ELECTION APPEALS MASTER
IN RE:
J.D. JACKSON and MATT TRUPIANO, Protestors.
06 Elec. App. 036 (KC)
ORDER
This matter is an appeal from the Election Supervisor's decision 2006 ESD 124 issued April 17, 2006.
A hearing was held before me on May 3, 2006. The following persons were heard by way of teleconference: Jeffrey J. Ellison, Esq. and Steven Newmark on behalf of the Election Supervisor, Matthew Broderick and Robert M. Baptiste, Esq. on behalf of Local Union 299, Barbara Harvey, Esq. on behalf of J.D. Jackson and Matt Trupiano, David Hoffa, Esq. on behalf of the Hoffa Slate 2006, Joel Dunn for the J.D. Jackson Slate and J.D. Jackson.
The protesters assert that Mike Gluba, a candidate for delegate in Local 299 duped two members of the local into posing with him for a photograph at their Hertz workplace during their work time. The photo subsequently appeared in a campaign flyer produced and circulated by the political slate of which Gluba is a member.
The Election Supervisor investigated and concluded that the two Local 299 members were in fact mislead by Gluba into thinking that the photo would appear in a routine newsletter and not a campaign flyer.
The protesters argue that the deceptive conduct of Gluba uncovered by the Election Supervisor's investigation establishes a violation of the Election Rules, in that a political endorsement by IBT members was procured through deception. The Election Supervisor disagrees, saying that the content of campaign literature is generally beyond regulation under the Rules. He cites and principally relies upon his decision in Sanford, 2006 ESD 142 (April 3, 2006).
In his preliminary submission on appeal, the Election Supervisor disagrees that the use, placement of and caption to the photograph constitute a political endorsement by those whose images are captured in the photograph. He notes that the photographed members Riethmiller and Jefferson are not quoted or identified explicitly as Gluba Slate supporters, that the photograph itself contains no political paraphernalia or sloganeering, and that the caption, "Hertz members ratify best contract ever" refers to union business only.
He further argues, less persuasively, that "campaign flyers of labor leaders often include photos depicting them in traditional 'labor' settings such as picket lines or demonstrations. Nothing in the Rules requires the candidate to secure the permission of those who are shown in the photo with that candidate before using the photo in campaign literature." Election Supervisor's Preliminary Submission dated may 2, 2006 at 2.
This analogy is hardly apposite here. Purely random faces in crowd scenes are a far cry from staged photo ops where non-partisan neutrals induced onto that stage are duped into believing that they are not thereby being conscripted into the ranks of a union politician's campaign foot soldiers.
That being said, the problem of electoral dirty tricks has bedeviled lawmakers and commentators in America for almost as long as the Republic has existed, beginning in the notorious election of 1800 between Jefferson and Adams. In our own day, air-brushed photographs, doctored records, "truth squads" to disrupt campaign rallies, the jamming of telephone solicitation networks and the false source designation of odious campaign flyers have disfigured and besmirched the integrity of federal, state and local elections. The reaction of campaign regulatory bodies, thoughtful observers and, most importantly, the Courts has almost uniformly been frustration, disgust and laisez-faire, in deference to the priceless institutional asset of untrammeled electoral campaign speech, and the deeply embedded constitutional values that it serves.
Ms. Harvey takes a characteristically focused and intelligent approach. She notes the Election Supervisor's concession in his decision in this matter at 2 that the Election Rules contain an "implicit guarantee" to IBT members of a right to refrain from participating in election campaigns if they so choose. The central basis for this right, however, is the plain prohibition preventing the coercion of members to participate in union politics if they choose not to involve themselves. There is no coercion or intimidation found here.
Ms. Harvey relies on three previous cases: Waldron, 2001 EAD 195 (February 27, 2001); Chentnik, P182 (October 31, 1995); and Tobin, P862 (August 21, 1996). The three cited rulings are in fact vandalism cases. They do not directly address the classic regulation of campaign literature content, and the deep-seated disinclination to regulate it in America, generally, and under our Election Rules, specifically.
Accordingly, the decision of the Election Supervisor is in all respects affirmed.
SO ORDERED:
/s/ ____________________
Kenneth Conboy
Election Appeals Master
Dated: May 11, 2006