IN RE: ALLEN BUNCH, Protestor.
Protest Decision 2006 ESD 305
Issued: June 24, 2006
OES Case No. P-05-041-112105-HQ
Allen Bunch, a member of Local Union 549, 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 "[c]andidates Hoffa and Keegel, as the two principal officers of the IBT, have abused their official union positions to identify the Hoffa-Keegel slate as the official IBT-endorsed slate."
The investigation of this protest centered on the campaign material of the Hoffa slate, as presented on its website, and compared the language and themes of that campaign material with the language and themes employed by the IBT, as appearing principally on the IBT's website.
Election Supervisor representatives Steven Newmark and Jeffrey Ellison investigated this protest.
Findings of Fact
The protest asserted that the Hoffa campaign's use on its website of the name "Hoffa-Keegel Unity Slate" and inclusion there of a photo of candidates Hoffa and Keegel purportedly taken at the 2005 IBT Unity conference together constituted improper use of a union resource - the IBT's "Unity" theme - for a campaign purpose.
IBT's use of "unity."
Investigation showed that, since at least 2001, the IBT has advanced "unity" as a thematic device in contract campaigns, organizing, and national politics. Since 2000, the IBT has sponsored an annual "Unity Conference" to tout the goals of the union and to organize support for them. "Unity" has been adopted as a theme for contract campaigns against employers and multi-employer associations. Thus, the United Parcel Service contract campaign that commenced in 2001 and continued through ratification of a new collective bargaining agreement in 2002 used the theme
Unity
Pride
Strength
The 2003 carhaul contract ratification effort took place as the culmination of an IBT-sponsored "Carhaul Unity 2003 Campaign." The 2002 contract campaign against Anheuser-Busch was commenced with a "Unity Day." "Freight Unity 2003" was the theme of the contract campaign for a successor National Master Freight Agreement.
In organizing the unorganized, "unity" is a prominent theme. Examples include a "unity day" event in October 2005 that emphasized organizing, and an effort to organize truck drivers at the Port of Miami ("Unity on the Waterfront").
In political organizing, the IBT has used "unity" to organize behind the election of national political leaders such as presidential candidate John Kerry (2004 Teamsters National Black Caucus meeting: "Celebrating Family Unity")
The IBT's ongoing effort to educate stewards and union activists concerning rights on the shop floor has centered on a theme to "Build Unity and Power."
The Hoffa campaign's use of "unity."
At the time the protest in this matter was filed, the Hoffa campaign used the term "unity" in its campaign material. Most of the material the Hoffa campaign has used is displayed on its website at www.hoffa2006.org. In addition to its home page, the website has a section detailing the biographies of candidates Hoffa and Keegel; a section entitled "Media Center" that includes news and press releases of interest to Teamsters ; a section titled "Elections" that lists important dates in the delegate and International officer elections; a "Volunteer" section that solicits volunteer assistance for the Hoffa campaign; a section titled "Hoffa Gear" where campaign merchandise may be purchased; and a "Campaign Material" section that features campaign flyers that may be downloaded.
While the term "unity" may be seen on the website, its use is infrequent. The home page is headed with the title "Hoffa 2006." Under the title "Welcome!" on the home page, a message from candidate Hoffa that includes "unity" reads as follows:
I have been proud to serve as the General President of the Teamsters Union for the past six years. I believe that under the leadership of the Hoffa-Keegel Unity Slate our union is stronger and more united than ever before. Our work is not done and we need your help.
This website will provide you all the resources you need to join me in campaigning to re-elect the Hoffa-Keegel Unity Slate. Together we will win a better future for Teamsters.
At the time the protest in this matter was filed, the website site identified the slate as the "Hoffa-Keegel Unity Slate." Subsequently, the site changed the identification of the slate to "Hoffa 2006." Three of the seven campaign flyers available to download identify the slate as the "Hoffa Unity Slate." Each of these three appears on "Hoffa 2006" letterhead and is in the form of an open letter to the Teamsters membership; two are dated December 2005 while the third carries a date of April 2006.
Aside from use of "unity" used occasionally in the title of the slate, the term is not used on the Hoffa 2006 website. The slate name most often appears as "Hoffa 2006."
The Hoffa campaign's website includes a photo of candidates Hoffa and Keegel, smiling with hands clasped and arms raised. The protest alleged that the photo was taken at the IBT-sponsored 2005 Unity Conference. Behind the candidates in the photo are visible 2 large block letters, gold in color with blue and white outlines, that read "TY." These letters correspond to the last 2 letter in "unity;" otherwise, neither the photo nor accompanying text indicates that the photo was taken at the Unity Conference or another IBT-sanctioned event. Investigation in Ostrach & Hoffa 2006, 2006 ESD 304 (June 23, 2006), showed that this photo was purchased by the Hoffa campaign from the IBT.
