Protest Decisions

August 17, 1995

Mike Martin, et al.

August 17, 1995

Page 1

VIA UPS OVERNIGHT

Mike Martin

1371 Duncan

Ypsilanti, MI 48198

James P. Hoffa

2593 Hounds Chase

Troy, MI 48098

R.E. Middleton, President

Teamsters Local Union 848

9960 Baldwin Place

El Monte, CA XXX-XX-XXXX

C. Sam Theodus

202 James Circle

Avon Lake, OH 44012

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Tom Sever, Secretary-Treasurer

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

John Sullivan, Esq.

Associate General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

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Re: Election Office Case Nos.               P-010-IBT-PNJ

                                             P-017-IBT-PNJ

                                             P-022-IBT-PNJ

                                            P-048-IBT-PNJ

                                             P-077-IBT-PNJ

                                                                                                                  P-088-IBT-SCE              DECISION

                                                                                                                P-105-IBT-PNJ                     ON

                         P-106-IBT-PNJ              REMAND

Gentlemen:

Related pre-election protests were filed with the Election Officer pursuant to

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Article XIV, Section 2(a) and (b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).[1] 

By letters dated March 6 and April 11, 1995, Mike Martin, a member of Local

Union 337 in Detroit, Michigan, filed a protest (P-010-IBT-PNJ) alleging that General President Ron Carey has utilized the IBT-financed international magazine, Teamster, to unfairly and in a slanted fashion favor the candidacy of Mr. Carey and his supporters, while excluding coverage of Mr. Carey’s opponents.  Mr. Martin specifically cites the March 1995 issue and several pages of the April/May issue of the Teamster.  Mr. Martin also protests the following:  misuse of the Teamster Leader, which he similarly contends is designed to support Mr. Carey’s candidacy; the use of union resources to promote Mr. Carey’s candidacy by his appearance at a union-sponsored rally in Louisville, Kentucky, on March 11, 1995, which, Mr. Martin contends, ostensibly supported the Overnite Trucking campaign; Mr. Carey’s tour of a UPS facility in Louisville, Kentucky; and the use of union funds to publicize Mr. Carey’s  appearance on “Trucking Bozo,” a radio talk show.

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By letter dated April 3, 1995, James P. Hoffa filed a protest (P-017-IBT-PNJ) alleging Mr. Carey produced and distributed an Overnite Trucking video and audio tape to members, using union funds, to promote his candidacy for General President; and produced and distributed through direct mail to members  “Cleaning Up the Teamsters Union -- A Three-Year Progress Report,” dated February 1995, to influence the membership and to promote his candidacy in violation of the Rules.

By letter dated April 12, 1995, Mr. Hoffa filed a protest (P-022-IBT-PNJ) alleging that the April/May 1995 Teamster magazine unfairly and in a slanted way favors the candidacy of Mr. Carey in violation of the Rules.  Mr. Hoffa specifically cites several pages of the International publication.  Mr. Hoffa alleges that Mr. Carey’s use of the International magazine in violation of the Rules establishes a pattern and practice of Rules violations.  Mr. Hoffa also alleges that an undated flyer produced by the IBT Organizing Department and circulated at a Local Union 299 freight meeting constitutes campaign literature.

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By letter dated May 24, 1995, R.E. Middleton, President of Local Union 848 filed a protest (P-048-IBT-PNJ) alleging that all issues of the IBT magazine since March 1992 until the date of his protest were utilized as a campaign vehicle for the reelection of Mr. Carey; that Mr. Carey established and misused the union-financed Carhaul Contract Bulletin, Teamster Freight, Teamster UPS Update, Teamster Warehouse News, and Brewery and Soft Drink News since March 1992; that Mr. Carey established and misused for campaign purposes the Teamster Leader; that the three-year progress report “Cleaning Up the Teamsters,” dated February 1995, was published and distributed in violation of the Rules; that Mr. Carey engaged in political campaigning using union resources in Phoenix, Seattle, Detroit, Milwaukee, Chicago, Columbus, Ohio and Charlotte, North Carolina; and used union resources to support the campaign activities of IBT staff members on behalf of Mr. Carey, especially Robert Muehlenkamp and William Hamilton.  Finally, Mr. Middleton alleges that these documents and actions demonstrate Mr. Carey has engaged in a pattern of campaigning.

By letter dated May 23, 1995, Mr. Hoffa filed another protest (P-077-IBT-PNJ) contending that the June 1995, issue of Teamster magazine is similarly in violation of the Rules, and a continuing pattern and practice violation.  Mr. Hoffa specifically cites several pages of the June issue.  In addition, Mr. Hoffa contends Mr. Carey has introduced and used Teamster Warehouse News and the Brewery and Soft Drink News, IBT-funded publications, to support his candidacy.

By letter dated June 8, 1995, C. Sam Theodus, President of Local Union 407, filed a protest (P-088-IBT-SCE) over Mr. Carey’s use of union funds to produce and distribute “Cleaning Up our Union, Building Teamster Clout,” which the protester alleges is campaign literature in support of Mr. Carey’s reelection.[2]

  Mr. Middleton filed another protest (P-105-IBT-PNJ) alleging that General President Ron Carey has used the July/August issue of Teamster, for personal campaign purposes in violation of the Rules.  Mr. Middleton did not cite any specific articles in the July/August Teamster magazine.

Subsequently, Mr. Hoffa filed another protest (P-106-IBT-PNJ) alleging that

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Mr. Carey misused funds of the IBT, also based upon the content of the July/August issue of Teamster, and again alleged a pattern and practice of Rules violations through the use of the International publication.  In his protest, Mr. Hoffa cites a picture of General President Carey on page 1; an article entitled “The Future of Teamster Reform, located  on pages 2 and 3; an article on page 16 which describes a rally in Kankakee, Illinois; and an article on page 17 which describes a rally in Detroit, Michigan. 

The IBT has responded to these protests by stating that Mr. Carey is the General President of the IBT, and the courts have recognized that as the chief officer of the union,

Mr. Carey will perform his “legitimate and non-election-related duties and in doing so will have cause to communicate his activities to the members who are affected thereby.”  The IBT contends that the protesters have taken every report of such activity and complained it is a campaign tool without drawing a nexus to the upcoming election.  In each article cited, and in the publications as a whole, the IBT contends it responsibly reported to the membership newsworthy events, including those conducted or participated in by the current leadership. Regarding the three-year progress report, “Cleaning up Our Union, Building Teamster Clout,” the IBT asserts that the report was a legitimate activity of a union which intends to keep its membership apprised of actions and activities which affect them, and there is no evidence of an improper motive or nexus to the election process in the production or distribution of the report.  The IBT maintains that neither the July/August issue of Teamster, taken as a whole, nor the four items specified in Mr. Hoffa’s protest, violate the Rules and, in support, the IBT presents an analysis of both the facts and the case law which it asserts are applicable to the matters alleged.

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As to the allegations by Mr. Middleton in P-48-IBT-PNJ of a pattern of campaigning demonstrated by campaign visits by Mr. Carey and campaign activities by IBT staff members, the IBT argues that the protester presents no evidence whatsoever concerning what actions were in violation of the Rules or that the actions complained of were “based on impermissible considerations or can demonstrate any nexus to the election process.”

