Protest Decisions

IN RE: ERIC JENSEN,
Protest Decision 2001 EAD 479
Issued: September 28, 2001
OEA Case No. PR092111MW and PR092511MW

(See also Election Appeals Master decision 01 EAM 93)

Eric Jensen, a member of Local 320, 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") against the Hoffa Unity slate ("Hoffa slate") and Local Union 320. The protests allege the local improperly endorsed and used union resources to support the Hoffa slate with respect to a September 23, 2001 campaign rally held by the slate, and that the slate itself impermissibly accepted the promotion of that rally by several elected public officials, who appeared at the rally and, it is claimed, thereby provided an improper campaign contribution and endorsement to the slate.

Election Administrator representative Jeffrey Ellison investigated the protests.

Findings of Fact

The Hoffa slate held a campaign rally at the Minneapolis Convention Center on Sunday, September 23, 2001. The rally was advertised in a number of ways, including by flyer mailed to all stewards of Local 320. The flyer read as follows:

Dear Local 320 Stewards:

As the elected officials and business agents of Local 320, we are writing to personally invite you to a very special event.

The President of our Union, Jim Hoffa, is coming to Minnesota for a (post-Vikings game) gala celebration at the Minneapolis Convention Center from 4 - 6 pm on Sunday, September 23. We want you to meet him and hear his message of unity, pride and strength for the Teamsters!

Joining us that day for the Unity 2001 campaign rally will be both U.S. Senators Dayton and Wellstone, other politicians and hundreds of our Teamster sisters and brothers. We want to pack the place! The $5 admission is simply to cover the cost of the food and pop we will provide. Kids are free, so bring the family.

Be a part of history, part of the fun, and part of Teamster solidarity. Join us!

Get your tickets in advance for yourself and your coworkers. Contact any one of us and we'll make arrangement to get them to you.

Proud to be Teamsters,

[listed are names of Local 320 elected officers and business agents]

The reverse of the flyer was flanked on each margin by the IBT horses-and-wheel logo and read:

Join Teamsters President Jim

HOFFA

With

Tom Keegel

U.S. Senator Paul Wellstone U.S. Senator Mark Dayton

Congressman Martin Sabo Congresswoman Betty McCollum

Minneapolis Mayor Sharon Sayles Belton

And Hundreds and Hundreds of Teamsters

For a

UNITY RALLY

The remainder of the flyer included information about the date, time, location and cost of the event, a fine-print notice identifying who may make financial contributions to the campaign and how much they may contribute, another fine-print notice stating that no union funds were used to print or produce the flyer, a footnote indicating that Hoffa's title as "Teamsters President" was "used for identification purposes only," and an exhortation to "Vote Hoffa Unity Slate 2001."

The Local 320 steward flyer was not written, reproduced or mailed using union resources. Rather, officers of Local 320 used their own personal funds to do so. Responses to the flyer, according to these officer witnesses, came to the homes of the local's officers and agents.

With respect to the public officials, all identified in the flyer attended the event, except U.S. Representative Betty McCollum. However, the slate, through its counsel, asserts that no public official made any statements at the rally directly or indirectly endorsing Hoffa or the slate. There is no contrary evidence.

The Minneapolis Star-Tribune reported on the rally. Under a headline of "DFLers[1] want protection for laid-off employees, not just airlines," the article recounted the pledges of the elected officials to pursue benefits for airline employees furloughed in the wake of this month's terrorist attacks. The article's third sentence stated that the politicians spoke at "a Teamsters' rally for the reelection of union president James P. Hoffa, Jr."

The Hoffa slate estimates the attendance at "500 to 600 people." The Star Tribune reported "300 supporters" attended.

Analysis

Alleged improper endorsement by local union. Article VII, Section 11(b) of the Rules declares that an "endorsement of a candidate may be made by a Union officer or employee, but solely in his/her individual capacity." Further, "an Executive Board of a Local Union as such may not endorse or otherwise advance a candidacy, even if all members agree on the endorsement or candidacy."

The flyer mailed to all stewards of Local 320 violates this provision because it declares that "the elected officers and business agents" of the local invite its stewards to join them in supporting the Hoffa slate. Accordingly, we GRANT the protest allegation.

Alleged use of union resources to promote the rally. We DENY this protest allegation, as there is insufficient evidence indicating that the rally was promoted through the use of union resources. We note, however, the pendency of protest case number PR092412MW, in which it is alleged that officials of Local 320 campaigned for the Hoffa slate during a steward seminar held on September 22, 2001. Our investigation of that protest remains open.