Analysis
The portion of the protest addressed in this ruling asserts that the Hoffa slate violated the Rules by adopting as a campaign slogan a theme that is closely identified with the union. Precedent shows that such conduct by a campaign can be a violation.
The precedents that guide our decision include Lopez, P242 (December 19, 1995), aff'd, 96 EAM 51 (January 8, 1996), where a local union was found to violate the Rules by implicitly endorsing the Carey candidacy by adopting Carey's campaign slogan, "Putting Members First," as the theme of the local union's newsletter. Rejecting the local union's argument that the phrase was "a generic trade union slogan which does not belong to any one individual or group," Election Officer Quindel found that use of the phrase in the local's publications constituted an endorsement of Carey, even though the use did not refer directly to the IBT election or Carey's candidacy.
In Dethrow, 2001 EAD 381 (June 4, 2001), the local union's use of the term "unity" in a newsletter article lauding the accomplishments of the Hoffa administration was held to constitute an improper endorsement of the Hoffa candidacy, where the Hoffa campaign had already adopted "unity" as the principal theme of its campaign. The article was headlined "IBT Convention a Showcase for Unity" and credited the incumbent administration with rebuilding "member unity." Election Administrator Wertheimer found as fact that "unity" was a principal slogan of the Hoffa slate, that it was used in the slate's name, and that various conjugations of it were featured in the slate's campaign materials. The slate's prominent use of "unity" as a campaign theme represented its call to the union's membership to come together politically behind the slate and its lead candidate. The Election Administrator held that "[t]he article's emphasis on newly-found Teamster 'unity,' telegraphed in its headline, along with its commendation of the Hoffa administration's accomplishments, is partisan praise [by the local union] for one side in the upcoming International officer elections," in violation of the Rules.
In Martinez, 2001 EAD 414 (July 27, 2001), aff'd, 01 EAM 87 (August 30, 2001), the Election Officer ruled 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 union and its spokespersons may permissibly call for unity in a campaign against a named employer or specific legislation because the audience's attention is directed strongly to that particular legitimate trade union objective and away from an internal-union political message."
Each of these decisions rests on Article VII, Section 12(b) of the Rules, which bars a union from endorsing or otherwise advancing a candidacy. The holdings confirm that, where a particular term has become a central theme of a candidate's campaign for election, its use in union-financed publications and communications constitutes improper endorsement of the candidate by the union.
In the present case, we are not presented with facts that demonstrate that the union has adopted a candidate's campaign slogan as the union's theme. Instead, the protest alleged that the candidate, the Hoffa campaign, has adopted the IBT's theme as its campaign slogan. This argument rests on Article VII, Section 12(c), which prohibits use of union funds, facilities, equipment and personnel "to assist in campaigning," and Article XI, Section 1(b)(3), which prohibits the 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.
We find that the IBT has used "unity" in a variety of legitimate trade union contexts for several years to provide a theme for a broad range of activities that include organizing, contract campaigns, national political efforts, and education. Review of the IBT website demonstrates that "unity" not only is used thematically in the press releases and news items prepared by the IBT but is also repeated by rank-and-file members commenting on the efforts of the union to build support for Teamsters goals. Within the Teamsters Union, we find that "unity" is so closely identified with the union's efforts and activities as an institution that the term, as a theme, has become a "thing of value" that belongs to the union.
Our precedents establish that a theme employed pervasively by a candidate may not be adopted by the union as an institution during the electoral period because the union's use of the theme under such circumstances would constitute an implicit endorsement of the candidate. The converse of this principle also is true: where the union has established a term or phrase as a theme that is identified with the union as an institution, a candidate cannot take that theme as the candidate's campaign slogan without appropriating a "thing of value" from the union, in violation of the Rules.
Applying this principle to the facts of the present case, we find that the Hoffa campaign has not adopted the term "unity" as a campaign slogan and therefore has not taken a "thing of value" from the IBT. Where an earlier version of the Hoffa campaign's website identified the slate as "Hoffa-Keegel Unity Slate," subsequent and current postings on the site identify the slate, nearly uniformly, as the "Hoffa 2006" slate. Although the term "unity" appears on the site presently, the site does not employ the term in a manner or frequency that would permit us to find that the campaign has adopted the term as a campaign slogan. Use of the word in this way, consistent with its common use in trade union discourse and not with aberrant frequency, does not violate the Rules.
This ruling is limited to the website presentation as it currently exists. If the website or campaign material of the Hoffa slate, or any candidate, changes in thematic presentation and it is established that the change makes use of union thematic material in a way not allowed by our past rulings, cease and desist orders and other appropriate remedial action will be ordered.
Accordingly, we DENY the aspect of the protest decided here.
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 305
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
Allen Bunch
451 Spring Branch Road
Marion, VA 25354-5142
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com