On July 27, 1995, the Election Officer issued decisions in two consolidated cases addressing IBT publications and other allegations contained in these protests.  The first, in

P-010-IBT-PNJ, P-017-IBT-PNJ, P-022-IBT-PNJ, P-048-IBT-PNJ, P-077-IBT-PNJ, and

P-088-IBT-SCE addressed past IBT publications and various other protested issues.  The second in P-105-IBT-PNJ and P-106-IBT-PNJ addressed only the July/August Teamster magazine.  On August 3, 1995, an appeal hearing concerning the Election Officer’s decision in P-105-IBT-PNJ and P-106-IBT-PNJ was held before Election Appeals Master Kenneth Conboy.  After the conclusion of the hearing, the Election Officer requested that the cases heard upon appeal (P-105-IBT-PNJ and P-106-IBT-PNJ) and P-10-IBT-PNJ, et al., be remanded to the Election Officer for consolidation and reissuance.  On August 6, 1995, the request was granted by Election Appeals Master Conboy.

Thereafter, because these protests raised similar legal and factual claims concerning the publications of the International Union and because there are allegations of continuing violations concerning the International Union publications, these protests were consolidated by the Election Officer, and this is the Election Officer’s reissued decision concerning these consolidated protests.  

Regional Coordinator Peter V. Marks, Sr. investigated all of these protests with the exception of P-088-IBT-SCE, which was investigated by Regional Coordinator Bruce Boyens .

I.              Standards for Review of Publications Under the Rules

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The Rules provide, in Article VIII, Section 8(a), the following prohibition, "No 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 . . ."  The Rules continue by setting out various criteria to be used in determining whether a union-financed publication has violated this general prohibition.

An analysis into the permissibility of a union-financed publication or communication under the Rules must begin with a determination of whether or not a subject of the communication was a “candidate” at the time of the communication.[3]  Ruscigno, P-067-LU20-EOH (July 19, 1995).

In order to determine candidate status within the meaning of the Rules,  the Election Officer first determines if and when a member is “actively seeking nomination or election,” including a declaration or announcement of candidacy or other statement of intent to seek a delegate, alternate delegate, or International officer position.  The Election Officer further reviews the Campaign Contribution and Expenditure Reports (“CCER”) that are required by Article XII,  Section 2(a) to ascertain if and when the member has accepted any contributions or expended any funds in furtherance of his or her candidacy.  The Election Officer also reviews other indicia of candidacy which may be revealed by the investigations conducted through her office. 

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On July 26, 1995, the Election Officer received a memorandum from Protester Hoffa which attached a letter sent by Mr. Carey to members of the IBT in October 1994.  The letter is on the letterhead of “Teamster Pride.”  It was not union-financed, and the text of the letter discusses the upcoming 1996 International officer elections and seeks support for Mr. Carey. Specifically, the letter contains several statements which the Election Officer finds to be indicia of candidacy.  Mr. Carey directly refers to the elections when he writes, “The Royal Teamsters desperately want to get back to the high life again.  They’re working hard to elect anti-reform candidates in Local Union elections, the races for delegates to the 1996 International Union Convention, and in the 1996 election for International Union officers.”  Mr. Carey indirectly refers to his own candidacy when he writes:

The members, families, retirees, and hard-working union officers -- you’re the reason I got into this fight many years ago, and you’re the reason I feel confident about the challenges ahead.

I plan to write you in the coming months -- not at union expense -- and hope you will do the same.  Send me your ideas and your comments, and let me know if there are other Teamsters who ought to be receiving this information.

Based upon this communication by Mr. Carey in October 1994, the Election Officer revises her previous finding, and finds Mr. Carey was a “candidate” as that term is defined in the Rules in October 1994.  Thus, the Election Officer finds Mr. Carey was a candidate when the October/November and December 1994 issues of The New Teamster were published, for those issues of Teamster published in 1995, and other protested publications published in October 1994 or thereafter.  Mr. Carey was not a candidate for those issues of the International magazine Mr. Middleton protests in 1992, 1993 or 1994, prior to the October/ November 1994 issue.

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For those publications where the Election Officer has determined Mr. Carey was a candidate, she must determine whether the union-financed publication was used to either “support or attack” a candidate.  In her analysis under Article VIII, Section 8(a), the Election Officer is guided by cases applying Section 401(g) of the Labor-Management Reporting and Disclosure Act of 1959, as amended (“LMRDA”), which is incorporated into the Rules pursuant to Article XIII.  See also, 29 C.F.R. § 452.75.  Section 401(g) of LMRDA contains similar prohibitions on the use of union or employer assistance in campaigning and is incorporated into the Rules pursuant to Article XIII.  The LMRDA prohibits union assistance only if the activity supported by such assistance promotes the candidacy of a person in a union election subject to Title IV of the LMRDA.

              The distinction between campaigning and other forms of speech or activity is especially important in this case concerning publications of the International Union because it affects how an incumbent officer like Mr. Carey may use the powers of his office or the financial resources of the IBT.  As one leading case held under Section 401(g):

Duly elected union officials have a right and a responsibility to exercise the powers of their office and to advise and report to the membership on issues of general concern.

Camarata v. Int’l Bhd. Of Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979), affirmed, 108 L.R.R.M. (BNA) 2924 (D.C. Cir. 1981).  Accord, Donovan v. Metro. Dist. Of Carpenters, 797 F.2d 140, 245 (3d Cir. 1986).

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Federal labor law is premised on the recognition that the interests of labor and management often conflict.  N.L.R.B. v. Insurance Agents Int’l Union, 361 U.S. 477, 488 (1960).[4]  In order to educate members on the nature of the problems facing them, and to mobilize them into effective action, a labor leader must be able to inspire them to work together.  Thus, unions frequently give publicity to the officers’ activities as a way of communicating their message.  As in many organizations, the leadership of the union often personifies the organization and the principles for which it stands.  Because of this responsibility,

Elected union officials are entitled to use union publications to express their views and to have their union activities reported in [union] publications.  They are not ordinarily required to give space therein to the expression of contrary views . . . So long as such coverage is addressed to the regular functions, policies and activities of such incumbents as officers involved in matters of interest to the membership and not as candidates for reelection, there is not a violation of [Section] 401(c) [of the LMRDA].

Camarata, supra.  Accord, McLaughlin v. American Fed. of Musicians, 700 F. Supp. 726, 735 (S.D.N.Y. 1988). 

In New Watch-Dog Comm. v. New York City Taxi Drivers Union, 438 F. Supp. 1242, 1251 (S.D.N.Y. 1977), the Court noted:

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Although this court recognizes that to an extent incumbent officers in a preelection period must be potentially regarded as de facto though unannounced candidates for reelection, it cannot conclude that, as a consequence, all reporting concerning an incumbent official is to be as impermissible campaigning for the incumbent candidate.

In Yablonski v. United Mine Workers, 305 F. Supp.868, 871 (D.D.C. 1969), the Court formulated the issue as follows:

We are aware that defendant, Boyle, as the President of the union running for reelection, will in the nature of things be an important participant in many matters of interest to the membership and be more likely to have his participation in these matters the subject of inclusion in any report to the membership through the Journal [the union’s newspaper].  A line must be drawn between the use of the Journal to report the activities of defendant Boyle as President, which is permissible, and the use of the Journal, in such a way in reporting such activities, as to promote the candidacy of said defendants. 

