Protest Decisions

December 5, 1995

VIA UPS OVERNIGHT

James P. Hoffa

December 5, 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

Susan Davis

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY 10036

James P. Hoffa

December 5, 1995

Page 1

Re:   Election Office Case No. P-231-IBT-SCE

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 International union office, against General President

Ron Carey.  The protester alleges that a press release issued by the IBT on November 6, 1995 represents a contribution to Mr. Carey’s campaign, in violation of Article XII, Section 1(b)(1) of the Rules.  The press release presented the results of several questions contained in a membership poll conducted by the IBT in December of 1994.

Mr. Hoffa contends that the November 6 press release and the accompanying information amounts to a contribution by the IBT under the Rules “that has a ‘foreseeable effect’ of benefitting Mr. Carey’s campaign.”  The press release, the protester asserts, “is intended to put the best ‘spin’ possible on the fact that [Mr. Carey] was found to have violated the Election Rules and would have to repay the IBT for his misuse of union funds.”

James P. Hoffa

December 5, 1995

Page 1

The IBT responds that the press release fully complied with the decision of the Election Appeals Master in In Re: Giacumbo, 95 - Elec. App. - 32 (November 1, 1995), took a neutral tone and provided full disclosure of the polling information.  The IBT further contends that Mr. Hoffa, in representing Mr. Martin, the protester in P-018-IBT-PNJ, and otherwise, has repeatedly requested full disclosure of the polling information.  Therefore, the IBT argues, Mr. Hoffa has waived his objections to disclosure.

Article XII, Section 1(b)(1) of the Rules prohibits a labor organization from contributing “anything of value” to a campaign “where the purpose, object, or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candi-

date . . .”  Article XII, Section 1(b)(3) states that “[n]o Union funds or other things of value shall be used, directly or indirectly, to promote the candidacy of any individual.”

The poll referred to in the instant protest was the subject of an earlier decision by the Election Officer consolidating two protests, Giacumbo, et al., P-001-IBT-PNJ and P-018-IBT-PNJ (September 29, 1995), aff’d, 95 - Elec. App. - 32 (KC) (November 1, 1995).  In Giacumbo, the protesters asserted that membership surveys conducted by the IBT could be utilized by Mr. Carey and his slate to their advantage in the 1996 election.  The protesters requested that the Election Officer order Mr. Carey to distribute the results of the surveys to all candidates for International office and to the general membership.

   The Election Officer found that a survey conducted in December 1994 contained several questions, specifically Question 5 and Questions 10(a)-(d), which sought “information that would be directly useful and relevant to Ron Carey as a candidate for reelection.”  The Election Officer concluded, “because specific questions . . . have a ‘foreseeable’ effect to influence Mr. Carey’s election, he has accepted a campaign contribution prohibited by

Article XII, Section 1(b) [of] the Rules.”

As a remedy, the Election Officer ordered the Carey campaign to reimburse the IBT for the cost of polling the members on Questions 5 and 10(a)-(d) of the survey.  The Election Officer stated that she would issue a Supplemental Decision specifying the amount to be reimbursed and would allow the Carey campaign 30 days to comply.

On appeal of the decision, the Election Appeals Master affirmed the finding of the Election Officer, stating that the responses to Questions 5 and 10(a)-(d) of the 1994 survey “would provide Mr. Carey with detailed information concerning his political strengths, weaknesses, and popularity . . . [and have] the foreseeable, indeed, the likely effect of aiding Mr. Carey’s campaign for re-election.”  95 - Elec. App. - 32 (KC) (November 1, 1995), supra.  The Election Appeals Master, however, broadened the remedy and directed Mr. Carey to provide the other candidates for International office with the answers to Question 5, as they related to Mr. Carey only,[1] and Questions 10(a)-(d).  The Election Appeals Master further stated that because Mr. Carey had access to these responses “(a)s a result of an improper union expenditure . . . I believe it is appropriate for such information to be shared with other candidates in order to maintain a level playing field and discourage the future misuse of union resources.” 

James P. Hoffa

December 5, 1995

Page 1

Prior to the Election Officer’s issuance of a Supplemental Decision on November 7, 1995, and prior to the release of the information to the other candidates as directed by the Election Appeals Master, the IBT issued a press release on November 6, 1995 with the headline “Union Releases Membership Poll Results.”  The release, citing the order of the Election Appeals Master to disclose the responses to several questions in the 1994 membership survey to the other candidates, stated as follows:

·              Asked to name the president of their union, 47% cited Carey.

·              Members were asked to rate their feelings toward a number of public figures and institutions, including Carey.  The results showed 12% very positive toward Carey, 19% somewhat positive, 22% neutral, 8% somewhat negative, 6% very negative, and 33% don’t know/not sure.

·              29% of the membership said they approve of the job Carey is doing, 9% disapprove, and the rest had no opinion or were not sure.

·              32% of the membership said Carey is doing a better job than previous presidents, 6% said a worse job, while the rest said about the same job or not sure.

The complete information that is being released is attached.

On November 7, 1995, the Election Officer issued the Supplemental Decision described in Giacumbo, supra.  In pertinent part, she directed that all candidates for International office immediately be provided with the data from Question 5, as it related to Mr. Carey, and Questions 10(a)-(d)--in the form submitted to and approved by the Election Officer.  See Giacumbo, P-001-IBT-PNJ and P-018-IBT-PNJ, Supplemental Decision (November 7, 1995).  The Election Officer also directed that all costs associated with this transmission be borne by the Carey campaign.

