Protest Decisions

              November 17, 1995

VIA UPS OVERNIGHT

James P. Hoffa

November 17, 1995

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI 48098

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

John Sullivan, Associate General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Teamster Magazine

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

James P. Hoffa

November 17, 1995

Page 1

Re:  Election Office Case Nos. P-202-IBT-EOH

Gentlepersons:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by James P. Hoffa, a candidate for general president.  The protester alleges that General President Ron Carey used the October/November 1995 issue of Teamster, a publication funded by the IBT, to promote his candidacy, in violation of the Rules.

In support of his protest, Mr. Hoffa cites as excessive coverage four photographs of Mr. Carey that appear throughout the magazine and photographs of Carey slate members Sergio Lopez, Carroll E. Haynes, Diana Kilmury and George Cashman.  In addition,

Mr. Hoffa contends that the article entitled “Your Rights at Stake” supports Mr. Carey's candidacy, in violation of the Rules.  Finally, Mr. Hoffa argues that the violations appearing in the October/November issue of Teamster are part of a “pattern and practice” of Rules violations that began in October 1994 and has manifested itself in “egregious violations” since.

James P. Hoffa

November 17, 1995

Page 1

The IBT responds that the photographs of Mr. Carey and his slate members are not numerically excessive because they represent less than 10 percent of the number of pictures printed in the issue.  Also, the IBT contends that the magazine has devoted a comparable amount of coverage to International vice presidents in the past and that the photographs are related to newsworthy activities of legitimate interest to the membership.  The IBT argues that the protested article does not violate the Rules because it does not make a connection between the International convention and Mr. Carey's candidacy.  According to the IBT, the article urges participation in the election process, cites important issues which will be debated at the convention, and “places the Convention and the issues delegates will face in a larger, nonpartisan historical perspective.”

The protest was investigated by Regional Coordinator Bruce Boyens.

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 or any person . . ."

The Election Officer has previously found Mr. Carey was a candidate within the meaning of the Rules prior to the time of the allegedly prohibited publications.  In addition, the members of the Ron Carey slate whose photographs appear in the publication are also all declared candidates.  The Election Officer, therefore, applies the criteria in the Rules and considers the tone, content, timing and the context of the publication in question.  Martin, et al., Case No. P-10-IBT-PNJ, et al. (August 18, 1995), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995); Ruscigno, Case No. P-067-LU20-EOH (July 19, 1995).  The Election Officer has previously recognized that where allegations of campaigning by an incumbent officer who is a candidate arise, she must distinguish between activity that constitutes performing the functions and duties of the incumbent’s office and campaigning.  Martin, supra. 

Photographs of Carey Slate Members

The protester alleges excessive photographic coverage of members of Mr. Carey's slate.  The protester describes this coverage as unprecedented and a form of free publicity.

The investigation disclosed, however, that the four protested photographs are reasonably related to the articles with which they appear and that those articles are newsworthy and of interest to the membership.  See Durham, Case No. P-250-IBT (February 5, 1991); Ruscigno, et al., Case No. P-067-LU20-EOH (July 19, 1995); Hoffa, Case No. P-140-IBT-PNJ (October 13, 1995) (consolidated with P-142-IBT-PNJ).

The protested photographs of Sergio Lopez, Carroll Haynes, and Diana Kilmury accompany a brief article about--and printed comments from--the Teamsters Civil Rights Conference held in Washington, D.C.  The conference concerned efforts by IBT members to build unity within the union and to fight discrimination.  As such, the event was newsworthy and of interest to the membership.