In  Dole v. Fed’n of Postal Police, 744 F. Supp. 413, 420 (E.D.N.Y. 1990), the Court found that certain challenged articles in the union newsletter were not unlawful campaigning where the statements involved “proper reporting of the facts, statements of interest to the members, and newsworthy activities of incumbents engaged in matters of interest to the members.” Id. at 421.

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It is undoubtedly true that Mr. Carey as an incumbent candidate for reelection derives a certain advantage from the attention and publicity given to him in conducting official IBT business.  Incumbency, however, is a two-edged sword.  Mr. Carey is subject to blame when union policies fails or when negotiations result in a less advantageous collective bargaining agreement.  See, e.g., Ruscigno, P-65-JC37-EOH (July 21, 1995), aff’d In Re: Sullivan, 95 -Elec. App. -  7 (KC) (August 14, 1995).  Moreover, just as the incumbent may conduct union business without having it labeled as campaigning, potential rivals are also free to criticize the policies of the incumbent without having such conduct automatically be labeled campaigning.  United Steelworkers v. Sadlowski, 457 U.S. 102, 112 (1982); Salzhardler v. Caputo, 316 F.2d 445, 448-49 (2d Cir. 1962), cert. denied, 375 U.S. 946 (1963).  As the Court stated in one case:

Defendant has persuasively pointed out that increasing the diversity of views expressed to union members fulfills the LMRDA’s overriding purpose to promote union democracy.  This purpose is served especially well when policies at odds with those of current leadership are put forth.  “The tight grasp of incumbent leaders would be recognized when a court interprets LMRDA union election requirements so that opposition voices can be heard and their weight felt.” 

American Fed. of Musicians, 700 F. Supp. at 734, citing Donovan v. CSEA Local

Union 1000, 761 F.2d 870, 875 (2d Cir. 1985).

In short, the cases demonstrate that restrictions on campaigning must not be read so broadly as to restrict the right and the responsibility of union officers to conduct their official business, nor prohibit other members and subordinate bodies from criticizing the policies or official conduct of those officers.

The Rules in part recognize the mixed nature of campaigning and official duties of many activities of incumbent officers and their challengers.  Article III, Section 11(b) prohibits expenditure of union funds for campaigning by union officers or employees, but continues, “Campaigning incidental to regular union business is not, however, violative of this section.”  Id.

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The Election Officer recognizes that the distinction between campaigning and disputes over union policy takes on a special significance in the IBT at this time, where there are at least two debates going on simultaneously.  The first is how the IBT should prepare for the future in light of the institutional changes wrought by the Consent Decree and the changes in the national economy.  These topics are manifested in such issues as corruption and racketeering in the union, the imposition of trusteeships on Local Unions, the abolition of the area conferences, the bankruptcy of the strike fund, strategies for organizing and the collective bargaining agreements recently attained.  See, e.g., Sullivan, P-053-LU391-EOH (July 10, 1995); Ruscigno, P-065-JC37-EOH (July 21, 1995); Ruscigno, P-067-LU20-EOH (July 19, 1995).  The second debate is over what individuals and groups within the union will hold power over the next four years.  It is often difficult to distinguish between these debates, because the candidates seeking to challenge the incumbents are also the strongest critics of the union’s policies and activities over the last three years.               

Adopting the test used by the federal courts and the Department of Labor in enforcing the LMRDA, the Election Officer looks to the “tone, content and timing” of the disputed materials to determine what constitutes campaigning.  See, e.g., Ruscigno, P-65-JC37-EOH, supra.  While the Election Officer is not limited to the powers or method of operation of the Secretary of Labor, it certainly promotes enforcement of Article VIII, Section 8(a) of the Rules (modeled after Section 401(g) of the LMRDA) and compliance by the parties to use a standard which has been tested in the courts over the years.  Such a test, by its nature, requires a fact-specific analysis of the circumstances surrounding each case.  Clearly, it would be much easier for the candidates, the union, and the Election Officer if there could be a bright-line test for what constitutes campaigning.  Unfortunately, in 35 years of enforcing the LMRDA, neither the Department of Labor or the federal courts have been able to devise one that allows full enforcement of the statute’s prohibition.   

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The Federal Election Commission has in the past used a bright-line test of whether a communication expressly advocates election or defeat of a candidate or involves solicitation, making or accepting contributions.  See, Orloski v. FEC, 795 F.2d 156 (D.C.Cir. 1986).  Although the Court recognized that “all events cannot be neatly categorized as either non-political or political,” id. at 160, it found that the FEC had the authority to adopt a bright-line test to make enforcement easier, even where that interpretation of the statute may be “at the outer bounds of permissible choice.”  Id. at 167.

The Election Officer has carefully considered adoption of such a bright-line test but has reluctantly rejected the idea.  First, the inability of the courts to devise such a test under the LMRDA counsels that the varieties of conduct within labor organizations cannot be assessed without the discretion to examine the overall context in which they take place.  See, American Fed. of Musicians, 700 F. Supp. at 734 (“[T]he Court must necessarily take into account the circumstances surrounding the challenged publications.”); Donovan v. Local 719, UAW, 561 F. Supp. 54, 57 (N.D. Ill. 1982) (“In determining on which side of the line a union publication falls, courts have prohibited not only explicit references to candidates but also more subtle means of support.”).  Second, the Election Officer does not simply adjudicate a statute.  Pursuant to the Consent Decree, she has broad authority to supervise the elections,

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not just sit as a neutral adjudicator.[5]  The expansive exercise of this authority, consistent with legal and constitutional rights, is called for by the broad nature of the Consent Decree and the conduct alleged in the initial complaint.

For these reasons, the Election Officer affirms the use of the tone, timing and content test in determining when communications constitute campaigning.  In evaluating these factors, the Election Officer looks to Article VIII, Section 8(a), decisions of the federal courts under LMRDA, and previous decisions of the Election Officer during the 1991-92 and 1995-96 elections for guidance in a particular case. 

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Some general guidelines are suggested by the Rules and by previous case law described above.  One of the first inquiries will be the proximity of the communication to major election-related events.  An otherwise permissible communication about a relevant issue may take on the characteristics of campaigning when they are issued at the time of, or close to, the selection of delegates, the nominating convention, or the actual voting.[6]   Many of the decisions issued by the Election Officer thus far have been reach-back decisions alleging violations in 1993, 1994 or early 1995.  In these cases, the Election Officer relied heavily on the timing of the communication since the remoteness from any election events would make it unlikely that the communication could in any meaningful way affect the election process.  Now that the election of delegates has begun in some Local Unions (as described more fully below) and petitions to accredit candidates are being circulated, the tone and content of communications will necessarily receive greater scrutiny.  That scrutiny will increase as the major events in the election process draw nearer.

A communication will tend not to be considered campaigning when it concerns union business or an event of legitimate concern to union members, unrelated to the election.[7]  A communication about a candidate is less likely to be considered campaigning if the person holds an official position with the union that merited coverage.[8]

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However, an otherwise acceptable communication may be considered campaigning if it goes on to make a connection with the election or election process,[9] if it involves excessive direct or indirect personal attacks on candidates,[10] or, alternatively, involves lavish praise of  candidates.[11]  Otherwise legitimate coverage of the activities of a union official running for office may constitute campaigning if it is excessive.[12]

Finally, every communication must be examined within the specific context in which it takes place.  An otherwise innocuous communication may be considered prohibited campaigning based on the surrounding facts.[13]

The above guidelines are not intended to be exclusive, nor will every factor be relevant to every case, nor will they necessarily be of equal importance.  They are, simply, different measures for assessing the tone, timing and content of a particular communication.

