Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR for the INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: SANDY POPE,                                  )           Protest Decision 2011 ESD 333
                                                                         )           Issued: September 28, 2011
            Protestor.                                            )           OES Case No. P-326-092211-NA    
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            The Sandy Pope campaign filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Hoffa-Hall 2011 obtained an impermissible employer contribution by posting an article from the News Tribune to its website. 

            Election Supervisor representative Deborah Schaaf investigated this protest. 

Findings of Fact and Analysis

            On September 10, 2011, the News Tribune, a McClatchy newspaper in Tacoma, Washington, published an article titled “Hoffa: War … Right Here.”  The article reported on an appearance by James P. Hoffa in Puyallup, Washington, to rally support for contract bargaining at Fred Meyer grocery stores.  The 19-paragraph article was posted in its entirety on the Hoffa-Hall 2011 website the same day.  It was removed on September 23.  This protest, filed September 22, alleged that the campaign used the article without permission or compensation and therefore obtained a prohibited employer contribution.

            In Hoffa-Hall 2011, 2011 ESD 275 (June 7, 2011), we denied a protest filed by Hoffa-Hall 2011 against the Pope campaign for using a full reprint of a New York magazine article on the Pope campaign website.  We found there that the Pope campaign had obtained permission from the magazine for such use.  The permission took the form of a 30-day license the campaign had purchased from the magazine.  Accordingly, we found that the magazine article constituted the asset of an employer and that the campaign had paid fair market value for its use, as required by the Rules.

            Here, investigation showed the News Tribune has published guidelines under which its articles may be used.  The guidelines state, “We do not grant permission to political candidates and organizations to reprint stories … as part of campaigns.  And, specifically we do not grant requests by candidates to reproduce stories, or The News Tribune nameplate, in campaign materials.”

            The News Tribune’s representative for copyright matters told our investigator that the publication’s prohibition on use of articles by candidates applies to candidates for union office.  Accordingly, the representative stated that a Hoffa-Hall 2011 request for permission for a full reprint of the article on the campaign website would have been denied.  The representative further stated that the News Tribune permits a website to post the title and the first two paragraphs of the article only, followed by a hyperlink to the News Tribune website for the full article.

            On these facts, we conclude that Hoffa-Hall 2011 violated Article XI, Section 1(b)(2) of the Rules by reprinting the full News Tribune article on the campaign website without permission or compensation.  The article represented a “thing of value” to the campaign, which it used to influence the election of a candidate. 

Remedy

When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.” Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.

            We order the Hoffa-Hall 2011 campaign to cease and desist from using employer resources to campaign.

We need not order the campaign to remove the full reprint of the article from its website, as it did so on September 23, 2011.

However, the campaign obtained the use of the full reprint of the article without permission or compensation for a period of two weeks.  This will not be permitted.  In assessing the appropriate price for use of the full reprint, investigation showed that the News Tribune uses the Copyright Clearance Center (CCC) for pricing reprint requests that meet its guidelines.  Under CCC’s pricing algorithm for website reprint of a full article for a period of 30 days (the minimum period permitted), the price for the article Hoffa-Hall 2011 used would have been $303.50.  Because the News Tribune would have refused the campaign’s request for the full reprint that it appropriated to itself, the publication also will refuse payment by the campaign now.  Accordingly, as the final element of remedy for the Rules violation here, we direct Hoffa-Hall 2011 to pay the sum of $303.50 to OES within two days of issuance of this decision.

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.

                                                                                     Richard W. Mark
                                                                                    Election Supervisor

cc:        Kenneth Conboy
            2011 ESD 333

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