James P. Hoffa

November 17, 1995

Page 1

The photograph of Sergio Lopez on page 9 accompanies a report of comments he made at the IBT Civil Rights Conference.  Mr. Lopez is a co-chair of the Teamster Human Rights Commission.  As a result, statements made by him at the conference are relevant to reporting on the event as a whole.  The photograph of Mr. Lopez bears a reasonable relationship to the event reported and the statements he made.  Similarly, an identically-sized photograph of Carroll Haynes appears on the same page next to a report of comments made by Mr. Haynes at the conference.  Mr. Haynes was the chair of the conference.  Like Mr. Lopez, his statements at the conference are relevant to reporting on the event as a whole.  Also, like Mr. Lopez, the photograph of Mr. Haynes bears a reasonable relationship to the event reported and the statements he made.

Mr. Hoffa also protests a photograph on page 9 in which Diana Kilmury and an unidentified conference attendee appear.  Ms. Kilmury is a co-chair of the Teamster Human Rights Commission.  A statement made by Ms. Kilmury at the conference appears in the short article on pages 8 and 9.  Ms. Kilmury's photograph, as a result, bears a reasonable relationship to the article and does not violate the Rules.

The protester also cites a photograph which includes Local Union 25 President George Cashman, a member of Mr. Carey's slate.  The photograph, which appears on page 16, is one of four which accompany an article entitled “Teamsters Go Public to Defend Medicare, Oppose Pork for Fat Cats.”  The article describes demonstrations outside books stores where U.S. Representative Newt Gingrich has been promoting his new book.  The demonstrators, made up of members of the IBT and community groups, are depicted protesting

Mr. Gingrich's policies which, according to the article, will hurt working Americans.  The photograph that includes Mr. Cashman depicts a group scene showing several demonstrators displaying placards with slogans opposing Mr. Gingrich and his policies.  The photograph is accompanied by a caption which states that Mr. Cashman “and two other Teamsters were detained by police for trying to enter the Boston store where Gingrich appeared . . .”

The article reports attempts to express workers’ displeasure to a legislature that is perceived to have grown insensitive to their needs.  This is an issue of great concern to members.  The photograph in which Mr. Cashman appears is reasonably related to the article, and the caption reasonably describes Mr. Cashman's role in the demonstration.

Photographs of Mr. Carey

Mr. Hoffa protests four photographs of Mr. Carey that appear in the publication on pages 3, 4, 8 and 17.  As the Election Appeals Master stated in In Re: Martin and Hoffa,

“Mr. Carey has the right and the responsibility to communicate with the membership--through [Union publications]--his goals as General President of the IBT.” 95 - Elec. App. - 18 (KC) (October 2, 1995).  As a result, each reference to and photograph of Mr. Carey must be considered in light of his mandate.  See Martin, supra.

James P. Hoffa

November 17, 1995

Page 1

The picture on page 3 is of Mr. Carey addressing a rally supporting striking newspaper workers in Detroit.  The photograph accompanies the issue’s cover article “Corporations Declare War on Workers.”  The article presents allegations that newspaper owners in Detroit have “donated” funds to the local police department for preferential police treatment, which includes beating and tear-gassing striking workers.  The article also describes attempts by the International to support the local unions involved in the strike.  The photograph of Mr. Carey bears a reasonable relationship to the article.  Mr. Carey's address at the rally demonstrates the IBT’s support for the members struggling against Detroit newspaper owners and police and shows the involvement of the International in an important local issue which could have repercussions for all IBT members.  The photograph is also the smallest of the three which accompany the article.  Its publication does not violate the Rules.

The photograph on page 4 accompanies a brief article describing an IBT protest of changing labor practices at the New York State Thruway Authority.  According to the article, a demonstration was held in Albany, New York.  The photograph depicts Mr. Carey addressing attendees at the protest rally.  The photograph is reasonably related to an article reporting issues of interest to the membership and, therefore, does not violate the Rules.

The protested photograph on page 8, like the previously discussed photos of Mr. Lopez and Mr. Haynes, accompanies a report of Mr. Carey's remarks at the Teamsters Civil Rights Conference and does not violate the Rules as it depicts Mr. Carey at the Conference addressing the attendees on legitimate union concerns.

