Protest Decisions

            Hoffa-Hall 2011 filed a pre-election protest pursuant to Article XIII, Section 2 of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that the Pope campaign obtained a prohibited employer contribution from Local 1180 of the Communications Workers of America, in violation of the Rules.

            Election Supervisor representative Deborah Schaaf investigated this protest.

Findings of Fact and Analysis

Sandy Pope a candidate for IBT General President.  In addition, she is president and principal officer of Local Union 805 in Long Island City, New York.  On March 2, 2011, she was interviewed on The Communique, a radio show broadcast on station WNYE (91.5 FM) in New York City.  The Communique is a weekly production of CWA Local 1180; it airs weekly on WNYE in the Wednesday, 1 p.m. time slot.  Bill Henning, second vice president of the local union, hosts the show, in which he interviews guests on a wide range of topics.  Recent subjects have included national and international issues (for example, health care reform and the war in Afghanistan), and labor issues in New York (including organizing drives at the Kingsbridge Armory in the Bronx and among domestic workers).  The program has been broadcast for some 25 years. 

WNYE is operated by NYC Media.  According to its website,[1] “NYC Media, part of the Mayor’s Office of Media and Entertainment, is the official TV, radio and online network of New York City, informing, educating and entertaining New Yorkers about the City’s diverse people and neighborhoods, government, services, attractions and activities.”  Local 1180 contracts with NYC Media for air time for The Communique.  Although NYC Media retains overall editorial control by contract, Henning told our investigator that he, Gary Schoichet (Local Union 1180’s communications director), and two outside producers carry out day-to-day editorial policy for the show.  Henning said the group meets every two months or so to decide interview subjects.  Henning stated that NYC Media’s policy prohibits endorsements of candidates in public elections and of commercial products and service, and that NYC Media has never censored or refused to air The Communique.

Henning told our investigator that he and his editorial group chose Pope for the March 2 broadcast because they believed listeners would be interested in her local union’s efforts to organize Fresh Direct, the New York City grocery delivery service, and because her campaign for IBT General President was in their view a good news story, as it concerned a woman formerly employed as a rank-and-file truck driver who holds a top local union office in a heavily male union.  Henning said that he approached Pope for the interview, and that neither Pope nor her campaign solicited her appearance on the show.

Pope responded to Henning’s questions on the program.  She discussed her experiences as a truck driver, a rank-and-file union member, and a local union officer.  She described the Fresh Direct campaign and her views on contract bargaining strategy, card check recognition agreements, and union political contributions to candidates for public office.  The interview concluded with a question about why she is seeking the IBT presidency.

Local 1180 maintains podcasts of The Communique on its website at http://www.cwa1180.org/Pages/Podcasts.aspx.  The March 2 interview with Pope is available there.[2]

Neither Local 1180 nor the CWA is affiliated with the IBT or Local Union 805, Pope’s local union.  Further, neither Pope nor her campaign has any editorial role or input in The Communique.

Pope has been interviewed by a variety of media concerning her candidacy and labor issues generally, including print publications such as New York magazine, the New York Times, The Economist, the London Times, The Nation, Newsday and In These Times, and broadcast media such as CNN, Fox News, and local television and radio stations.

Hoffa-Hall 2011’s protest argued that the interview by Local 1180 constituted an employer contribution to Pope’s campaign. 

Article XI, Section 1(b)(2) prohibits employers from contributing “anything of value” to a candidate.  Local 1180 is an employer. 

However, case law developed under the Rules provides a “media employer exception” to the general rule prohibiting contributions by employers.  The parameters of this exception were outlined in Hoffa Unity Slate, 2001 EAD 78 (January 8, 2001), as follows:

In applying prior election rules to media communications, Election Officers have recognized a broad exception for “publications intended for and disseminated to the general public.”  Such publications have been held to be entitled to “the greatest latitude in exercising the right to communicate” as required by the First Amendment to the U.S. Constitution.  Hoffa, P743 (May 23, 1996).  Designated as the “media employer exception” to the regulation of campaign contributions, past Election Officers did not exercise jurisdiction over “newspaper or magazine articles published by entities which are not owned or whose editorial policies are not controlled by candidates or committees acting on behalf of candidates.”  Pressler, P365 (February 22, 1996); Brennan, P971 (October 16, 1991); Scott, P969 (October 18, 1991).  The “media employer exception” specifically applies to those publications that, like Labor Notes, target a labor audience.  See, e.g., Sauwoir, P41, et seq. (August 16, 1995) (applying the “media employer exception” to the labor media).

Election Officers have consistently determined that the lack ownership or control of a media entity by any International officer candidate or any committee acting on behalf of such a candidate is the primary requisite for the application of the “media exception.”  See Hoffa, supra (allegedly pro-Carey article in the Union Democracy Review); Pressler, supra (interview with Mr. Hoffa on radio station ROCK 103.5 in Chicago); Hasegawa, P161 (October 24, 1995) (article covering Hoffa campaign in The Labor Times); Scott, supra (article on 1991 Carey campaign in Labor Notes); Brennan, supra (reprinting of Carey campaign material in article on 1991 election in the Detroit Free Press).

Moreover, to the extent that a campaign suggests that the Rules require media entities to include opposing viewpoints in the same communication, the decisions cited above show otherwise.  “Legitimate media communications often have an angle.  The full story will not be found in any one communication.  Therefore, the media exception is applicable even where the entity adopts a point of view.”  Rockstroh, P1003 (November 5, 1996).

            Based on Hoffa Unity Slate and the precedent on which it relied, we find that the March 2 broadcast of The Communique on WNYE-FM fell within the media employer exception.  Although it was produced by an employer – Local Union 1180, CWA – it was intended for and broadcast to the general public over WNYE-FM.  Moreover, neither WNYE-FM, NYC Media, nor Local 1180, CWA is owned or its editorial policies controlled by a candidate or a committee acting on the candidate’s behalf.

            Having determined that the March 2 broadcast of The Communique fell within the media employer exception to the prohibition on employer contributions, we find that the exception also applies to the podcast – the recording of that broadcast – that is available on Local 1180’s website. 

            The protest also contends that The Communique interview constitutes a union contribution to Pope’s campaign that is prohibited by Article XI, Section 1(b)(3) of the Rules.  We disagree.  While any activity by a labor organization would be subject to LMRDA restrictions on the use of union resources, we find that the media employer exception covers The Communique because: 1) it is broadcast on public airwaves; 2) it has a 25-year history of broadcasting to the general public on topics of general interest and is not some pop-up feature created for the moment of the IBT International officer election; and 3) its editorial policies are not controlled, generally or specifically for this program, directly or indirectly, by a candidate in the IBT International officer election or a committee acting on such a candidate’s behalf.[3] 

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, NY  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, 1801 K Street, N.W., Suite 421 L, Washington, D.C.  20006, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.