In the original Giacumbo decision, the Election Officer ordered the Carey campaign to reimburse the IBT for the cost of surveying the members on Questions 5 and 10(a)-(d), an amount set forth in the Supplemental Decision.  She did so because she found that portion of the poll to be an improper campaign contribution to the Carey campaign.  Thus, the Election Officer found that the information collected for these questions were contributed to the Carey campaign.

James P. Hoffa

December 5, 1995

Page 1

Contrary to the IBT’s contention, the Election Appeals Master did not order public disclosure of the polling information, but specifically such disclosure “to other candidates.”  In Re: Giacumbo, supra.  The Election Officer further finds the IBT’s argument that

Mr. Hoffa waives his right to protest is without merit.  The right to file a protest over the IBT’s release, alleging noncompliance with the Rules is not circumscribed.

Furthermore, the Election Officer does not find the essence of Mr. Hoffa’s protest to contradict his position in favor of full disclosure.  Rather, the protest focuses on the manner of the release and who bore the cost.

Had Mr. Carey released these responses to the public under the auspices of his campaign, there would be no violation of the Rules as the campaign was free to utilize this information as it wished.  Instead, the IBT Communications Department was utilized to issue a press release of the same data found to be a prohibited campaign contribution.  This separate action was a further use of union resources, in violation of Article XII, Section 1(b)(3) of the Rules.

The IBT argues that the press release takes a neutral tone.  Mr. Hoffa aruges that the IBT put the “best possible spin” on the press release.  Unlike the release of poll information in Hoffa, P-132-LU237-NYC (September 29, 1995), the IBT press release here did not selectively disclose results or characterize them in a favorable manner.  The finding of a violation herein, however, is not based on the tone or content of the press release.  Rather, it is based on the use of union resources to publicize information previously declared to be an improper campaign contribution.

For the foregoing reasons, the protest is GRANTED.

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.  In reviewing the range of remedies in the instant protest, the Election Officer notes that the IBT, particularly through the use of the IBT Communications Department, has been found in violation of the Rules in several cases.  See Martin, et al., P-010-IBT-PNJ, et seq. (August 17, 1995), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995); In Re: Hoffa, 95 - Elec. App. - 31 (KC) (October 31, 1995); Giacumbo, P-102-IBT-PNJ (October 12, 1995), aff’d, 95 - Elec. App. - 29 (KC) (October 30, 1995).  The Election Officer also views this violation of the Rules seriously because it comes on the heels of the earlier violation found in Giacumbo, et al., P-001-IBT-PNJ (September 29, 1995).  Thus, the Election Officer feels it is appropriate in this case to impose a more stringent remedy. 

James P. Hoffa

December 5, 1995

Page 1

The Election Officer therefore orders that the IBT publish the "Notice to Members from General President Ron Carey," attached to this decision as Exhibit A, in the January-February 1996 edition of the Teamster.  The notice shall be signed by Mr. Carey, shall be not less than one-half page in length, shall be located on either page 1 or 2 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 addition, the Election Officer orders Mr. Carey’s campaign to reimburse the IBT for the expenses incurred by the union in researching, writing, distributing, and responding to all press calls concerning the November 6, 1995 press release.  In computing such expenses,

Matt Witt and Nancy Stella (both of whom are listed as contacts on the press release) shall each submit to the Election Officer within seven (7) days of the date of this decision an affidavit stating the following relevant facts:  (1) their annual salary; (2) the number of hours spent researching, preparing and distributing the press release; (3) the number of hours spent responding to the media and others regarding the press release; (4) the names and salaries of other IBT staff members who helped research, prepare, distribute and/or respond to inquiries regarding the press release, and the number of hours, each staffer spent doing so; and (5) the production expenses incurred by the IBT in distributing the press release, including, but not limited to, facsimile costs, photocopying costs, postage costs and telephone expenses.

Upon receipt of these affidavits, the Election Officer will issue a supplemental decision which 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

James P. Hoffa

December 5, 1995

Page 1

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

Exhibit A

TO ALL MEMBERS OF THE

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

FROM GENERAL PRESIDENT RON CAREY

The Election Officer for the International Brotherhood of Teamsters previously found that a poll conducted by the IBT in December 1994 contained several questions which sought “information that would be directly useful and relevant to Ron Carey as a candidate for reelection.”  Thus, the information collected on those questions in the poll were contributed to the Carey reelection campaign by the IBT in violation of the Rules.  As a remedy in that case, the Election Officer ordered the Carey campaign to reimburse the IBT for the cost of polling the members on that portion of the poll found to have been a campaign contribution.  On appeal, the Election Appeals Master also ordered that other candidates for International Office be provided with the answers to these questions.

Then on November 7, 1995, the IBT issued a press release under the headline “Union Releases Membership Poll Results.”  This press release presented the same information in the poll that the Election Officer had earlier found to be a campaign contribution in violation of the Rules.  The Election Officer has determined that the IBT’s issuance of this press release is another violation of the Rules.  The Election Officer stated that the Rules would not have been violated if the press release had been issued by the Carey campaign.  The Carey campaign is free to utilize this information as it wishes.

The Election Officer has ordered that the Carey campaign reimburse the IBT for the costs of the research, preparation and distribution of the press release and that this notice be published as part of the remedy:

I will not use union funds or other things of value, including the IBT Communications Department, directly or indirectly, to promote my candidacy or the candidacy of any individual on the Ron Carey slate.

________________________________

Ron Carey

General President, IBT