The photograph of Mr. Carey on page 17 accompanies an article describing efforts of IBT members to register their colleagues to vote.  According to the picture's caption, the photograph is of Mr. Carey speaking with members of Local Unions 89 and 783 as part of a meeting to train stewards to help members register to vote.  The activities of the IBT and

Mr. Carey to involve Teamster members in the electoral process is an issue of interest to the members, since voter registration efforts increase the political power of the IBT.  The photograph bears a reasonable relationship to the subject of the article and, consequently, does not violate the Rules.

In addition, the number of photographs in which Mr. Carey appears is neither unusual, nor excessive, for the publication.  Mr. Carey appeared in four out of 36 photographs in the October/November issue.[1]  Furthermore, this number does not represent a major change from past practice.  Mr. Carey appeared in three photographs in the January/February 1995 issue, the March 1995 issue, the April/May 1995 issue, and the June 1995 issue.  His photograph appeared twice in both the July/August 1995 issue and the September 1995 issue.  The inclusion of four photographs of Mr. Carey does not amount to an excessive or impermissible increase in coverage even though the election process is more advanced than it was when the prior issues were published.  The publication of one additional photograph of Mr. Carey does not rise to the level of a Rules violation. 

“Your Rights at Stake” Article

James P. Hoffa

November 17, 1995

Page 1

Mr. Hoffa also protests an article entitled “Your Rights at Stake:  Our 1996 Convention Could Reverse Teamster Reform.  Just Look at Past Conventions” that appears on the first page of the magazine.  (Emphasis in original.)  The one-page article begins with the question, “Should the Teamster Union continue to try to clean up corruption and become more democratic?”  The article then examines actions taken at past conventions which have hindered efforts to fight corruption, eliminated the voting rights of the rank and file, and affected the union financially.  The article warns that similar resolutions could be passed at the 1996 convention.

While discussing issues of importance to candidates for International office, the article does not mention Mr. Carey, the election or the candidacy of any individual.  In fact, the article does not state that the election of any individual or slate can prevent the erosion of reform, it merely states that reform efforts could be countermanded as they have been at past conventions.  The article advocates that convention delegates support a democratic, ethical, and financially sound union and as such is a statement of principle, not an endorsement of any specific candidate or slate.

The protester compares the article to one which appeared in the July/August issue of Teamster magazine and was found by the Election Officer to have violated the Rules.  Martin, supra.  The Teamster article, entitled "The Future of Teamster Reform," is, however, distinguishable.  Unlike the article in the instant protest, that article specifically praised the accomplishments of Mr. Carey and his administration in the context of the importance of running for delegate.  The linking of Mr. Carey’s accomplishments with the urging of members to run for delegate was found to be a violation.  As the Election Officer observed, “If the article had simply urged . . . participation [in the delegate elections] 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.”  Martin, supra. The article protested here does just that.  The article urges participation in the delegate elections and informs members, in an editorial format, what issues they will face if they become delegates.  A such, it falls within the restrictions established by the Election Officer and is not a violation of the Rules.

Pattern and Practice Violations

The protester further alleges that the protested article is a part of “pattern and practice of egregious violations.”  He claims this effort began with the publication of a “Teamsters Pride” letter in October 1994 and has manifested itself as various prohibited articles that have appeared in union-financed publications since then.

James P. Hoffa

November 17, 1995

Page 1

Mr. Hoffa raised similar allegations in P-022-IBT-PNJ, P-106-IBT-PNJ, P-126-IBT-EOH, P-127-IBT-EOH, and P-140-IBT-PNJ.[2]  In those decisions, the Election Officer pointed out that of all the articles cited to as evidence of a pattern and practice of violations only one, "The Future of Teamster Reform" in the July/August issue of Teamster magazine, was found to violate the Rules.  A single violation is insufficient to establish a pattern or practice of Rules violations and, since the article cited in the instant protest does not violate the Rules, no further evidence of such a pattern or practice has been provided to the Election Officer.

Based upon the foregoing, 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.

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

Regional Coordinators