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 two officers of Local Union 249 used union resources to influence the outcome of the International officers election, in violation of the Rules.

            Election Supervisor representative Denise Ventura investigated this protest.

Findings of Fact and Analysis

Local Union 249 had a contested delegates election for four delegate and four alternate delegate positions.  The winning slate, the Local 249 Future slate, was led by local union secretary-treasurer Rocco DiFilippo.  That slate defeated the slate comprised largely of other local union officers and employees, including president and principal officer Joseph Rossi, Jr., vice president Michael Ceoffe, recording secretary Gary Alward, business agent Joseph Popinski, and trustees Nancy Stinner and Daniel Putteman.  Ballots were counted in the election on March 9, 2011.

During the delegate election campaign, the Local 249 Future slate articulated campaign attacks against its opposition on a website, www.249futureslate.com.  Among the issues raised were claims that the local union under Rossi’s leadership paid for union officers to attend an employee benefits seminar in Hawaii and that the local union “cut a sweetheart deal” to get full-time business agents to relinquish their positions. 

On June 28, 2011, nearly four months after the delegates election concluded, Rossi sent a two-page letter printed on local union letterhead to all local union members responding to these claims.  The letter observed that “information has surfaced in the public domain regarding the operation of the Local Union which is inaccurate, and because this inaccurate information may be picked up and used by employers in any of the Local Union’s organizational campaigns, the Executive Board wants to set the record straight.”  The letter then stated the reasons the local union sent several officers to the employee benefits seminar, stating that the travel expenses were paid for by the funds on which the officers served as trustees and not by the local union, and further that the knowledge gained at the seminars was essential to proper administration of the funds.  The letter also stated that the local union did not “cut a sweetheart deal” with any employees, instead characterizing the effort as a responsible one to reduce the operating expenses of the local union and thereby avoid a dues increase.  The letter did not refer to the Local 249 Future slate, the delegates election, or the International officers election.  Enclosed with the letter was a February 17, 2011 letter from the local union’s attorney to Rossi and DiFilippo which substantially corroborated the claim in Rossi’s letter that the arrangements with the former officers were undertaken to save the local union money.

The protest contended that Rossi’s letter to the local union membership constituted improper use of union resources to campaign.  We disagree.  We find that the letter and its enclosure was a report to the membership on a matter of concern that did not violate the Rules.

We assess union-financed communications under the tone, content and timing test:

To establish a violation of Section 401(g), it is not necessary that the questioned publication be explicitly or implicitly committed to endorsing specific candidates or attacking the opposition.  Rather its overall tone, timing, and content must be evaluated to determine whether there is any blatant encouragement of the incumbent [or challengers].'  Donovan v. Local 719, United Automobile, Aerospace and Agricultural Implement Workers of America, 561 F. Supp. 54, 58 [113 LRRM 2902, 2906] (N.D. Ill. 1982); accord Telephone Workers, 703 F. Supp. at 206, Usery v. International Org. Masters, Mates and Pilots, 538 F.2d 946, 949 [92 LRRM 3297] (2d Cir. 1976); Liquor Salesmen's Union Local No. 2, 334 F. Supp. at 1369, 1377 [78 LRRM 2020], aff'd, 444 F.2d 1344 [78 LRRM 2030] (2d Cir. 1971); Wirtz v. Independent Workers Union of Florida, 272 F. Supp. 31, 33 [65 LRRM 2924] (M.D. Fla. 1967).  Regarding content, federal regulations interpret LMRDA §401(g) as 'prohibit[ing] any showing of preference' by union-financed publications through praise, endorsement, criticism or attack directed towards a candidate, 29 C.F.R. §452.75 (1994); accord McLaughlin v. American Fed'n. of Musicians, 700 F. Supp. 726, 734 [132 LRRM 2508] (S.D.N.Y. 1988) ('promotion of a candidate under §401(g) includes both affirmative statements about the candidate and negative references about the opposition.').

In addition to the timing, tone, and content, courts often consider 'the circumstances surrounding the challenged publications'.  Am Fed'n. Musicians, 700 F. Supp. at 734 (citing Liquor Salesmen's Union, 334 F.Supp. 1377). In American Fed’n of Musicians, the court looked beyond the text of the challenged articles to consider the legitimate need for reporting on and discussion of an incumbent union president's activities in a union-financed newspaper, even though such reporting could impact an upcoming election.  American Fed'n. Musicians, 700 F. Supp. at 734. The court held that 'the continued direct and indirect personal attacks [on the incumbent] ... constituted more than just reporting on issues that concerned the union.' Id. at 735.

Reich v. Teamsters Local 843, 149 LRRM 2358, 2364 (D.N.J. 1994); see also, e.g., Camarata v. Teamsters, 102 LRRM 3053 (D.D.C. 1979).

The local union’s mailing here satisfies the tone element of the review.  It addresses the two issues presented in neutral terms, does not attack the source of the information, avoids self-promoting language, and does not refer to any partisan or political motivation either for the original information or the response.

With respect to content, the issues addressed undoubtedly were ones of concern to the membership.  The local union has suffered a decline in membership and, with it, a decline in revenue.  The letter addressed the suggestion previously made to the membership that traveling to Hawaii for an employee benefits seminar was without beneficial purpose.  It also sought to justify as a cost-saving measure the action of reducing the number of full-time employees of the local union. 

Concerning timing, the communication to the membership came nearly four months after the delegate election was concluded and more than three months before ballots are to be mailed in the International officers election. 

This case is distinguished from that presented in Hill, 2011 ESD 136 (February 24, 2011), appeal withdrawn, 11 EAM 25 (March 9, 2011).  There, the challengers in the local union delegates election raised as campaign issues the conduct of the local union with respect to a lawsuit filed against it by a former employee.  The local union’s principal officer, who also was a candidate for delegate in the pending election, sent a letter at local union expense on union letterhead to the local union membership responding to the claims.  The letter was timed to arrive in members’ homes at the same time that ballots in the delegates election were delivered.  In addition to the timing, the letter was self-laudatory.  We found that the letter there constituted improper use of union funds to influence the delegates election.  In contrast, the letter here is appropriate both in tone and content, and its timing is well apart from the local union delegates election or the International officer election.

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.