II.              Application of the Rules to the Publication Allegations in the Protests             

A.  Teamster Magazine[14]

The Teamster (formerly The New Teamster and The International Teamster) is the official magazine of the IBT.   Currently, eight issues per year are published of the magazine.  This union-financed publication has a circulation of 1.7 million.  It is received by IBT members in the United States, members of the press, subscribers and those who receive complimentary copies. 

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Article VI, Section 7 of the IBT Constitution provides that the magazine shall be published under the direction of the General President and guided by the policies of the General Executive Board.

Issues of the International Union’s publication during 1992, 1993 and through September 1994 were published when Mr. Carey was not a candidate.  Moreover, the allegations raised concerning these issues are too remote in time from the 1995-1996 election of International Union delegates and officers to be construed as “campaigning.”  These publications, therefore, are not violative of the Rules.

The October/November 1994 issues of The New Teamster, taken as a whole, does not provide support for Mr. Carey’s candidacy.  The issue is 25 pages (including the front and back covers, but excluding the Provisional Timetable for the 1996 IBT International Union Delegate and Officer Elections and the IRB Report).  There are no pictures of Mr. Carey.  Mr. Carey is mentioned in a short article on page 1 which in an “editorial style” response to a derogatory comment by Local Union 337 President Larry Brennan that was published in the Detroit News.  Mr. Brennan’s comment and the response are contained as a box within a larger article about rebuilding the strike and defense fund.  In an article that contains questions and answers about Teamster pensions, Mr. Carey is mentioned in the context of establishing a new program at the International to provide advice and information to Local Unions about pension issues.  Mr. Carey is mentioned in an article involving temporary trusteeships on

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page 17, and in the letters from members in the “Speaking Out” section on the inside back cover.  The specifics and context demonstrate no excessive or unduly flattering coverage of Mr. Carey, but rather, appropriate references in the context of legitimate and newsworthy events relating to the union.

Similarly, the December 1994 issue of The New Teamster does not violate the Rules.  This issue is 17 pages (including the front and back covers, but excluding the reports of the Election Officer and the IRB).  Again, Mr. Carey is mentioned in the “Speaking Out” letters from members on the inside front cover.  In a short article on page 1, the publication announces Mr. Carey’s election as head of the AFL-CIO Transportation Trades Department.   On page 2, an article about Pony Express workers describes Mr. Carey making a case for the workers before the U.S. Congress and to the chairman of the Federal Reserve Board.  Beside the article is a small picture of Mr. Carey testifying before Congress.  On page 3, Mr. Carey is mentioned in resolving a strike of trade show workers represented by the union. On

pages 6-7, there is an article entitled “Take our Union Back.”  The article is about the International Union’s campaign to clean up corruption in New York and New Jersey.  The article discusses meetings members had with Mr. Carey where Mr. Carey discussed corruption in the union and his imposition of trusteeships.  The article has two quotes from Mr. Carey and has two pictures of Mr. Carey, one speaking with two members and one addressing a meeting.  Finally, Mr. Carey is mentioned on the back cover, asking members to let him know what they think about a national strike fund.   While the three pictures and articles mentioning Mr. Carey in the December issue are more than in the October/November issue, the articles and pictures mention Mr. Carey involved in the performance of activities “addressed to regular functions policies and activities of [an incumbent officer] . . . and not as [a]

candidate[ ] for reelection . . .” Metro. Dist. Council, 797 F.2d at 145, citing Camarata, 478 F. Supp. at 330.

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Nor does the January/February 1995 issue of The New Teamster, taken as a whole, provide support to Mr. Carey as a candidate for General President.  The issue is 24 pages (including the front and back covers, but excluding the Election Officer Letter, the IRB Report and Court Order).  It includes three pictures of Mr. Carey and mentions Mr. Carey 14 times.  There is no mention of the nominations or the elections.

In the March, April/May and June 1995 issues of Teamster, the protesters cite several examples of articles they believe promote the candidacy of Mr. Carey and therefore constitute violations of the Rules.[15]

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With respect to the March 1995 issue, the protesters specifically refer to three pictures of Mr. Carey, as well as a three-page interview with the General President entitled  “Cleaning Up the Union, Rebuilding Teamster Clout” and subtitled “An Interview With General President Ron Carey.”  The interview provides Mr. Carey’s views on a variety of issues of general concern to the membership including corruption, negotiating better contracts, the right to strike, retirement, IBT finances, status of the strike fund and Teamster political clout.  The three pictures accompanying the interview each appear on separate pages.  On page 6, Mr. Carey appears in a group photo along with three individuals identified as members from Seattle.  On page 7, Mr. Carey appears in a group photo along with numerous members in New York.  Finally, on page 8, Mr. Carey appears with two retirees in Ohio.  There are no other photographs of  Mr. Carey in the March 1995 issue.   Only six articles in the 24-page publication (including the front and back cover, but excluding the IRB Report and Court Orders) mention Mr. Carey.

The Election Officer finds the March issue, taken as a whole, does not provide support to Mr. Carey as a candidate for General President.  Mr. Carey’s picture appears only three times and only six articles mention Mr. Carey.  The protested interview with Mr. Carey addresses issues of concern to the membership.   Moreover, discussion by a union leader of such issues through the union’s in-house publication is not only permissible; indeed, it is a union leader’s “responsibility” to do so.  See, e.g.,  U.S. v. Int’l Bhd. of Teamsters, 88 Civ. 4486 (D.N.E.), slip op. at 2. (Mr. Carey is responsible for ensuring that the "IBT. . . be maintained democratically pursuant to the Consent Decree with integrity, and for the sole benefit of its members and without unlawful outside influence[.]"); IBT Constitution,

Article VI, § 1(b) giving the General President “general supervision over the affairs of the International Union;” Article VI, § 2(a) giving the General President authority to interpret the Constitution and laws and to settle all disputes, and Article VI, § 5(a) giving the General President authority to appoint temporary trustees.

The April/May 1995 issue of Teamster contains 25 pages (including the front and back covers, but excluding the Election Officer Report and the IRB Report) and three pictures of Mr. Carey.  The protesters cite several articles and photographs contained in the publication. An article entitled “Pension Fund Fraud Exposed” addresses allegations of misuse of four

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million dollars in IBT pension fund monies and announces an IBT lawsuit against the alleged parties to the fraud.  There is a photograph of Mr. Carey accompanying the article.  A photo of Mr. Carey also accompanies an article entitled “Carey Says Central States Pension Changes Don’t Go Far Enough.”  The article concerns changes in the Central States Pension Fund eligibility requirements that affect members.  An article entitled “No More ‘Family Business’” concerns allegations of hiring hall misuse at Local Union 807.  Another article -- entitled “Investigation: Does the Real Teamsters Caucus Violate Union Constitution?” -- announced a special fact-finding panel named by Mr. Carey to determine whether the Real Teamsters Caucus is using members’ dues to violate the IBT constitution and federal law.  An article entitled “United We Stand,” which Mr. Hoffa labels as a “publicity stunt,” addresses a rally held in conjunction with an organizing effort in Louisville, Kentucky.  A photograph of Mr. Carey, who was a featured speaker at the event, accompanies the article. The  “Cinderella Teamsters” is about the shop steward system at Disney World and the new leadership of Local Union 385 which represents the workers.  There is a picture of Mr. Carey speaking with an IBT shop steward at Disney World.

