Protest Decisions

November 16, 1995

VIA UPS OVERNIGHT

James P. Hoffa

November 16, 1995

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI 48098

William W. Hamilton, Jr., Director

Legislative and Political Action

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

Tom Sever, General Secretary-Treasurer

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

George Geller

30833 Northwestern Highway

Suite 200

Farmington Hills, MI 48334

James P. Hoffa

November 16, 1995

Page 1

Re:  Election Office Case No. P-011-IBT-PNJ

Gentlemen:

A pre-election protest was filed with the Election Officer pursuant to Article XIV,

Section 2(a) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).[1]  By letter dated March 10, 1995, James P. Hoffa alleged that

James P. Hoffa

November 16, 1995

Page 1

William H. Hamilton, Jr., the IBT’s Director of Legislation and Political Action, used union resources to campaign on behalf of General President Ron Carey and against Mr. Hoffa, in violation of Article VIII, Sections 8(a) and 11(c) and Article XII, Section 1(b)(3) of the Rules.

Mr. Hoffa complains that on February 16, 1995, Mr. Hamilton sent (1) a cover letter,

(2) a January 28, 1995 newspaper article from the Twin Cities Star Tribune, and (3) a flyer entitled “Building a Clean, Democratic Teamsters Union:  An Overview” to members of the United States Congress to promote the candidacy of Mr. Carey and to attack the candidacy of Mr. Hoffa.  Mr. Hoffa specifically cites text in the flyer as attacking his candidacy.

In addition, Mr. Hoffa charges that the second paragraph of Mr. Hamilton’s letter supports Mr. Carey’s candidacy by “puffing” his accomplishments and by portraying him as a person who was “elected directly by the membership . . . fought an uncompromising battle to eliminate corruption, waste and organized crime influence in the union and, not surprisingly, has made some enemies.”  Finally, Mr. Hoffa contends that the letter and flyer were produced using union equipment, facilities, funds and postage.

In response, the IBT does not deny that Mr. Hamilton wrote the February 16 letter and that the flyer was IBT-produced.  The IBT contends that the documents, which were delivered to congressional representatives, had a legitimate union purpose unrelated to the IBT elections and the candidacies of Mr. Hoffa or Mr. Carey.  The IBT asserts that Mr. Hamilton’s letter was prompted by inquiries received from members of Congress and their staffs regarding a “Luncheon with Teamster Representatives” held on January 17, 1995 at the Hyatt Hotel, which was sponsored by the Real Teamsters Caucus (“RTC”).  The IBT notes that the letter was not sent to IBT members, and it specifically responded to “misperceptions” and “damage” caused by the materials that RTC meeting attendees distributed on Capitol Hill.

This protest was investigated by Regional Coordinator Peter V. Marks, Sr.  The Election Officer’s investigation included a review of the text of the February 16 letter, flyer and news-paper article and a meeting with Mr. Hamilton in which he supplied the Election Officer with documents pertaining to the documents protested.  

James P. Hoffa

November 16, 1995

Page 1

The text of the letter is primarily directed towards clarifying who sponsored a congres-sional luncheon with Teamster representatives on January 17.  Divided into five paragraphs covering two pages, the first paragraph relates that an “unusual ‘Luncheon’” took place on January 17.  The second paragraph states that the “luncheon was not sponsored or endorsed” by the IBT, but by “officials who oppose President Carey’s aggressive reforms and anti-corruption policy.”  The letter further states that Mr. Carey has “made some enemies” and that “[h]e has fought an uncompromising battle to eliminate corruption, waste and organized crime influences in the union . . . ”  The letter goes on to describe “strange events” that took place at the luncheon, including a keynote address by a former associate of a “political extremist and convicted felon,” and the attendance of George Geller, who is identified as a defendant in “the racketeering and corruption lawsuit brought against the Teamsters General Executive Board by the Justice Department.”[2]   It also states that luncheon speakers were lobbying on Capitol Hill for “reduced vigilance” over the IBT by the Justice Department and the federal courts.  In the fourth paragraph, the letter states:  “Ron Carey has been working hard to return this union to its members and to hasten the day when special government oversight is no longer needed.  We regret that holdover officials from the Teamsters’ corrupt past are misleading members of Congress.”  The last paragraph urges the representatives to contact the IBT “if you are contacted by groups or individuals attempting to mislead you about [IBT] goals and policies.”

The Star Tribune article discusses new tacks for greater rank-and-file involvement that unions are using in the current national political climate.  The article identifies Mr. Carey as a spokesman of this message.   The article characterizes a speech scheduled by Mr. Carey and quotes him on the efforts of rank-and-file members as organizers. It also quotes Mr. Carey on IBT efforts at “getting rid of corruption . . . getting rid of inefficiency.”

Finally, the two-page flyer purports to describe chronologically “the significant events that led to the election of Mr. Carey and the clean sweep of the national Teamsters union leadership.”  This is followed by six bold-type subheadlines.  “Consent Decree Brings Demo-cracy” describes how the Consent Order provided for the first rank-and-file elections, and relates that “charges of Mob influence” led to such elections.  “The Independent Review Board” relates the IRB’s role pursuant to the Consent Order.  “Carey Cleans Up Union” lists “reforms” initiated by Mr. Carey, including:  the trusteeship of approximately 40 local unions, the creation of an Ethical Practices Committee, the overturning of some local union elections and the monitoring of pension-fund abuse, and the elimination of the IBT’s former area conferences.  “Smear Campaign Strikes Out” details charges leveled against Mr. Carey and the IRB’s investigation of those charges.  “Who Makes Up the IRB?” presents background information on the IRB’s three members.