Alleged improper contributions by public officials. Article XI, Section 1(b)(2) states:

No employer may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is [to] influence, positively or negatively, the election of a candidate. No candidate may accept or use any such contribution. These prohibitions are not limited to employers that have contracts with the Union; they extend to every employer, regardless of the nature of the business and include, but are not limited to, any political action organization that employs any staff; any non-profit organization, such as a church or civic group that employs any staff; and any law firm or professional organization that employs any staff. These prohibitions extend beyond strictly monetary contributions made by an employer and include contributions or use of employer stationery, equipment, facilities and personnel.

Article XI, Section 1(b)(4) states:

No candidate [or] slate …, nor anyone acting on their behalf, may solicit or accept financial support, or any other direct or indirect support of any kind, from any nonmember, except as permitted in subparagraphs (5) and (9) below.[2]

We GRANT this protest allegation as well. The use of elected officials' names and presence at a campaign event constitutes a prohibited contribution because the officials are both employers and nonmembers under the Rules.

In Committee to Elect Ron Carey, P651 (August 14, 1991), aff'd, 91 EAM 183 (September 17, 1991), the Election Officer held that "use of an individual's name in a fundraising solicitation is something of value." In that case, prominent Los Angeles entrepreneurs and personalities[3] allowed use of their names on an invitation for a fundraiser organized by a three-person Committee of Friends of Ron Carey. To remedy the Rules violation, the Election Officer ordered disgorgement of the funds raised at the event. Affirming the decision, the Independent Administrator wrote:

Stone and Anagnos are both prominent in the Los Angeles community and their names carry weight. Individuals may be more willing to contribute to a candidate when solicited to do so by a prominent personality. The Committee of Friends clearly intended that the use of Stone's and Anagnos' names would facilitate their fund-raising efforts. Stated another way, Stone's and Anagnos' lending of their names was intended "to influence the election of" Ron Carey. Given that Stone and Anagnos are employers, their contributions, i.e., the lending of their names, violated the Election Rules.

***

What the Election Officer's ruling makes clear is that the lending of one's name, under these circumstances, is the contribution of something of value designed to influence the election. … It is the contribution of the name, and the notoriety and reputation that go along with the name, that are the things of value being contributed here.

The contribution of name in Committee to Elect was held to be improper because the contributors were employers under the Rules. Since the time of that decision, the Rules have been amended to also prohibit contributions by nonmembers.

Each of the elected officials whose names appeared on the invitation and who attended the event is an "employer" under the Rules. That term includes "governmental … employers and all persons acting as agents of an employer in relation to an employee." Definitions, ¶17. The senators and representatives who attended are expressly deemed employers under federal law. 2 U.S.C. §1301(9)(A).

Moreover, each elected official is a nonmember of the IBT.

As in Committee to Elect, the Hoffa slate here used the "notoriety and reputation" of the elected officials on the flyer and at the event itself as a thing of value to boost attendance and to solicit electoral and financial support for Hoffa and the slate. The elected officials' attendance at the event also produced media coverage that would not have occurred in their absence. Readers of the Star Tribune learned that Senators Wellstone and Dayton and Representative Sabo spoke at a "Teamsters' rally for the reelection" of Hoffa, thus disseminating the electoral value of their notoriety to a broad audience.

Although the slate contends the event was not a fundraiser, admission was charged and language on the flyer set out the guidelines for permissible contributions under the Rules.

In sum, we find that use of the names and presence of the elected officials at a campaign rally had the purpose, object and foreseeable effect of promoting the candidacy of Hoffa and the slate. Because these contributions came from individuals who are both employers and nonmembers, their receipt violates the Rules.[4]

Article XI, Section 1(b)(13) holds candidates "strictly liable to insure that each contribution received is permitted under these Rules." Section 1(b)(14) declares that "[i]gnorance by a candidate … that … employer funds or other resources were used to promote a candidacy shall not constitute a defense to an allegation of a violation of these Rules." Here, Hoffa slate operatives clearly intended that the names and presence of elected officials would encourage attendance at a campaign event not only among members but also among the media. It is obvious the elected officials were both employers and nonmembers and thus prohibited from making contributions to candidates. The slate is, therefore, strictly liable for the improper receipt of the "things of value" the officials contributed.

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.

To remedy Local 320's endorsement violation, we order that the local's principal officer sign and that the local mail the notice attached as Exhibit A to all recipients of the "Dear Local 320 Stewards" flyer advertising the Hoffa slate campaign event. This mailing must be completed by first class mail by October 3, 2001.

