IN RE: LEEDHAM SLATE, Protestor.
Protest Decision 2006 ESD 357
Issued: September 26, 2006
OES Case No. P 06 335-091506-HQ
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 an email distributed by the Hoffa 2006 campaign did not include a disclaimer required by Election Supervisor advisory.
Election Supervisor representative Jeffrey Ellison investigated this protest.
Findings of Fact and Analysis
On August 10, 2006, Hoffa 2006 sent a campaign email to the IBT's email list. The email's sender was listed as "Jim Hoffa;" the subject line read "Join the Team." The body of the email commenced with Hoffa 2006 letterhead and read in part as follows:
Dear Fellow Teamsters:
I am writing today to ask you to vote for the Hoffa 2006 Teamsters America's Strongest Union Slate and to join our grassroots campaign team.
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Employers and politicians will be watching closely to see how strong a margin Teamsters re-elect the Hoffa Team. They will use any sign of weakness against us.When we negotiate from strength Teamsters win!
Help me show the employers and others who would try to divide our union how united and strong we are by joining our grassroots campaign team.
Already thousands of fellow Teamsters are distributing flyers and talking to their coworkers about the accomplishments of the Hoffa Administration and the need to elect the entire Hoffa 2006 Slate.
Please go to our campaign website at www.hoffa2006.com and sign up to be a volunteer for our campaign. You can also view our ads that appear in the August Teamster magazine by clicking here.
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The email was signed "James P. Hoffa." It listed a street address of 236 Massachusetts Avenue, NW, Suite 602, Washington, DC 20001; this address is not that of the IBT.
The protest alleged that the email violated our March 6, 2006 Advisory on Rights of Candidates to Distribute Campaign Literature to Members Using IBT International Union and Local Union Email Lists, which requires in part the following:
All electronic communications must include a statement as follows: "This email is distributed by [name of campaign], which is solely responsible for its content. This message has not been reviewed or endorsed by the [IBT or Local XXX]."
Hoffa 2006 responded to the protest first by asserting that it was untimely filed. The email was sent August 10; the protest was not filed until September 15. Hoffa 2006 asserts that the email was sent to the full list of addressees on the IBT email list, which it asserts must include Leedham slate members and supporters. We acknowledge that substantial question exists as to whether the protest was timely filed. However, given that email distribution of campaign literature involves a provision of the Rules added for this election cycle, prudence requires that we provide guidance to the parties on the required contents of email communications. Accordingly, we decide the matter on its merits.
The Hoffa campaign stated the following with respect to the merits of the protest:
As to the allegations contained in the protest, it appears that this email was unintentionally and accidentally distributed without the required disclosure. This oversight will not be repeated. Further, the format of content of the email itself does not conceal the fact that the email is from Hoffa 2006 and not the IBT or Teamsters. Mr. Hoffa does not write as General President, the email carries campaign letterhead, and the letter itself clearly indicates that this is a campaign piece and not an official IBT communication. Lastly, the email calls readers to the www.hoffa2006.com website, clearly campaign related. While the email inadvertently failed to include the required disclosure, the content and format of the email does not lend itself to confusion as to its source and intent.
The purpose of the disclaimer the Advisory requires is to eliminate confusion as to the source of the communication. The email list used here is an official IBT mailing list and the disclaimer informs the recipient that this authorized distribution is not endorsed by the union. It is the same sort of disclaimer the Rules require on literature candidates may request to mail using the Union's nonprofit bulk rate permit. See Rules, Article VII, Section 7(a)(3). For email communications, such a disclaimer is particularly important where the communication is sent by the incumbent International officer or where the message uses symbols such as the Union's official logo or similar insignia, facts that may cause confusion among recipients as to whether the communication is from the union or from a candidate. Here, we find that, despite the lack of the required disclaimer, the appearance and content of the communication eliminates the possibility that recipients would be misled into believing that the email was from Hoffa as General President or from the IBT. Accordingly, the failure to include the disclaimer is a violation of the Advisory for which only a cease and desist remedy is necessary.
The Hoffa campaign has promised to include the prophylactic disclaimer in future campaign emails. The disclaimer must be included in future campaign emails, regardless of whether the format or appearance, objectively considered, renders the email not misleading as to its source. On this basis, we deem this protest RESOLVED.
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 Office of the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, Suite 1400, N.W., Washington, D.C. 20006, 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 357
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