July 19, 1995
VIA UPS OVERNIGHT
Michael Ruscigno, et al.
July 19, 1995
Page 1
Michael Ruscigno
302 Summit Avenue
Jersey City, NJ 07306
James Jacob
1377 Sassaquin Avenue
New Bedford, MA 02745
Darryl Sullivan
2059 Richmond
Arlington, TX 76014
Teamsters Local Union 20
435 South Hawley Street
Toledo, OH 43609
Paul Levy, Esq.
Public Citizen Litigation Group
Suite 700
2000 P Street N.W.
Washington, D.C. 20036
Michael Ruscigno, et al.
July 19, 1995
Page 1
RE: Election Office Case No. P-067-LU20-EOH
Gentlemen:
A pre-election protest was filed by Darryl Sullivan (a member of Local Union 745), Michael Ruscigno (a member of Local Union 138), and James Jacob (a member of Teamsters
Local 251) pursuant to Article XIV, Section 2(a), of the Rules for the 1995-1996 I.B.T.
Michael Ruscigno, et al.
July 19, 1995
Page 1
International Union Delegate and Officer Election (“Rules”).[1] By letter dated May 24, 1995, the protesters allege that Local Union 20 made union and employer campaign contributions when it used its publication, Team and Wheel, to improperly support candidates for delegate and International office.
The protesters specifically cite a number of issues of Team and Wheel: the March-April 1993, January-February 1993, and April-July 1994 issues for containing pictures and favorable references to Local Union 20 President Les Singer and Secretary-Treasurer Dan Farbrother; the August-September 1994 and January 1995 issues for containing front page coverage and complimentary pictures of James Hoffa, a candidate for General President; and finally, the January-February 1993, March-April 1993, and April-July 1994 issues for containing "sprinkled" attacks against General President Ron Carey.
Local Union 20 did not present any information in response to these charges.
The protest was investigated by Election Office Staff Attorney Helene Boetticher.
The Rules, at Article VIII, Section 8, provide the following prohibition:
(a) 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, except as authorized by Sections 8 and 9 of this Article. . .
The Rules continue by setting forth various criteria to be used in determining whether a union-financed publication has violated this prohibition. Using pictures or articles indicating support of a candidate and featuring a candidate to the exclusion of others are two examples of the criteria listed in Article VIII, Section 8.
Michael Ruscigno, et al.
July 19, 1995
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In determining whether a union-financed publication violates this prohibition, the Election Officer must first determine if the subject of the communication was a "candidate"[2] when the communication was made. If it is determined that the subject of the communication was a candidate, the Election Officer will then analyze whether the union-financed publication is being used to "support or attack" the candidate in light of the criteria enumerated in Article VIII, Section 8(a).
In her analysis, the Election Officer is guided by previous cases that applied Section 401(g) of the Labor-Management and Reporting Disclosure Act of 1959, as amended (“LMRDA”). 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[3].
To ascertain whether a communication constitutes promotion of a candidate in violation of Section 401(g), the courts have looked to the “tone, content and timing” of the communication. See, Donovan v. Postal Employees, 566 F. Supp. 529, 533 (D.D.C. 1983); Usery v. Int’l Org. of Masters, Mates & Pilots, 528 F.2d 946, 949 (2d Cir. 1976).
The courts have clarified Section 401(g) with regard to timing. For example, in Dole v. Federation of Postal Police, 744 F. Supp 413, 420 (E.D.N.Y. 1990), the court drew a distinction between a newsletter that was distributed well over seven months before nominations and thus removed from the "heat of the [ ] election campaign," and one distributed within two months of the election. The court also provided direction in evaluating the timing of a communication:
Michael Ruscigno, et al.
July 19, 1995
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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. And while a union-financed publication may cover "factual notices or statements of interest to members," and "newsworthy activities of an incumbent [or challenger] running for office," the line between reporting such facts or activities and between promoting or attacking a candidate can be fine. Thus even "coverage of newsworthy activities of the incumbent" may be so excessive as to render it campaign literature on behalf of the incumbent.
Id., at 418 (citations omitted).
In Camarata v. Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979), the court rejected the plaintiff’s claim that a union publication constituted prohibited campaign material, and noted that the material was not published “at a time proximate to the election as to which relief is sought.”
Decisions of the 1991 Election Officer also provide guidance in determining whether a union-financed publication has violated the prohibition by supporting or attacking a candidate. See, Morris, P-1013-LU429-PHL (October 29, 1991), in which the Election Officer examined whether "the newsletter, taken as a whole, provides support to [a] particular candidate." In Durham P-250-IBT, (February 5, 1991), the Election Officer utilized a newsworthiness test in examining whether or not the subject matter of the article "affect[s] a significant number of the IBT membership." The Election Officer also considered whether the subject matter/event "received regular coverage" in past issues of the publication and, taken as a whole, whether the "kind and quality of the articles in the editions of the magazine. . . [were] consistent with previous editions published[.]"
