IN RE: STEFAN OSTRACH and HOFFA 2006, Protestors.
Protest Decision 2006 ESD 304
Issued: June 24, 2006
OES Case No. P-06-080-012406-HQ & P-06-096-012606-HQ
Stefan Ostrach, a member of Local Union 206 and treasurer of the Tom Leedham Strong Contracts Good Pensions slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that the Hoffa 2006 so-called "battle pages" published in the February 2006 edition of Teamster and displayed on the Hoffa 2006 website contained material that constituted improper union and employer contributions to the Hoffa campaign.
Hoffa 2006 filed a pre-election protest alleged that the Leedham campaign's battle pages in the same edition of Teamster included material that constituted improper union and employer contributions to the Leedham campaign.
We docketed the Ostrach protest as Case No. P-06-080-012406-HQ and the Hoffa 2006 protest as P-06-096-012606-HQ. Because the protests alleged similar violations by the competing slates in their battle pages, we consolidated the cases for investigation and decision.
Election Supervisor representative Jeffrey Ellison investigated these protests.
Findings of Fact
Article VII, Section 10 of the Rules grants to "each accredited candidate … the right to have campaign literature published in the … February 2006 issue[] of the IBT Magazines." With these protests, each slate of accredited candidates challenged the material published by the opposing slate.
Each accredited candidate was allotted space in the February 2006 Teamster magazine according to the Rules formula (Article VII, Section 10(a)(1)), and the accredited candidates on each slate chose to pool their space (Article VII, Section 10(a)(2)). The Hoffa slate, with 20 accredited candidates, was allotted 10¼ pages. The Leedham slate listed 9 accredited candidates; it was allotted 4¾ pages.
The literature printed in the February 2006 Teamster was clearly marked and set off from the rest of the magazine. The top right corner of the magazine cover displayed a tease for "Candidate Campaign Literature for 2006 Election: Page 21." The campaign material section began with a notice to all Teamsters from the Election Supervisor stating that:
The ideas expressed in these materials are solely those of the accredited candidates. They do not reflect, in any way, the views of the International Brotherhood of Teamsters, any affiliated Unions, nor the Election Supervisor. Neither the IBT or the Election Supervisor altered any of these candidate materials. They come directly from the accredited candidates to the Teamster membership.
The order of the campaign materials was determined by lot: the Leedham slate literature came first after the Election Supervisor's announcement. We will discuss the literature, however, according to the sequence in which the protests were filed.
The Hoffa Campaign's Battle Pages.
The Ostrach protest alleged Rules violations with respect to the first five pages of the Hoffa slate's battle pages. The first page carried a heading of "Hoffa Delivers!" above a color photo depicting General President Hoffa and 22 other individuals facing the viewer and giving an enthusiastic "thumbs up." Beneath the photo was a 3-sentence description from the Hoffa slate of positive changes that have occurred during the previous 5 years. The signature of James P. Hoffa was beneath the quote.
The second page of the Hoffa pages carried the headline, "We Are Growing Into a More Powerful Union." Beneath the headline was a photo depicting General President Hoffa with some 35 individuals standing on and in front of a diesel-electric locomotive and a semi truck. The photo bore a headline: "Railroad Ties: BMWE Merger Adds 31,000 Members." Text next to the photo presented the Hoffa slate's position on the IBT's organizing efforts.
The third battle page featured the headline, "Hoffa Created a Real Strike Fund" above a photo that depicted a man with a microphone standing in front of several individuals with picket signs declaring that IBT Local Union 703 was on strike. The accompanying text presented the Hoffa slate's position on improvement in the IBT's strike fund.
The fourth page announced, "Hoffa and the Teamsters Have Delivered Strong Contracts for Members." A photo showed 100 or more individuals in front of or on freight rigs of Yellow, USF, ABF, and Roadway. Text presented the Hoffa slate's position on improvements in the current National Master Freight Agreement, including a contract worth $700 million more than the last and restoration of a provision that permits strikes over deadlocked grievances.
The fifth battle page was headlined, "UPS Director Ken Hall and Jim Hoffa Fight for UPS Teamsters." A photo showed Hall and Hoffa with 7 individuals, standing in a parking lot. Text presented the Hoffa slate's position on the benefits of the recent UPS contract.
