Protest Decisions

IN RE: ASHLEY MCNEELY,
Protest Decision 2001 EAD 485
Issued: October 2, 2001
OEA Case No. PR092811MW

(See also Election Appeals Master decision 01 EAM 97)

Ashley McNeely, a member of Local Union 2000, 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"). She alleges that the September issue of the IBT's publication The Teamster provides improper support for candidate James P. Hoffa and the Hoffa Unity slate (the "Hoffa slate") in violation of Article VII, Section 8 of the Rules.

Election Administrator representative Lois Tuttle investigated the protest.

Findings of Fact

The full issue of the September 2001 issue of The Teamster was mailed via third class mail to members early in September 2001.[1] On August 10, 2001, a draft of the issue was the subject of a Determination of Prohibited Campaigning in Submitted Publication by the Election Administrator. After the changes required by the August 10 determination were made to the issue, a revised proof of the issue was approved by the Election Administrator on August 16, 2001.

The protestor, through counsel, alleges that the issue improperly provides support to candidate Hoffa and his slate in several ways. First, it is claimed that the issue "features an unusually pronounced focus on James Hoffa," including seven photographs of Hoffa, two single page articles by him, and quotations from him in two other articles. Second, it is alleged that the coverage of Hoffa is significantly more expansive than that appearing in prior issues of the magazine since April 2001. Third, it is alleged that the coverage of Hoffa' election opponent, Tom Leedham, is sparse by comparison. Fourth, it is alleged that portions of the Hoffa slate slogan "unity, pride, strength" appear in the publication. The protestor also argues that the timing of the issue, close to the date for mailing of ballots, makes the alleged violations more apparent.

The issue is fifty-two pages in length. The first twenty-three pages of the issue (including the cover and the page that follows) are devoted to the IBT convention. Next are a one-page notice of presidential debate by the Election Administrator and an additional one-page Election Administrator notice that the issue contains campaign battle pages. Twenty-two battle pages follow, as well as a two-page report from the Independent Review Board and two one-page notices of election in English and Spanish. The back cover of the magazine states in large letters "Your Right Your Responsibility 2001 Teamster Election," followed by the IBT logo. The protest focuses on the first twenty-three pages of the issue.

The cover contains a montage of convention pictures, one of which has General President Hoffa and others on the convention podium. The page following is a letter to General President Hoffa concerning the Overnite labor dispute, a matter of importance that has frequently been covered in prior issues of the publication. The next page is the General President's one-page column, which has appeared in prior issues of the publication. It speaks of the accomplishments of the convention, including constitutional amendments on union democracy and direct election of leadership, the Canadian segment of the IBT, and matters relating to the elimination of corruption and financial reform.

Thereafter, what appears is a more or less chronologically ordered, day by day reporting of events leading up to and at the convention, including:

	convention preparation;
	election of delegates;
	convention committees;
	General President's keynote speech;
	features of delegates speaking to the convention;
	political action and other resolutions;
	speeches by political figures to the convention;
	collective bargaining campaigns;
	Canadian unity constitutional amendments;
	United Parcel Service contract resolution;
	union democracy constitutional amendments;
	portions of General Secretary-Treasurer Keegel's report on union finances;
	the state of the union's strike fund;
	international trade issues;
	nominees for International office declared elected.

In addition to the picture of General President Hoffa on the cover of the issue, his picture appears as part of the pages containing his column and his keynote address, two different pages reporting on convention resolutions, and a page reporting on a convention-closing rendition of the labor hymn Solidarity Forever.

General Secretary-Treasurer Keegel's picture is featured twice: once on the page containing his financial report and another time as part of a long shot of the convention floor in which Keegel appears on the overhead screen behind the podium. He can also be seen on the podium photos featuring Hoffa on the magazine cover, numbered page one, and on the closing of the convention page.

General President candidate Leedham is pictured once in the magazine, but he is unidentified. In prior issues of the publication in April, June and August 2001, General President Hoffa's picture appears only once.

Neither Hoffa, Keegel nor Leedham are referred to in any of the issue's text as candidates for International office. That fact appears only in the battle pages and in the Election Administrator's debate notice. The activities of General President Hoffa and General Secretary-Treasurer Keegel while conducting union business at the convention are reported in a number of articles in the issue.

McNeely also points out the following sentences in the issue which she claims are an improper use by the IBT of portions of the Hoffa campaign slogan "unity, pride, strength":

	"The 2001 Convention showed the world a new Teamsters union. A union that is at its most unified. A union that is poised to make the 21st century the workers' century. … Unified, we will continue to lead labor through the next century."
	"As a delegate representing Local 986 in Southern California, [Lisa] Mack was charged with bringing her members concerns to Las Vegas just as she had five years ago in Philadelphia. This time around, unity and accomplishment triumphed."
	"We leave this convention stronger and more united than ever, prepared to fight for our members and all working families."
	"During our trip to Las Vegas, I was overwhelmed with emotion and pride by the unity and strength which was demonstrated by the Teamsters Brotherhood at the National Convention."[2]

Analysis

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. Finally, Article XI, Section 1(b)(13) holds a candidate "strictly liable to insure that each contribution received is permitted under these Rules."