To remedy the Hoffa slate's improper receipt of contributions from employers and nonmembers, we order the same remedy imposed in Committee to Elect. We direct the Hoffa slate to disgorge the financial proceeds of the September 23 event by returning all contributions received to the persons contributing them. No deduction shall be taken to defray the costs of the event. Proof of the disgorgement of these proceeds shall be provided to the Election Administrator by October 8, 2001.

An additional remedy is required because the contribution of name and presence by elected officials was reported in the region's principal newspaper. Accordingly, we order that the Hoffa slate pay the full costs of a one-page mailing by the Leedham slate to all IBT members in the following Minnesota-based local unions: 4, 120, 160, 221, 289, 320, 471, 503, 638, 792, 970, 974, and 1145. In addition, we order the mailing be sent to the Minnesota members of Local 2000. We order this remedy because the Star Tribune has wide circulation[5] and the officials' appearance at the election event was reported in an article about benefits for laid-off Teamsters, an issue Teamster members otherwise would be interested in. All local unions identified above are headquartered in Minneapolis, St. Paul, Rochester, or Bloomington, well within the area of broadest circulation of the Star Tribune. We do not extend this remedy to the members of Local 346, headquartered in Duluth, or the Minnesota members of Local 116, based in Fargo, North Dakota, across the state line from Moorhead, Minnesota, because these communities' distance from the Twin Cities (Duluth: approximately 140 miles; Fargo: approximately 230 miles) render too small the likelihood that members of these locals may have seen the Star Tribune article. The Hoffa slate's funding for this mailing shall be advanced by October 3, 2001, in order to permit the completion of a first class mailing of the Leedham material by October 5, 2001.

We have considered but rejected as an alternative to the mailing ordered above a Hoffa slate-funded display advertisement in the Star Tribune for the Leedham campaign. Such a remedy falls well short of leveling the playing field. Teamster members who read the Star Tribune's original article were drawn to it because it concerned an issue of importance to them - the benefits the government might provide laid-off members of their union. Such a subject is more attractive and will likely draw more readers than a display ad.

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 479

NOTICE TO MEMBERS OF IBT LOCAL 320

The Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") permit endorsement of International officer candidates by union officers or employees solely in their individual capacity, and do not permit such endorsements by the union as an entity.

The Election Administrator for the International Brotherhood of Teamsters has found that a flyer mailed to all stewards of Local 320 violated this provision because it declared the support of "the elected officers and business agents" of Local 320 for the Hoffa Unity slate.

The Election Administrator will not permit such violations of the Rules. He has ordered relief for the violation of the Rules that occurred by the mailing of the above-referenced flyer. Such relief includes the mailing of this notice to all who received the flyer.

Local 320 as an entity, and its officers and employees in their capacities as such, do not endorse the candidacy of any person for International office.

Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with William A. Wertheimer, Jr., Office of the Election Administrator, 727 Fifteenth Street, NW, Washington DC 20005, telephone 800-565-VOTE, fax (202) 454-1501.

_____________________________

Susan E. Mauren

Secretary-Treasurer

IBT Local 320

This is an official notice ordered by the Election Administrator for the International Brotherhood of Teamsters.

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

Matt Ginsburg

30 Third Avenue

Brooklyn, NY 11271

 

James L. Hicks, Jr., P.C.

Suite 1100

2777 N. Stemmons Freeway

Dallas, TX 75207

Eric Jensen

4345 11^th Avenue

Minneapolis, MN 55407

IBT Local 320

3001 University Avenue, S.E.

Suite 500

Minneapolis, MN 55414

IBT Local 4

3001 University Avenue, S.E.

Suite 506B

Minneapolis, MN 55414

IBT Local 120

2635 University Ave. West

Suite 120

St. Paul, MN 55114

IBT Local 160

11 - 4^th Street SE

Rochester, MN 55904

IBT Local 221

3001 University Avenue, S.E.

Minneapolis, MN 55414

IBT Local 289

3001 University Avenue, S.E.

Minneapolis, MN 55414

IBT Local 471

3001 University Avenue, S.E.

Minneapolis, MN 55414

IBT Local 503

1721 Carroll Ave.

St. Paul, MN 55104

IBT Local 638

3001 University Avenue, S.E.

Minneapolis, MN 55414

IBT Local 792

3001 University Avenue, S.E.

Minneapolis, MN 55414

IBT Local 970

3001 University Avenue, S.E.

Minneapolis, MN 55414

IBT Local 974

3001 University Avenue, S.E.

Minneapolis, MN 55414

IBT Local 1145

2635 University Ave. West

Suite 110

St. Paul, MN 55114

IBT Local 2000

2850 Metro Dr.

Suite 225

Bloomington, MN 55425

Jeffrey Ellison

65 Cadillac Square

Suite 3727

Detroit, MI 48226