Protest Decisions

September 7, 1995

VIA UPS OVERNIGHT

James Jacob, et al.

September 7, 1995

Page 1

James Jacob, et al.

September 7, 1995

Page 1

Re:  Election Office Case No. P-071-LU391-EOH

Gentlemen:

A pre-election protest was filed pursuant to Article XIV, Section 2 (a) of the Rules for the 1995-1996 I.B.T. International Union Delegate and Officer Election (“Rules”) by James Jacob, a member of Teamsters Local 251, Michael Ruscigno, a member of Teamsters Local 138,

James Jacob, et al.

September 7, 1995

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and Darryl Sullivan, a member of Teamsters Local 745.[1]  The protesters contend that The Voice of Teamsters 391, a newspaper published by Local Union 391, has improperly opposed the candidacy of General President Ron Carey and supported the candidacy of Local Union 391 President R. V. Durham for general president. The protesters specifically cite articles in the November/December 1993, January/February 1994, March/April 1994, June/July 1994, August/September 1994, November/December 1994, and March/April 1995 issues of the newspaper.

Election Office Staff Attorney Helene Boetticher investigated the protest.

The Rules, at Article VIII, Section 8(a), provide 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, except as authorized by Sections 8 and 9 of this Article. . .”  Section 8(a) also sets forth specific illustrations of improper support by a union-financed publication.

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 when the communication was made.  See, Ruscigno, P-067-LU20-EOH (July 19, 1995), Martin,

et al. P-010-IBT-PNJ, et seq. (August 17, 1995).

The Election Officer has previously determined that Mr. Carey was a candidate when the November/December 1994 and March/April 1995 issues of The Voice of Teamsters 391 were published.  See, Martin, supra.  By letters dated June 1, 1995 and June 19, 1995 from his attorney, Mr. Durham states that he is “an announced non-candidate” who received coverage in the Local Union newspaper “commensurate with his leadership of a local union with over 8,200 members.”  The Election Officers finds Mr. Durham was not a candidate within the meaning of the Rules when the protested issues of The Voice of Teamsters 391 were published.

James Jacob, et al.

September 7, 1995

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The protesters contend that The Voice of Teamsters 391 repeatedly attacked Mr. Carey “in a manner calculated to prejudice members of Local 391, and other members to whom these newspapers may be circulated.”  They cite a four-sentence article in the November/December 1994 issue announcing that because of cost-control measures instituted by the Local 391 president, the Local Union did not have to raise dues in response to an assessment by the International Union.  The article states that the International is “continu[ing] to spend millions more that it takes in every month.”  Also in the November/December 1994 issue, the protesters cite a column printing excerpted remarks from a speech given at Local Union 391's shop steward seminar by International Vice President Sam Theodus.  The article states Mr. Theodus ran for office in 1991 on a slate with Mr. Carey but no longer supports Mr. Carey because of his “fail[ure] to deal with the union’s mounting money problems.”[2]  Mr. Theodus is critical of the International Union as being “ideologically fixated, almost bankrupt, continually operating with uncontrolled deficit spending, and applying band-aid fixes and show-case policies instead of real solutions.”  Mr. Theodus continues:

We are definitely a union in trouble, with too many political agendas and so much political hostility that is tearing us apart.

The “New” Teamsters continually blame the old for all of the union’s problems, because they are unwilling and, it appears, incapable of assuming their responsibility to solve these problems.

The protesters also cite a first-page article in the March/April 1995 issue criticizing Mr. Carey and the International leadership for their “ruthless drive to tighten their political control over the union” and “reign of terror” by dismantling the Area Conferences, requiring Local Unions to pay an “emergency” assessment, and planning to place “dozens of local unions, including Local 391, under trusteeship.”  Finally, the protesters cite the Local Union 391 president’s column in the March/April 1995 issue, which compares “[w]aste and corruption” at the International Union headquarters with the Local Union’s “solid financial ground,” and criticizes the “emergency assessment” imposed upon the Local Union by the International.

James Jacob, et al.

September 7, 1995

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In reviewing the protested articles, the Election Officer looks to the tone, content and timing to determine what constitutes campaigning.  See, e.g., Ruscigno, supra. The Election Officer also reviews the specific context in which the communication takes place.  See, Martin, supra.  As the Election Officer noted in Martin, as the incumbent general president, Mr. Carey is subject not only to favorable exposure of his activities as union leader, but must also bear criticism generated by virtue of his leadership. “[R]estrictions 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.”  Id.  Giving voice to views opposing the current leadership on matters of concern to union members serves the purpose of promoting democracy.

The protested articles and columns, however opinionated, were printed well in advance of the International delegate and officer elections.  The articles criticize then-current significant policy decisions by the International Union leadership concerning the union’s internal structure and finances.  Each of the articles find fault with the International Union’s leadership, ranging from criticism of the International Union’s finances in the November/December 1994 issue to the strong language describing the International Union’s decision to restructure as a “brutal political drive” in the front-page story in the March/April 1995 issue.  Just as Mr. Carey may conduct union business without having it labeled campaigning, local union publications may criticize those policies without having it labeled as campaigning.  See, e.g, Ruscigno, P-065-JC37-EOH (July 21, 1995) aff’d In Re: Sullivan,

95 - Elec. App. - 7 (KC) (August 14, 1995).

The Local president’s column in the March/April 1995, while critical of Mr. Carey, is addressed to the performance of his job.  The Local Union president has a “right and responsibility to exercise the powers of [his] office and to advise and report to the membership on issues of general concern.  In accordance with this responsibility, elected officials are entitled to use union publications to express their views. . .”  Camarata v. Int’l Bhd. of Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979).  Similarly, the views of International Vice President Theodus in the November/December 1994 issue are newsworthy because of his institutional stature.  The remarks of Mr. Theodus dealt with relevant union business.  See, Sheldon v. O’Callaghan, 335 F. Supp. 325 (S.D.N.Y. 1971).

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:

Kenneth Conboy, Esq.

Mudge, Rose, Guthrie, Alexander & Ferdon

180 Maiden Lane, 36th Floor

New York, NY  10038 

Fax (212) 248-2655

James Jacob, et al.

September 7, 1995

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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:               Kenneth Conboy, Election Appeals Master

J. Griffin Morgan, Regional Coordinator