IN RE: VIRTUE-DILEO SLATE, Protestor.
Protest Decision 2006 ESD 375
Issued: October 17, 2006
OES Case No. P-06-348-101206-HQ
The Virtue-DiLeo 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 content and timing of the September 2006 edition of Teamster Leader newsletter constituted union-financed support for the Hoffa candidacy, is a violation of the Rules.
Election Supervisor representative Steven R. Newmark investigated this protest.
Findings of Fact
Teamster Leader is published bi-monthly and is distributed to "Teamster leaders," including business agents, shop stewards, local union elected officials, and the like. The September issue of Teamster Leader was mailed to 123,000 members on September 25, 2006.
Dan Virtue of the Virtue-DiLeo slate stated that he received the mailing on October 10, 2006, nearly 2 weeks after it was mailed. Virtue stated October 10 was the same day he received his ballot for the 2006 International officer election. Virtue complained that the content of the newsletter should not have included coverage of the 2006 IBT Convention or a get-out-the-vote message from General President Hoffa.
With respect to Teamster Leader's convention coverage, Virtue said the coverage was inappropriate because there has been "more than adequate coverage in other IBT publications." The September issue, however, was the first post-Convention publication of Teamster Leader.
Virtue's second complaint concerned the last page of the magazine, which contained a message from General President Hoffa, with accompanying photo, encouraging members to vote both in the IBT election, as well as the 2006 mid-term elections. The message stated the following:
As you are no doubt aware, the election for officers for the International Brotherhood of Teamsters is right around the corner. As Teamster leaders, we are responsible for encouraging our members to vote and stressing the importance of a strong turnout.
Ballots are being mailed to members on October 6 and it is imperative that we have a strong showing. We must demonstrate to employers, politicians and naysayers that we have a membership that cares about their union. The more members who vote in this election, the stronger our great union will be.
The Teamsters Union election is not the only important ballot you will cast in November. Mid-term elections will be held on November 7, 2006. The mid-term elections will impact every state in one way or another, and will affect unions and working Americans dramatically.
These elections are critical to our future. Politicians must be held accountable for the actions they take and the votes they cast. If they do not stand with us, we should not stand with them on Election Day.
I urge you to make sure your ballots are cast for pro-labor candidates. Study the issues and see where the candidates in your area stand on issues such as jobs, pensions and health care. Support candidates that support working families.
The language used is content neutral and at no time does the publication use language for or against any international candidates.
Analysis
Article VII, Section 8(a) of the Rules declares that "[n]o publication or communication financed, directly or indirectly, by a Union may be used to support or attack any candidate or the candidacy of any person."
None of the material included in the September 2006 Teamster Leader constitutes campaigning because it does not support or attack any candidate. Instead, it addresses issues of general concern to the membership. See Bucalo, 2006 ESD 171 (April 6, 2006). Where the tone and content of union-financed publications are politically neutral, as here, a Rules violation will generally not be found based solely on the timing of the publication. As the Election Appeals Master explained in Hicks, 06 EAM 22 (Marcy 15, 2006), affirming 2006 ESD 110 (March 2, 2006), "elected [union] officers should not, and cannot, be constrained by the Rules from discharging their responsibilities to the membership in reporting on matters of vital interest, as long as the reportage is politically neutral." We find that the material published concerning the IBT convention did not violate this standard.
On the protest's second point, calling for members to exercise their right to vote is politically neutral; the publication does not call for voters to vote for one slate over another, but rather simply to exercise their franchise. The message neutrally reminds members of the right to vote, and provides information concerning the timing of events in the voting process. Further, we recognize that the union has a legitimate institutional interest in increasing voter turnout. See Local Union 688, 2001 EAD 472 (September 28, 2001).
Accordingly, we DENY the protest.
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 375
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
Dan Virtue
Virtue-DiLeo Slate
P.O. Box 5006
Harrisburg, PA 17110
Virtue-Dileo@hotmail.com
Steven R. Newmark, Esq.
Office of the Election Supervisor
1725 K Street, NW, Suite 1400
Washington, DC 20006
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com