The Election Officer views the protested articles in the April/May 1995 issue of Teamster as addressing subject matters of general concern to the membership and newsworthy, significant events.  For example, allegations of pension fund misuse are certainly of general interest to the membership.  Because Mr. Carey was announcing an IBT lawsuit against alleged parties to the fraud, the photograph bears a reasonable relationship to his involvement with those activities.  Hiring hall misuse, the investigation of the Real Teamster’s Caucus, and pension changes are newsworthy and  legitimate items of interest to the membership.   Finally, the Election Officer finds that the photographs of Mr. Carey in this issue bear a reasonable relationship to his personal involvement with the activities in the accompanying articles.

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Mr. Hoffa also contends the June 1995 issue of Teamster, “when taken in [its] totality,” violates the Rules.  The issue is 32 pages (including the front and back covers but excluding the Election Officer Report, the IRB Report and Court Orders) and contains three photographs of Mr. Carey.  Mr. Hoffa specifically cites the following articles and photographs in the publication:  the page 1 photograph of Mr. Carey accompanying the article “Teamsters Protest Subsidies for Anti-Worker Companies;" the photograph is of Mr. Carey at a rally protesting  government subsidies; the article entitled “Protecting Pensions” that concerns the use and abuse of pension funds and Mr. Carey’s establishment of temporary trusteeships in Local Unions to curb abuses by employers, corrupt union officials and mob figures; a photograph accompanying the article “Nonunion Disney Hotel That Hosted 1991 Teamsters Convention Now Has Union Contract” that depicts Mr. Carey previously announcing a lawsuit against the hotel during the campaign for a contract; and on page 11, a photograph of Mr. Carey testifying before Congress in favor of highway funding.  Finally, Mr. Hoffa contends the introduction to the International Union’s annual financial report in the June issue violates the Rules.  The introduction, entitled “1994 Financial Report: Continuing the Clean-Up of Abuse of the Past,” pictures a broom and reviews “dramatic reforms by General President Ron Carey and the General Executive Board to correct abuses and mismanagement by the past top union leadership.”

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The June issue of Teamster does not violate the Rules.  The  publication’s  report on a rally protesting government subsidies of anti-worker companies, at which Mr. Carey was a speaker, does not constitute campaigning.  The report bears a reasonable relationship to Mr. Carey’s participation in a newsworthy event.   Mr. Carey’s activities concerning union pension funds are also newsworthy.  Mr. Carey is entitled to have his activities reported on in the Teamster so long as the article bears a reasonable relationship to his involvement.  Camarata, 478 F. at 330.

The page 7 and page 11 pictures of Mr. Carey do not violate the Rules. One is related to the article on the Disney contract and the one of Mr. Carey testifying before Congress on highway funding is a matter of interest to the membership.  Nor does the page 18-19 article regarding the financial status of the IBT.  While the introduction to the financial report highlights the accomplishments of Mr. Carey and his administration, the article does not mention Mr. Carey’s candidacy or the International officer or delegate elections.  The financial status of the union is clearly a subject matter of general interest to IBT members, including how officers have responded to problems now being faced by the union.  That the article reports on Mr. Carey’s and the General Executive Board’s responses to the financial problems being faced by the union does not render it campaign literature.[16]

Mr. Middleton alleges that the July/August Teamster, taken as a whole, violates the Rules.  Mr. Hoffa alleges that the portions of the July/August issue violate criteria contained

in Article VIII, Section 8(a).  Specifically, Hoffa cites a "mandatory" picture of Mr. Carey on page one; an article entitled "The Future of Teamster Reform" on pages two and three that lists the "Ron Carey Slate ‘Accomplishments;’" and articles and photographs on pages 16

and 17 of a K-Mart rally and a newspaper union rally in which Mr. Hoffa claims all references to himself were intentionally deleted.

Unlike earlier protests regarding the Teamster magazine, the July/August issue coincides with the beginning of the delegate election process.  Nomination meetings for

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19 IBT Local Unions representing members in the seasonal food industry began July 5, 1995 and will continue through September 10, 1995.  See, Rules, “Timetable of Events.”  The July/August Teamster was received by members on or about July 7, 1995.  Additional delegate nominations and elections will be held in the Fall.[17]  It is also recognized that under the Rules the vast majority of Local Unions (approximately 520) will not elect delegates to the Convention until the period of January through April 1996.

A general review of the content of the entire July/August issue of Teamster indicates that of the 26 stories contained in the issue, Mr. Carey is mentioned in six items, generally in reporting an event or action taken in his capacity as General President of the IBT.  Of the 23 pictures contained in the issue, only one is of Mr. Carey.  The Election Officer finds, therefore, that the July/August issue, taken as a whole, does not provide support for Mr. Carey’s candidacy in violation of the Rules.  See, Morris, P-1013-LU429-PHL (October 29, 1991).

The Election Officer now turns to the articles and pictures specifically cited by Mr. Hoffa in his protest.              The picture of  Mr. Carey on page 1, while prominently located, is neither larger nor more attractive than pictures of Mr. Carey appearing in prior issues of Teamster.  Additionally, the photograph  relates to national negotiations for a master car hauler agreement (negotiations in which Mr. Carey has taken an active role).  It is, therefore, both a newsworthy event and one to which Mr. Carey has a direct connection in the course of

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carrying out his duties as General President.  The picture, therefore, is not violative of the Rules.

Mr. Hoffa also complains of two stories describing rallies in which IBT members participated.  The first was a rally occurring in Kankakee, Illinois, against K-mart and the second was held in front of the offices of the Detroit News to protest activities of both Detroit daily newspapers.  Mr. Hoffa states he attended both rallies and participated as “a major speaker" and complains that neither article mentions his presence, an exclusion alleged by Mr. Hoffa to be a deliberate attempt to deny him coverage in the magazine.  However, each of the stories in question is quite small, one containing 51 words and the other 55.  The pictures are of rank and file members and neither story mentions Mr. Carey nor the name of any of the individuals who spoke or attended either rally.  It cannot be said that the failure to report on Mr. Hoffa as a speaker at these events is in violation of the Rules. 

The Hoffa protest also specifically mentions an article contained on pages 2 and 3, entitled “The Future of Teamster Reform” and subtitled “Why You Should Take Part in Choosing  Delegates to the 1996 International Union Constitutional Convention.”  The article begins with three short introductory paragraphs: 

Every Teamster has a stake in the upcoming elections to choose Local Union delegates to the 1996 International Union Convention. 

The Convention can make changes in the Teamsters International Union Constitution.

That means the delegates will have the power to continue the clean-up of our union -- or to undo the reforms of the past three years and turn back to clock.

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The article then proceeds with a bullet-point listing of the accomplishments of “General President Carey or the General Executive Board” of the International Union under the broad topics of "Fighting Corruption" and "Cutting Waste and Outrageous pay for officials."  After the heading “Fighting Corruption,” the article reads:

The Teamsters Constitution now gives the General President and the General Executive Board who you elect the authority to clean up corruption.

Using that authority, General President Ron Carey or the General Executive Board have . . .              

The bullet-point listing beneath this heading directly attributes to Mr. Carey and his administration such accomplishments as fighting Mafia influence and establishing the Teamsters Ethical Practices Committee.

