn, NY 11217
Fax: 718.875.4631
IBT Local 688
300South Grand Blvd.
St. Louis, MO 63103
Brian Rainville
International Brotherhood of Teamsters
25 Louisiana Ave NW
Washington, DC 20001
[1] The determinations herein do not preclude post-publication protests under Article XIII of the Rules.
[2] Even a union-wide distribution may be improperly targeted if the timing of the distribution is uneven, especially in the days leading up to and after the mailing of ballots.