The sixth, seventh, and eighth battle pages carried Hoffa slate criticisms of Leedham, using words, pictures, and cartoons. The ninth battle page showed pictures of candidates under the logo "Hoffa 2006 Slate" with the name, local union affiliation, and International officer position sought under each photograph. The last one-quarter page was a form soliciting name and address information from those interested in helping the Hoffa slate.
Ostrach protested that the first five pages of the Hoffa campaign's battle pages used union resources in violation of the Rules. In particular, he alleged that if the photographs described above "were not specifically commissioned and paid for by the Hoffa Campaign they constitute illegal IBT contributions to the Hoffa Campaign." He alleged further that the photo on the second battle page, with the locomotive, was a reprint of an entire page from a previous issue of Teamster magazine. Ostrach contended that, "[w]hile it has previously been determined that campaigns may purchase photographs that have been published in the magazine, the use of an entire page, including the captions and headlines, creates the impression of an endorsement of the campaign by the IBT." Ostrach's final allegation of improper use of union resources asserted that the image of picketing individuals on the Hoffa campaign's third battle page "appears to have been taken at an official Local 703 event by an IBT or Local 703 employee or contractor, which would be an improper union contribution to the Hoffa campaign." Further, he alleged that, "[i]f this event was staged on union property, that would be an improper contribution to the Hoffa campaign by Local 703."
Ostrach also alleged that the Hoffa battle pages contained improper employer contributions. Thus, he asserted that the vehicles shown in the photos on the second and fourth battle pages, and the freight haulers' logos displayed on the trucks on the fourth page, constituted employer contributions to the Hoffa campaign. Further, he claimed that the scenes depicted in the photos on the second, fourth, and fifth pages appeared to have taken place on employer premises. "Allowing use of employer premises for staging images promoting the Hoffa campaign is an employer contribution," the protest asserted.
The Leedham Campaign's Battle Pages.
The Hoffa campaign protested that the Leedham campaign's battle pages included improper union and employer contributions. The first page listed the Leedham campaign's platform and showed a photo of Leedham. It also listed the accredited members of the Leedham slate, their local union affiliation and current office, and the International officer position sought.
The second battle page asserted that Leedham will pursue strong contracts and that Hoffa has failed to do so, citing the UPS and NMFA contracts as examples. A photo of Dan Scott with 5 individuals wearing UPS uniforms accompanied the text that criticized the UPS contract.
The third page listed the Leedham campaign's platform to improve pensions.
The fourth battle page led with the headline, "Hoffa Promises A Lot In This Magazine, But What Has He Done For Working Teamsters?" The balance of the page compared "Hoffa Hype" with "Hoffa Reality." Beneath the "Hoffa Hype" heading were reproductions of article excerpts "Taken Directly from Teamster magazine." The excerpted materials cited that Hoffa promised to "bring workplace justice" to employees of Overnite, to clean up the union, to "negotiate a REAL 25 & out pension," and to prevent a dues increase. One of the photos was the complete cover of a previous edition of Teamster. Opposite each excerpt was text asserting that the purported promises had been broken.
The final Leedham battle page profiled 2 Leedham slate members who previously had supported Hoffa.
The Hoffa campaign protest alleged that the photo of Dan Scott on the second battle page "appears to be on UPS property, constituting an unlawful employer contribution to the Leedham Slate." Further, the Hoffa campaign alleged that the use of the Teamster cover on the fourth battle page was an improper union contribution, unless the Leedham campaign purchased the photo from the IBT. Finally, the protest asserted that identification of Leedham slate members by the titles they currently hold "give[s] members the impression that these local unions are endorsing Leedham and the Leedham Slate."
Investigation.
Investigation showed that the photos used by the Hoffa campaign on pages 2, 3 and 4 of its battle pages were included in some 60 photos the campaign purchased from the IBT commencing in October 2005. Invoices produced during the investigation showed that the IBT charged $150 per photo and that the charges were paid by check drawn on a campaign account. Each of the photos on the Hoffa campaign's first 4 battle pages had previously appeared in Teamster magazine.
Although not raised by the protest, the tenth page of the Hoffa campaign's battle pages displayed the official IBT photo portraits of each accredited candidate on the Hoffa slate. These too were purchased from the IBT by the campaign at $150.00 per photo.