With respect to the allegations regarding the coverage of President Les Singer and Secretary-Treasurer Dan Farbrother in the March-April 1993, January-February 1993, and April-July 1994 editions of Team and Wheel, there is no evidence that either Mr. Singer or Mr. Farbrother was a candidate for delegate or International office at the time of these publications. Moreover, a review of the publication did not reveal any unusual coverage of the activities of these two Local Union officers.
The protesters also cite improper front page coverage and complimentary pictures of Mr. Hoffa in the August-September 1994 and January 1995 issues of Team and Wheel. The investigation by the Election Officer indicates that Mr. Hoffa was a candidate within the meaning of the Rules in September, 1994 and January, 1995. It must, therefore, be determined whether these publications improperly promote Mr. Hoffa's candidacy.
The August-September 1994 article describes the September 5, 1994 Labor Day parade in Toledo, Ohio, which appears to have been sponsored by several unions which make up the United Labor Committee. Mr. Hoffa appeared in the parade as the Parade Grand Marshall. The pictures and the text praise Mr. Hoffa for his role. There is also a favorable reference to Mr. Hoffa in the President’s Column.
Michael Ruscigno, et al.
July 19, 1995
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In evaluating the coverage of Mr. Hoffa at the Labor Day parade, the Election Officer reviewed Labor Day parade coverage in the 1992 and 1993 editions of Team and Wheel. Based upon this review, it appears to be customary for the Local Union’s paper to publish an announcement in the issue prior to Labor Day and then to give coverage, always with pictures, following the celebration. In 1992, there were more than three full pages devoted to the event. The Labor Day parade was given a full page in 1993. Thus, the full-page coverage of the 1994 Labor Day parade was consistent with previous coverage of the event. The articles and accompanying photographs concern a valid journalistic subject that was newsworthy and of interest to the membership. See, Durham, P-250-IBT (February 5, 1991).
The January 1995 issue consists of four pages. Mr. Hoffa’s name appears only on the first page, accompanied by two pictures (Mr. Hoffa being introduced at a retirees dinner; Mr. Hoffa with Local Union 20's Vice President and a Local Union member). While the references in the article are very complimentary to Mr. Hoffa -- noting his "charisma and knowledge" and his "gracious" attitude-- absent any references to his candidacy or to the election, the Election Officer finds that these comments made at this time do not cross the fine line between inappropriate support of a candidate and the normal reporting of a union function.
Finally, the protest alleges attacks upon General President Carey were sprinkled throughout the January-February 1993, March-April 1993 and April-July 1994 editions of Team and Wheel. It does not appear that Mr. Carey was a candidate for International office at the time of the publications in 1993 or 1994.
Nevertheless, the 1993 references in the protest are to a President’s Column which contained a factual discussion concerning a dispute with the machinist’s union which was newsworthy and of interest to Local Union 20 members. The April-July 1994 issue does not mention Mr. Carey’s candidacy or the 1996 election. The President’s Column focuses on the abolition of the conferences and on the loss of the current strike fund. Clearly, these are topics of interest to Local Union 20. Furthermore, the protested articles were published at a time remote from the 1995-1996 International officer and delegate elections.
Based upon the timing, tone and content of the protested 1993 and 1994 articles that appeared in the Team and Wheel, there is no basis for a finding of a violation of the Rules. For the foregoing reasons the protest is DENIED.
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:
Michael Ruscigno, et al.
July 19, 1995
Page 1
Kenneth Conboy, Esq.
Mudge, Rose, Guthrie, Alexander & Ferdon
180 Maiden Lane, 36th Floor
New York, NY 10038
fax (212) 248 2655
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
[1]This “reach-back” protest was filed within the thirty day period following the final promulgation of the Rules on April 24, 1995, and alleges violations occurring prior to the issuance of the Rules. The Rules at Article XIV, Section 2(a), state:
Protests regarding violations of the Labor-Management Reporting and Disclosure Act, as amended] (including violations of the IBT Constitution) allegedly occurring prior to the date of issuance of the Rules and protest regarding any conduct allegedly occurring within the first twenty-eight (28) days after issuance of the Rules must be filed within thirty (30) days of the date of issuance, or such protests shall be waived.
[2] Under the Rules,"candidate" is defined as:
[A]ny member who is actively seeking nomination or election for any Convention delegate or alternate delegate position or International Officer position. The term includes any member who has accepted any campaign contribution as defined by the Rules or made any expenditure, where the purpose, object or foreseeable effect of the contribution or expenditure is to influence the election of that member to any such position.
[3]The regulations promulgated by the U.S. Department of Labor at 29 C.F.R. § 452.75 interpret 401(g) as follows:
The provisions of section 401(g) prohibit any showing of preference by a labor organization or its officers which is advanced through the use of union funds to criticize or praise any candidate. Thus, a union may neither attack a candidate in a union-financed publication nor urge the nomination or election of a candidate in a union financed letter to the members. Any such expenditure regardless of the amount, constitutes a violation of section 401(g).