Under the heading “Cutting Waste and Outrageous Pay for Officials,” the introduction again attributes advances in this area directly to "General President Carey or the General Executive Board."  Thereafter, the bullet-point listing includes returning more than

$11 million per year to Local Unions and allowing Local Unions to save hundreds of thousands of dollars per year.

Each of these sections end with a question.  For example, under “Fighting Corruption,” the following question is presented in bold headline type:  “Do you want the 1996 Convention to protect or undermine the authority of the elected General President and General Executive Board to fight corruption?”  Similarly, after “Cutting Waste and Outrageous Pay for Officials,” the reader is asked, also in bold headline: “Do you want the 1996 Convention to protect or undermine the authority of the elected General President and General Executive Board to cut waste and outrageous pay for officials?”  Thus, the article connects Mr. Carey and the accomplishments of his administration to the upcoming delegate elections.

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Certainly this article is a call to the general membership to participate in the upcoming elections for delegates to the 1996 International Convention.  If the article had simply urged such participation and cited the important issues that would be debated, the Election Officer would have found it to be within the latitude afforded the union in reporting and editorializing about important union activities.  The article went beyond this permissible breadth, however, and incorporated references to Ron Carey and his accomplishments at a time when delegate elections, although few in number, were underway.

Furthermore, these accomplishments were praised in the context of the importance of running for delegate.  Since Mr. Carey needs five percent of the delegates to nominate him at the Convention, the article implicitly encourages members to become a delegate so they can vote to nominate Ron Carey.[18]  The linking of the accomplishments of Mr. Carey with the urging of members to become convention delegates makes this article more akin to material which might be found in a campaign flyer for Mr. Carey than in a news report or an editorial item.  The Election Officer finds this article crossed the fine line between reporting and campaigning, and, therefore, is a violation of Article VIII, Section 8(a) of the Rules.[19]  See, Postal Police, 744 F. Supp. at 418.

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B. The Teamster Leader[20]

The Teamster Leader, a union-financed newsletter, was first published on July 7, 1992.  It was published eight times in 1994 and two times thus far in 1995.  With a circulation of 46,500, The Teamster Leader is received by Local Union officials, stewards, retiree clubs and interested members. 

Mr. Martin contends that the January 20, 1995 issue of The Teamster Leader is larger in page length than other issues of the newsletter and contains a prominent article attacking the Central States Pension Fund, which “has long been part of [Carey’s] campaign for reelection.”  The January 20 newsletter is longer than those previously published.   The article on the pension fund, “Carey Calls For Pension Fund Trustees Who Are Accountable to Members,” is no more prominent than the 18 other articles that appear in the publication.  It appears on page six of the eight-page newsletter.  Mr. Middleton contends that the publication, taken as a whole, is in violation of the Rules.

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The Election Officer finds that neither the publication as a whole, the above-described article or picture, nor the fact that the publication’s size has been increased, violate the Rules.  Only one single picture of  Mr. Carey appears in the entire January 20, 1995 newsletter.  The article in question, like the article in the April/May issue of the Teamster, concerns a matter of interest to the members and does not mention the International officer or delegate elections.  See, Morris, P-1013-LU429-PHL (October 29, 1991).  Finally, a mere increase in a publication’s size in and of itself will not transform otherwise permissible communications into a violation of the Rules. 

C.  Teamster Warehouse News and the Brewery and Soft Drink News[21]

Teamster Warehouse News and the Brewery and Soft Drink News are two new IBT-produced and financed publications.  Teamster Warehouse News published a single issue in April 1995.  It is received by IBT members employed in warehouses, distribution centers, food processing plants and canneries.  Its stated purpose is to facilitate communication between members employed in these industries on collective bargaining issues and strategies.  The Brewery and Soft Drink News published a single issue on March 17, 1995.  It is received by members employed in the brewery and soft drink industries.  The publication’s stated purpose is to facilitate communication between Local Unions on negotiating strategies that have been effectively utilized by members and leaders.

                      The protesters do not cite any specific articles which they claim violate the Rules. The Brewery and Soft Drink News is four pages in length.  It contains 13 articles of varying lengths and subjects.  For example, bargaining with Pepsi-Cola; newly implemented alcohol testing rules; RC Cola workers win new contract; and the designation of International staff  to aid Local Union grievance handling.  The April 1995 issue of the Teamsters Warehouse News covers subject matters similar to that appearing in the Brewery and Soft Drink News.  It contains articles on contract victories in the industry; one-on-one network communicating; the IBT’s hiring of an industrial engineer; and new alcohol testing rules.

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Mr. Hoffa and Mr. Middleton charge that because neither Teamster Warehouse News nor the Brewery and Soft Drink News existed prior to 1991 election, the newsletters are violative of the Rules.  Moreover, Hoffa charges that the publications are being used to “distribute his lies and disinformation regarding the Teamsters Union.”  Neither protester cites specific examples of Rules violations.

The Election Officer finds that none of the articles, nor the newsletters taken as a whole, violate the Rules.  The mere creation of a new publication, without demonstrating that the publication is being used in violation of Article VIII, Section 8, is not a violation of the Rules.

D.  The Carhaul Contract Bulletin, Teamster Freight, and the Teamster UPS Update[22]

Like the Teamster Warehouse News and the Brewery and Soft Drink Update, the Carhaul Contract Bulletin, Teamster Freight, and the Teamster UPS Update target the members and Local Union officials in those particular industries.  The Carhaul Contract Bulletin began publication three years ago when the National Master Agreement was being negotiated.  Similarly, the UPS and freight bulletins were first published at the start of the negotiation of their respective national agreements.    The stated purpose of these bulletins is to assist in coordinating national efforts in these industries and to report on issues of concern.

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Mr. Middleton contends these publications, without citing any specific examples, were established and misused for campaign purposes.  Article XIV, Section 1 of the Rules places the burden on the protester to present evidence that a violation has occurred.  Vague assertions that entire magazines, or that all the magazines during a time period constitute campaigning, does not satisfy this burden.  A review of these publications shows they generally report on matters of concern to the industry and to the membership in general, and does not show utilization of these publications for campaign purposes in violation of the Rules.             

E.              Cleaning Up the Teamsters Union: A Three-Year Progress Report[23]

In February 1995, Mr. Carey issued a three-year progress report with 24 pages of text and eight pages of appendices which are a listing of International Union trusteeships as of April 1995.

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The report begins with an introduction by Mr. Carey which addresses the “enormous” changes he and his General Executive Board have made since he took office in February 1992.  He writes, for example, “We are actively attacking corruption, expanding membership involvement, fighting for better contracts and pensions, and putting the union’s own house in order.”  He details the accomplishments of his administration and the reforms he and the International Union would hope to implement in the “coming year.”  From pages 1-24, Mr. Carey then details his efforts in all of the areas touched upon in the introduction:  fighting  corruption in Local Unions; correcting Local Union election improprieties; reversing past management; controlling costs; more muscle for members; less fat for officials; reforming members’ grievance panels; improving health and safety; maintaining high standards in industries; using new approaches to win better contracts; organizing through member involvement; and grassroots political action.  There are repeated references to Mr. Carey alone and in conjunction with the General Executive Board, Local Unions and members.  All of the subjects included in the report had been previously reported in the International Union publications and videotapes.  The report was sent to individual union members.