Investigation showed that the photo on the first Hoffa battle page was purchased directly from a private photographer; the photo on the fifth battle page, depicting Ken Hall and James P. Hoffa with several other individuals, was owned by RL Communications ("RL"). RL is a paid consultant to the Hoffa campaign. According to the campaign, the photo was used in Hoffa battle pages in the previous International officer election.
By letter dated November 20, 2000, Patrick Szymanski, then IBT General Counsel, announced to Todd Thompson and Stefan Ostrach, respectively the campaign managers of the Hoffa and Leedham slates, that the IBT Communications Department "has implemented a uniform policy" that made "photographs that appear in Union publications … available to accredited candidates." The policy, dated November 9, 2000, stated that "the Communications Department will provide prints of photographs to any accredited candidate for International office." The policy set pricing based on the size of the print and detailed the process for ordering the photos.
By memo to Richard Mark dated September 29, 2005, Jeff Jones, coordinator of the IBT Communications Department, stated the following:
As the Teamsters Communications Department has done in previous elections, we feel it is necessary to provide photos to any candidate running for office in the upcoming IBT International Delegate and Officer Election.
We propose the arrangements continue as in previous elections, and are as follows: any candidate can purchase any photo that has previously been published by the International for the cost of $150.00. The purchasing campaign must provide the Communications Department one week in order to research, locate and deliver the image.
Please inform me as soon as possible if this arrangement is acceptable.
Paul Dever of our office responded to Jones the same date, September 29, to advise that Jones' proposal was approved. Jones emailed Dever the next day to inquire whether the IBT or the Election Supervisor would communicate the policy to the candidates. Dever responded by email on October 5 that "[t]he Election Supervisor's office has never been involved in that process. As long as photos are made available to all campaigns at equal cost, we will leave the process up to the IBT."
Written notice of the continuation of the IBT photo purchase policy was not disseminated to "all candidates" for International office until February 2, 2006, when it was emailed to "Teamster Campaign Coordinators."
As we noted in TDU & Hackett, 2005 ESD 2 (July 15, 2005), James P. Hoffa became a candidate for General President in late April or early May 2005. We certified Hoffa and C. Thomas Keegel as accredited candidates for International office on September 13, 2005.
Tom Leedham announced his candidacy for General President on October 31, 2005. We certified Leedham and 8 other candidates on his slate as accredited candidates for International office on December 30, 2005.
The Hoffa campaign made its first purchases under the IBT photo purchase policy on October 24, 2005. As of that date, James P. Hoffa and Thomas Keegel were the only accredited candidates for International office.
The copy deadline for submitting battle pages for the February issue of Teamster magazine was January 5, 2006. The Hoffa and Leedham campaigns met this deadline.
The IBT issued its written photo purchase policy on February 2, 2006, approximately one week after the instant protests were filed.
Analysis
These protests implicate several provisions of the Rules. Thus, Article XI, Sections 1(b)(2) and (3) prohibit employer and union contributions to any candidate and further prohibit any candidate from accepting such contributions. The provisions state the prohibitions broadly to include direct or indirect contributions of "anything of value," where "the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate."
Article VII, Section 12(c) excludes from these broadly phrased prohibitions the use of particular union resources where "the Union is reimbursed at fair market value for such assistance, and where all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance."
As noted above, Article VII, Section 10 creates a further exception to the prohibition on use of union resources. It permits accredited candidates the right to publish campaign material in particular issues of Teamster magazine at no charge. The provision, at subsection (c), declares that "[t]he Election Supervisor and the Union may not regulate or alter the content of any candidate's or slate's material, or disclose such content, prior to its publication."
We examine these protests against the Rules framework just described.
We find that the Hoffa campaign purchased the photos displayed on pages 2, 3 and 4 of its battle pages and the photo portraits of its slate members from the IBT. These purchases were made pursuant to IBT policy that made purchase of its photos available to all candidates at a price we deem to be fair market value.
Although the IBT did not disseminate written notice of the continuation of its photo purchase policy to all candidates until February 2006, we decline to find a violation of Article VII, Section 12(c) on the unique facts of this case. The IBT recognized its obligation under this provision, and the Communications Department coordinator, Jones, sought the approval of our office in September 2005 to continue the photo purchase policy it had used in previous elections. We approved. At the time of our approval, the only announced or accredited candidates were Hoffa and Keegel.