In reviewing union-financed communications for improper campaign content, we look to the tone, content and timing of the publication. Martin, P10 (August 17, 1995) (decision on remand), aff'd, 95 EAM 18 (October 2, 1995). We also consider the context in which the challenged communication appeared.

Martin recognizes that union officers and officials have a "right and responsibility to exercise the powers of their office and to advise and report to the membership on issues of general concern" (quoting Camarata v. International B'hd. of Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979), aff'd, 108 LRRM 2924 (D.C. Cir. 1981)). In addition, Martin holds that:

… an otherwise acceptable communication may be considered campaigning if it goes on to make a connection with the election or election process, if it involves excessive direct or indirect personal attacks on candidates, or, alternatively, involves lavish praise of candidates. Otherwise, legitimate coverage of the activities of a union official running for office may constitute campaigning if it is excessive.

A union publication may also violate the Rules when it adopts the campaign slogans of a candidate. In Martinez, 2001 EAD 384 (June 11, 2001), appeal withdrawn, ("Martinez I"), we held that the terms "unity," "pride," and "strength" had become so closely associated with the Hoffa campaign that their use in union-financed publications and communications during the electoral period may constitute implicit endorsements of the Hoffa slate.

In Martinez, 2001 EAD 414 (July 27, 2001), aff'd 01 EAM 87 (August 17, 2001, corrected copy issued August 30, 2001) ("Martinez II"), we held that "given the pervasive use of the "unity" theme by the Hoffa slate, the permissible contexts in which the IBT may adopt the same slogan during the ongoing electoral campaign are sharply limited." The Election Appeals Master affirmed, writing:

The factual record in this case … indisputably establishes that the IBT repeatedly endorsed the candidacy of the Hoffa Slate by broadly and pervasively repeating the Hoffa Slate campaign slogan (as settled in Martinez I) in speeches, visuals and convention paraphernalia. Indeed, the inference is irresistible that this was planned and choreographed with precisely campaign benefits chiefly in mind.

We adhere to our previous Article VII, Section 8(e) determination that the September issue of The Teamster is consistent with the Rules. The entire issue reports on the substantial amount of union business that was conducted at the June 2001 IBT convention. The editorial decision of the IBT to report these matters fully to its members is entirely appropriate. And, since the convention was chaired and keynoted by the General President, and reported to by the General Secretary-Treasurer, it is not improper that their actions at the convention should be the subject of coverage.

This contrasts with a case such as Hoffa, P1053 (October 28, 1996), aff'd, 96 EAM 264 (November 8, 1996), where in the guise of reporting on the conduct of union business, a publication repeatedly praised an incumbent officer standing for election. There, the "coverage of [the incumbent] was not simply to report on events in which [he] was a participant or speaker. Rather, the coverage was largely gratuitous in that it praised his experience and his general role in the affairs of the local union." The mentions of Hoffa and Keegel here do not fit this description. Rather, the September issue of The Teamster covers these two officers as they were involved in the legitimate and substantial business conducted at the convention, and does so in a straightforward reportorial fashion, without the excessive praise found in Hoffa.

Nor does the issue cross the line established in Martinez I and II by improperly using aspects of the Hoffa slate "unity, pride and strength" slogan. Here, the usages of portions of that slogan complained of by the protestor relate to the actions taken at the convention concerning matters of union business such as resolutions concerning contract campaigns and constitutional amendments.

The most persuasive argument made by the protestor concerns the lack of coverage of candidate Leedham's activities at the convention. As noted above, Leedham's face appears only once in the many convention pictures, but he is not identified. In fact, the nomination of candidates for contested International officer races is noted not at all in the IBT's journalism, intentionally, says the IBT. We further note that this was also the case with respect to the 1996 post-convention issue of the same publication.[3] Were it not for the battle pages, in other words, the September issue of The Teamster would contain no mention of existence of a race between General President candidates and their running mates. It is only the existence of the battle pages and the 1996 precedent that precluded us from finding the non-mention of Leedham improper.

For the foregoing reasons, we accordingly adhere to our Article VII, Section 8(e) determination and DENY the protest on the merits.

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 485

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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Barbara Harvey

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Betty Grdina

Yablonski, Both & Edelman

Suite 800

1140 Connecticut Ave. NW

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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

Ashley McNeely

P.O. Box 23224

Honolulu, HI 96823