Mr. Hoffa, Mr. Middleton and Mr. Theodus all contend the publication and distribution of this report is in violation of the Rules.  Mr. Hoffa in particular argues that this document is in the class of misused publications prohibited in Yablonski due to the excessive use of Mr. Carey’s name, while “[f]ew other union members are mentioned, other than in a disparaging manner.”  Mr. Hoffa also compares the accomplishments enumerated and attributed in this publication to Mr. Carey to a variation on the October 1994 Teamster Pride letter.  Thus, Mr. Hoffa argues that this report is campaign propaganda because it speaks through a purportedly legitimate report to the members of the same accomplishments Mr. Carey includes in his campaign propaganda. By comparing the documents, Mr. Hoffa contends that the publication is an obvious misuse of International funds to promote Mr. Carey’s candidacy.

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The Election Officer has carefully reviewed this argument and that of the other protesters.  As set forth above, the Election Officer finds that an article in the July/August of Teamster magazine which praised Mr. Carey’s accomplishments in the context of the importance of running for delegate was in violation of the Rules.  There, the article was published when the delegate elections were underway.  Thus, linking of Mr. Carey’s accomplishments with urging of members to be convention delegates makes the article more akin to campaign material than a news report or an editorial.  The three-year progress report, however, while clearly applauding Mr. Carey’s accomplishments, does not connect them to the upcoming International Officer or delegate elections.  Moreover, the progress report, being a report by Mr. Carey of the accomplishments of his administration, is similar to a “State of the Union” address, and is not of the type which has been held to be campaigning.  Balanoff, 569 F. Supp. at 973.

Mr. Carey has a right and a responsibility to discuss the progress of the union with its members.  Mr. Carey not only has those duties enumerated in the IBT Constitution but also is responsible for ensuring that the "IBT. . . be maintained democratically pursuant to the Consent Decree with integrity, and for the sole benefit of its members and without unlawful outside influence[.]"  U.S. v. Int’l Bhd. of Teamsters, 88 Civ. 4486 (D.N.E.), slip op. at 2.  As such, this report is  “proper reporting of the facts, statements of interest to the members, and newsworthy activities of incumbents engaged in matters of interest to the members.” Postal Police, 744 F. Supp. at 421. 

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While such a document may well be treated as campaign material if it had been issued to members later in the campaign, its issuance, in February 1995, is a statement of interest to the members.  See, Postal Police, 744 F. Supp. at 418 (“Considered under the totality of the circumstances, otherwise permissible statements may take on a different hue when viewed against the backdrop of an election campaign.”).[24]  Even though the Election Officer concludes that Mr. Carey was a candidate when the report was published, she "cannot conclude that as a consequence all reporting concerning an incumbent official is to be treated as impermissible campaigning for an incumbent candidate."  New Watch-Dog Comm., 478 F. Supp. at 1251.                Nor does the Election Officer find the report persuasive evidence of campaigning because Mr. Carey focused on many of the same matters in the Teamster Pride letter.  Just because Mr. Carey may use his campaign literature to praise his accomplishments does not automatically make the reporting of those accomplishments to the members campaigning.  As one Court has stated, "[P]articipants must have some latitude to speak freely about matters of current concern to the members, although these may often be campaign issues as well, and even though their statements may be with that fact in mind."  Metro. Dist. of Carpenters, 797 F.2d at 145.

III.  Overnite Trucking Campaign

In P-010-IBT-PNJ, Mr. Martin argues that Mr. Carey violated the Rules when the union expended IBT resources on a videotape documenting a rally in Louisville, Kentucky.   Mr. Martin characterizes the rally and the video as “political.”  The IBT characterizes the videotape, instead, as an organizing tool and the rally as a legitimate union activity.

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The Election Officer’s investigation reveals[25] that the event was nonpartisan in nature. The videotape featured a rally of rank and file members and nonunion workers seeking union representation.  Mr. Carey spoke to the rally about the accomplishments of the union (for example, eradication of corruption) and the organizing efforts and initiatives of the International Union.  Mr. Carey’s speech was interspersed with overnight workers.  Behind the workers, but not behind Mr. Carey during his speech, was a banner that read, “Overnite Teamsters Welcome General President Carey.”  It is not unusual for workers to welcome the leader of the union, and the banner does not transform the organizing rally into a campaign event.

Therefore, Mr. Martin’s protest in regards to the Overnite Trucking rally is DENIED.

IV.              Trucking Bozo Radio Show

Mr. Martin alleges in P-010-IBT-PNJ that IBT resources were utilized to notify members of Mr. Carey’s appearance on the Bozo Radio Show, a call-in radio program, which is listened to by truckers across the country.  Mr. Martin alleges that Mr. Carey’s appearance was “political” in nature and, therefore, the expenditure of IBT resources to publicize his appearance violated the election Rules.

The radio show was broadcast to an audience broader than the membership and was in a call-in-question-and-answer format.  Mr. Carey answered questions on a variety of issues but did not address the upcoming International officer or delegate elections.  The Election Officer finds that while IBT resources were expended to publicize Mr. Carey’s appearance on the radio program, the event was nonpartisan in nature and related to Mr. Carey’s role as principal spokesman for the IBT.

Therefore, Mr. Martin’s protest in regards to the Trucking Bozo Radio Show is DENIED.

V.              UPS Facility Tour

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Mr. Martin alleges in P-10-IBT-PNJ that because Mr. Carey toured a UPS facility in Louisville, Kentucky, other candidates for IBT office should be granted equal access to such facilities.  There is no contention that Mr. Carey engaged in campaign activity while visiting the UPS facility.  As General President, it is reasonable that Mr. Carey would tour facilities in which the union represents the workers.  The Election Officer finds the tour was not in violation of the Rules, and therefore, this portion of Mr. Martin’s protest is DENIED.

VI.              Organizing Flyer

Mr. Hoffa in P-022-IBT-PNJ alleges that a flyer produced by the IBT’s organizing department entitled, “We’ve Got to Work Together,” is political campaign material printed and distributed by Mr. Carey using union resources.

The Election Officer’s investigation examined both the content and the circumstances surrounding its distribution of the material throughout the IBT.  In fact, the Election Officer found that several flyers of the type complained about by Mr. Hoffa were widely circulated by the IBT.  Many of the flyers contained mail-back postcards for individuals who wish to aid the union’s organizing efforts -- a commonly accepted organizing tactic.  Thus, rather than constituting prohibited campaign material, the Election Officer finds that the flyer’s content reflects the union’s legitimate institutional involvement in organizing new members into the union.

Therefore, Mr. Hoffa’s allegations are not supported by the evidence, and his protest in regards to the organizing flyers is DENIED.

VII.              Allegations of Campaigning by Mr. Carey and members of the IBT Staff

Mr. Middleton in P-048-IBT-PNJ contends Mr. Carey engaged in political campaigning using union resources in Phoenix, Seattle, Detroit, Milwaukee, Chicago, Columbus, Ohio and Charlotte, North Carolina; and that union resources were utilized to support the campaign activities of IBT staff members on behalf of Mr. Carey, especially Robert Muehlenkamp and William Hamilton.

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Mr. Middleton has not presented any evidence to support these allegations.  This portion of  Mr. Middleton’s protest is, therefore, DENIED.