Although the IBT could properly have sent notice of the continuation of its photo purchase policy to Leedham following Leedham's October 31, 2005 announcement of candidacy or his slate's accreditation as candidates on December 30, 2005, we find that the IBT's failure to do so was obviated by its previous announcement, in September 2000, to the same campaign coordinators who serve in such capacities in the current election, that photos were available for purchase. Ostrach acknowledged in his protest that "it has previously been determined that campaigns may purchase photographs that have been published in the Teamster magazine." The protestor knew, therefore, that photographs were in fact available for purchase had the Leedham slate wanted any. The purpose of the written notice set forth in Article VII, Section 12(c) was therefore satisfied. Finally, we reject the contention that use of photos previously published in Teamster magazine creates any impression that the IBT endorsed the Hoffa slate. The battle pages appear in a special section of the magazine prefaced by a notice from the Election Supervisor explicitly stating that publication of the material should not be construed as an endorsement by the IBT or as anything other than statements by the candidates themselves. We therefore DENY the aspect of Ostrach's protest that alleged that the IBT improperly assisted the Hoffa campaign by providing it unequal access to IBT-owned photos or permitting use of those photos.
We further DENY the portion of Ostrach's protest that alleged that the photos on the first and fifth battle page violated the Rules. Investigation showed that one of these photos was purchased directly from the photographer; the other is owned by the Hoffa campaign's paid consultant, and its use was compensated.
We turn now to the allegations by the Hoffa campaign that the Leedham slate's battle pages included improper union contributions. The Hoffa campaign alleged that uncompensated use by the Leedham slate of various articles and a cover of Teamster magazine constituted prohibited union assistance to the Leedham campaign. We reject this allegation and DENY this aspect of the protest. As we concluded with respect to the Hoffa slate's use of images previously published in Teamster, this material was published in a special section of the magazine set off with an explicit disclaimer that the material did not constitute or reflect any views of the IBT. The context in which these images were used shows that the re-published materials were used to make an editorial point in support of the candidate sponsoring the literature, and were not an endorsement of the candidate or slate by the IBT. Under these circumstances, we hold that a reasonable reader could not conclude that the IBT supported the Leedham campaign by publishing in the Rules-mandated battle pages excerpts from articles and the magazine cover that the Leedham campaign used.
Both protests alleged that the depiction of employer assets in the opposing slate's battle pages constituted impermissible employer contributions to that slate. We DENY these allegations. The context of each depiction destroys any reasonable interpretation that an employer endorsed the candidate that used the image. Thus, the depiction of a locomotive and several trucks in the Hoffa battle pages is presented in a context that declares that the union has prevailed over or otherwise strengthened itself against employers. The depiction of freight trucks overrun with union members appears on a page that trumpets the National Master Freight Agreement as a significant benefit to employees and disadvantage to freight employers. The locomotive appears on a page where the merger between the IBT and the BMWE is celebrated as a force for labor against capital. Similarly, the Leedham photo depicting Dan Scott with UPS employees wearing their distinctive, brown UPS uniforms, which the Hoffa protest alleged memorializes a meeting that took place on employer property, does not convey a UPS endorsement of Leedham or Scott because the photo is accompanied by text that attacks the UPS contract and working conditions under it and promises broader protections and benefits for employees if Leedham is elected. Moreover, in both cases, the literature depicts people as Teamster members working in or around equipment used in their jobs, or wearing work uniforms. The Rules do not prohibit showing members in campaign literature in real - or even staged - work settings.
Finally, we DENY the Hoffa campaign's allegation that identification in the Leedham battle pages of Leedham slate members by the union positions they currently hold conveys the endorsement of those candidates by their local unions. We note in passing that each accredited candidate on the Hoffa slate is identified in the Hoffa battle pages by the local union to which he belongs. Such use of title or union affiliation does not constitute an impermissible union endorsement of a candidate. Jensen, 2006 ESD 204 (April 22, 2006), aff'd, 06 EAM 37 (May 12, 2006).
For the foregoing reasons, we DENY each protest in its entirety.
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 Supervisor 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
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 304
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com