The section of the flyer protested by Mr. Hoffa, “Who Are the Critics of Carey and the Independent Review Board?” reads, in pertinent part, as follows:

Who are the Critics of Carey and the Independent Review Board?  Not surprisingly, many are some of the same people, and their family and friends, who brought the union into disgrace by aligning it with Mafia and other outlaw figures.  Some represent a second generation of that infamous era -- like James P. Hoffa Jr., a lawyer and member of Detroit Local 337.

James P. Hoffa

November 16, 1995

Page 1

Some represent a weird, sometimes violent strain in American political life:  followers of convicted felon Lyndon LaRouche.  And some are just guys who liked having huge salaries and triple pensions and can’t get used to democratic trade unionism.

The use of union-financed communications to promote a member’s candidacy for International officer or delegate is prohibited by the Rules.  Article VIII, Section 8(a) states:  “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 . . .”   Interpreting this article of the Rules, the Election Officer has adopted the tone, content and timing test.  She also examines the context in which the communication took place.  See Martin, et al., P-010-IBT-PNJ (August 17, 1995) et seq., aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995).

In relevant part, Article VIII, Section 11(c) of the Rules reads:

[u]nion funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in campaigning unless the Union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance.

Article XII, Section 1(b)(3) similarly prohibits the use of union funds to promote the candidacy of any individual.

An analysis under each of these sections of the Rules must begin by determining whether or not the subject of the communication was a “candidate” at the time of the communication.  The Election Officer has found previously that both Mr. Carey and Mr. Hoffa were candidates at the time of the communications protested here.[3] Thus, the issue is whether any of the protested communications support Mr. Carey’s candidacy or attack Mr. Hoffa’s candidacy.

              The Election Officer does not find that the letter supported Mr. Carey’s candidacy.  Large portions of the letter do not mention Mr. Carey, but instead seek to clarify who sponsored a congressional luncheon with Teamster representatives on January 17, 1995.  Other references in the letter about opposition to Mr. Carey’s policies, his direct election by the membership and his efforts to eliminate corruption pertain to issues of legitimate concern to the institution and to the membership.  The text about Mr. Geller as a defendant in the racketeering case between the IBT and the U.S. Government, placed in the context of explaining the goals of those who sponsored the luncheon, do not constitute campaigning.  Finally, the sentence stating that “Ron Carey has been working hard to return this union to its members and to hasten the day when special government oversight is no longer needed” relates to Mr. Carey’s role as general president.

The newspaper article accompanying the letter does not constitute campaigning.  The subject matter pertains strictly to issues of legitimate union concern--organizing and the benefits of greater rank-and-file participation in union affairs.  Moreover, the Star Tribune is an independent publication which is not union-financed.  Thus, even if the content of the article could be construed as campaigning, the publication itself would not violate the Rules, only the union-financed distribution of it.

James P. Hoffa

November 16, 1995

Page 1

The flyer, however, contains references connecting “Mafia and other outlaw figures” to Mr. Hoffa as “a second generation of that infamous era.”  The IBT argues that it was permissible for Mr. Hamilton in his capacity as Director of Legislation and Political Action to clarify “misperceptions” and “damage” caused by the materials distributed on Capitol Hill.  The Election Officer agrees that the IBT had an institutional interest to clarify the sponsorship of the event, and in doing so, in some circumstances it may be appropriate to attack the motives and backgrounds of those who advocate certain positions.  Nevertheless, in the content and context of this flyer, the references to Mr. Hoffa were of “attenuated relevance” to issues of otherwise legitimate institutional interest to the union.  See Hoffa, P-093-IBT-PNJ

(October 12, 1995), aff’d in part, rev’d in part, 95 - Elec. App. - 31 (KC) (October 31, 1995). Therefore, the flyer is an example of the type of candidacy attack that violates Article VIII, Sections 8(a) and 11(c), and Article XII, Section 1(b)(3) of the Rules.

The IBT offers one additional defense to Mr. Hamilton’s conduct.  It argues that a press release sent out by Joint Council 43 to members of Congress announcing the event constitutes a use of union resources “calculated to affect a candidacy.”  Thus, the IBT argues that Mr. Hoffa “comes to the Election Officer with unclean hands” because it provoked

Mr. Hamilton’s improper response.

“Unclean hands” is an equitable defense which asks a court to not grant relief to a party seeking redress who themselves have engaged in unconscionable conduct.  Even assuming the Election Officer would consider such an argument raised as a defense rather than a protest, the IBT has failed to show that union resources were used for campaigning.

In consideration of the foregoing, Mr. Hoffa’s protest is GRANTED as it pertains to the flyer, and DENIED as it pertains to the letter and the newspaper article.

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 rights of members to a free and fair election.

James P. Hoffa

November 16, 1995

Page 1

In light of these findings, Mr. Carey’s campaign is ordered to reimburse the IBT for the expenses incurred by the union in distributing campaign literature.  In computing such expenses, Mr. Hamilton shall submit to the Election Officer within seven (7) days of the date of this decision, an affidavit stating the following relevant facts:  (1) Mr. Hamilton’s annual salary; (2) the number of hours Mr. Hamilton spent researching, preparing and distributing the violative material; (3) the names and salaries of other IBT staffers who helped research, prepare and distribute the violative material and the number of hours, if any, these staffers spent doing so; and (4) what production expenses were incurred by the IBT in distributing the flyer, including, but not limited to, facsimile, postage and telephone.

Upon receipt of Mr. Hamilton’s affidavit, the Election Officer will issue a supple-mental opinion.  In the supplemental opinion, the Election Officer will direct the Carey campaign to repay an amount ordered by the Election Officer to the IBT for its campaign contribution.

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.

Latham and Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

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:               Kenneth Conboy, Election Appeals Master

Peter V. Marks, Sr., Regional Coordinator