VIII.              Pattern and Practice Allegations

Mr. Hoffa and Mr. Middleton claim not only that certain articles, publications, and conduct constitute campaigning, but that taken together, these Rules infractions demonstrate a pattern and practice of campaigning by Mr. Carey.  For example, during the investigation, Mr. Hoffa submitted to the Election Officer the previously-mentioned letter dated October 1994 from Mr. Carey on Teamster Pride letterhead.  The letter discusses the upcoming 1996 International officer elections, and seeks support for Mr. Carey and his continued reforms.                There is no question that the letter mentions and lavishly praises Mr. Carey and his administration on many of the same issues -- e.g., cleaning up the union, trusteeship of Local Unions, grievance reform, model bylaws, improved national contracts, etc. -- which Mr. Hoffa has repeatedly objected to being reported in the magazine and other publications.  Mr. Hoffa argues that this campaign letter cites as successes of the Carey administration the same issues which Mr. Carey uses the International publications reported upon.  In fact, Mr. Hoffa attached a chart to his submission to the Election Officer which compared the number of times since March 1995 the Teamster magazine has mentioned the same issues as in the October 1994 letter. 

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The investigation by the Election Office included a review of International magazine going back to the onset of Mr. Carey’s administration and has found these same issues repeatedly mentioned and reported on throughout Mr. Carey’s tenure.  Most of these issues, while referred to in Mr. Carey’s campaign letter, also appear to be recurrent themes throughout his tenure in office (even prior to the March 1995 issue of Teamster, which Mr. Hoffa cites as the start of the pattern of campaigning through union publications).  "Cleaning up the Union,"[26] local union trusteeships,[27] grievance reform,[28] model bylaws,[29] improved national contracts,[30] improved political action - education,[31] stopping financial waste,[32] ending big salaries[33] and eliminating area conferences[34] are repeatedly mentioned in the International magazine.

While there is no question, as noted above, that articles have appeared in The New Teamster and the Teamster magazines addressing all of the issues set forth in the Teamster Pride letter, the Election Officer does not find that reporting on issues and newsworthy events of Mr. Carey’s administration demonstrates a pattern and practice of campaigning.

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In reviewing the publications, the Election Officer has only found, for the reasons set forth above, the article in the July/August issue of Teamster on “The Future of Teamster Reform” to be a violation of the Rules.   This violation is insufficient to demonstrate a pattern and practice of campaigning by Mr. Carey.  The Election Officer, therefore, denies this allegation in the protests of Mr. Hoffa and Mr. Middleton.

The protest in P-106-IBT-PNJ is GRANTED as to “The Future of Teamster Reform” article which appears on pages 2-3 of the July/August issue of Teamster and DENIED in all other respects. 

Based upon the foregoing, P-010-IBT-PNJ,  P-017-IBT-PNJ, P-022-IBT-PNJ,  P-048-IBT-PNJ,  P-077-IBT-PNJ,  P-088-IBT-SCE, and P-105-IBT-PNJ are DENIED.

IX.              The Remedy

When the Election Officer determines that the Rules have been violated, she "may take whatever remedial action is appropriate."  Article XIV, Section 4.  The Rules provide a wide range of examples of possible remedies, without providing any limitation.  The broad scope of her supervisory responsibility for the elections, as recognized by the Consent Decree and subsequent decisions of the Court, gives the Election Officer substantial discretion in formulating a remedy to fit the particular violation.  In fashioning the appropriate remedy, the Election Officer looks to such factors as the nature and seriousness of the violation, the violations’s potential for interfering with the election process, and which remedy will best protect the right of members to a free and fair election.

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The Election Officer has found that the inclusion in the July/August Teamster of an article written with the content and in the tone of “The Future of Teamster Reform” which appears on pages 2-3 is improper at this point in the election process when the election of delegates is underway in some Local Unions.  The protesters have requested the remedy of equal space and equal prominence to other candidates in a subsequent issue of Teamster.  The Election Officer, however, recognizes that it is still quite early in the International Union officer and delegate election process, and that accredited candidates will have access to the Teamster to present their views in the October/November 1995 and March 1996 issues.  Nominated candidates will have their campaign material appear in each of the September, October and November 1996 issues of the magazine.

In light of the above, the Election Officer believes the appropriate remedy is to require the IBT to publish the "Notice to Members" attached to this decision as Exhibit A, in the October/November 1995 edition of Teamster.  The notice shall be not less than one full page in length, shall be located on either page one or two of the magazine, and shall be subject to the prior review and approval of the Election Officer as to the manner of its presentation, including the size and variety of typeface by which it is presented.

In a letter brief submitted after remand, Mr. Hoffa urges that the proper remedy is that he be given equal space in the magazine to set forth his views.  The Election Officer does not believe such a remedy is warranted here, where the violation was not egregious, where it took place at the very beginning of the election process, and where accredited candidates still have ample opportunity to have their campaign material published in the magazine.  A similar request for equal access to the union magazine by a challenger was rejected in Yablonski, 305 F. Supp. at 875, although there the violation found by the Court was far more serious.

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Mr. Hoffa also argues that the Notice ordered above should be signed by Mr. Carey as the wrongdoer in the same way that parties who commit unfair labor practices are ordered to sign and post notices by the National Labor Relations Board (NLRB).  While NLRB procedure may be a useful guide in some instances, the Election Officer has a different task than that of the NLRB and derives her authority from different sources.

In this case, the Election Officer believes that a notice signed by her is proper since it is intended not just to announce the finding of a violation, but to instruct the membership on the nature of the violation and place it in the context of the current election process.  Such a notice is most appropriately signed by the Election Officer.[35]

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Mudge, Rose, Guthrie, Alexander & Ferdon

180 Maiden Lane, 36th Floor

New York, NY  10038 

Fax (212) 248-2655

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Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:               Election Appeals Master Kenneth Conboy

Regional Coordinators

EXHIBIT A

TO ALL MEMBERS OF

THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS

FROM ELECTION OFFICER BARBARA ZACK QUINDEL

The Election Officer has the authority to supervise all phases of the International Union delegate and officer elections.  These elections, including the campaigning process, are governed by the Rules for the 1995-1996 IBT International Union Delegate and Officer Election ("Rules").

The July/August issue of Teamster magazine contained an article entitled “The Future of Teamster Reform” on pages 2-3. The stated purpose of the article was to advise the membership of the International Union of the importance of the upcoming election for delegates and alternate delegates to the International convention to be held by each IBT Local Union.  The article contained references praising the accomplishments of General President Ron Carey who is running for reelection.  The delegate election process began in July 1995 for several Local Unions in the seasonal food industry.  Because the article was published at a time when the delegate election process had begun, the Election Officer found this article to be union-financed campaigning in violation of the Rules and ordered that this Notice be placed in the Teamster.

The Teamster magazine is certainly permitted to report and discuss its views on events and programs of the union.  In doing so, it may report on officers and representatives who are involved, so long as such coverage is not excessive and does not inappropriately connect their actions with an appeal to the members to reelect them.  Publications financed by the International Union or Local Unions may not  be used to campaign on behalf of candidates for delegate or International office.  Starting in this issue, and in accordance with the Rules, space will be set aside to print campaign material of the individual candidates for International office.  However, the campaign material is separate and apart from the articles, pictures and reports published by the International Union.

All members of the IBT are encouraged to participate in the process of

selecting delegates to the 1996 International Convention. The Convention and the process of electing the delegates and alternate delegates to represent each Local Union in attendance are important union business and deserve your attention.  Whatever your views regarding the future of the IBT,  you are strongly urged to take part in the election process.

BARBARA ZACK QUINDEL

Election Officer