Protest Decisions

              September 6, 1996

VIA UPS OVERNIGHT

James P. Hoffa

September 6, 1996

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI 48098

John Morris, President

Pennsylvania Conference of Teamsters

2833 Cottman Avenue

Philadelphia, PA 19149

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

Bradley T. Raymond

Finkel, Whitefield, Selik

Raymond, Ferrara & Feldman, P.C.

32300 Northwestern Highway

Suite 200

Farmington Hills, MI 48334

James P. Hoffa

September 6, 1996

Page 1

Re:  Election Office Case No. P-870-PACONF-SCE

Gentlemen:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) by James Hoffa, candidate for general president and a member of Local Union 614.  Mr. Hoffa alleges that the July 1996 issue of Conference Report, a publication produced and distributed with the resources of the Pennsylvania Conference of Teamsters, was used to support the candidacy of incumbent General President Ron Carey, in violation of the Rules.

Specifically, Mr. Hoffa contends that “the publication mentions Ronald Carey and other members of his candidate slate not fewer than 12 times, contains multiple photographs of [Mr.] Carey and other members of his slate and falsely blames [Mr. Hoffa’s] supporters for disrupting the IBT Convention.”  Mr. Hoffa alleges that such favorable coverage supports

Mr. Carey’s candidacy in violation of Article VIII, Section 8(a) of the Rules.

James P. Hoffa

September 6, 1996

Page 1

Regional Coordinator Bruce Boyens investigated the protest.

Article VIII, Section 8(a) of the Rules states that a union-financed publication or communication may not be “used to support or attack any candidate or the candidacy of any person.”  In reviewing union-financed communications for improper campaign content, the Election Officer looks to the tone, content and timing of the publication.  Martin, P-010-IBT-PNJ et al. (August 17, 1995) (decision on remand), aff’d, 95 - Elec. App. - 18 (KC)

(October 2, 1995).  The Election Officer also considers the context in which the communication appeared.

In Martin, the Election Officer recognized that union officers and officials have a “right and responsibility to exercise the powers of their office and to advise and report to the membership on issues of general concern” (quoting Camarata v. International Bhd. of Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979), aff’d, 108 L.R.R.M. (BNA) 2924 (D.C. Cir. 1981)).  The Election Officer also recognized in Martin that:

. . . an otherwise acceptable communication may be considered campaigning if it goes on to make a connection with the election or election process, if it involves excessive direct or indirect personal attacks on candidates, or, alternatively, involves lavish    praise of candidates.  Otherwise legitimate coverage of the activities of a union official running for office may constitute campaigning if it is excessive.

Because of the close proximity of the International officer election, the standard of scrutiny has greatly increased. 

              The Election Officer acknowledges that many aspects of the Convention were politically charged.  Many attendees openly displayed their political affiliation.  Energetic demonstrations of support for candidates were common, as were heated political debates.  A portion of the proceedings was devoted solely to the nominations of International officer candidates. 

Union-financed publications are prohibited from reporting on campaign activities, unless they provide equal coverage for all candidates for a particular office.  Campaign activities, however, were inextricably linked with other proceedings at the Convention. Coverage of Convention proceedings and activities by union-financed publications violates the Rules if such coverage unduly praises or criticizes candidates or reports on the activities conducted during the convention solely for campaign purposes (e.g., a candidate rally) without providing equal coverage to other candidates for that office.  See Smith, P-836-LU639-MID (August 16, 1991); Moerler, P-829-LU63-CLA (August 14, 1991); Scott,

P-821-LU237-NYC, P-835-LU237-NYC (August 16, 1991).

James P. Hoffa

September 6, 1996

Page 1

The International Convention is an event of significant interest to many IBT members.  Informing members of the events of the Convention through union publications is a legitimate duty of local union, joint council, or conference officers.  Reporting on the proceedings at the convention would be almost impossible without some reference to the nomination process, which was an integral part of the Convention, and without reference to one or more of the candidates.  Moreover, Mr. Carey, as general president of the union, served as the chair of the convention. This role focused a great deal of attention and interest on his actions.  Under such circumstances, detailed coverage of Mr. Carey as convention chair would not automatically violate the Rules.

In addition, a union-financed publication is not obligated to report on the actions of all candidates in whatever official capacity they had at the Convention, nor is a publication required to present all points of view concerning the conduct or outcome of the Convention.  Similarly, a union-financed publication is not required to report on everything that occurred on the Convention floor.  Such requirements would effectively prohibit Convention coverage by union-financed publications by obligating journalists for such publications to report on every event, act, or proceeding that occurred at the Convention.  See Smith, supra; Moerler, supra.    Such a requirement would not only create a near impossible task for such reporters, but would also intrude on their journalistic discretion.  The Election Appeals Master has stated that “[A]bsent a political endorsement or attack, as established by the communication’s tone, content, and timing, the Election Rules do not empower me to intrude upon the journalistic process of a union publication.”  In Re: Lamy, 95 - Elec. App. - 53 (KC) (January 11, 1996).  Moreover, the Election Officer has previously determined that “a union-financed communication does not violate the Rules because it fails to treat opposing ideas or opinions.”  Volpe et al., P-828-IBT-MGN et seq. (July 11, 1996), aff’d 96 - Elec. App. - 218 (July 23, 1996).  In Martin, supra, the Election Officer incorporated the reasoning of the court in Camarata, quoting:

Elected union officials . . . are not ordinarily required to give space therein to the expression of contrary views . . . So long as such coverage is addressed to the regular functions, policies and activities of such incumbents as officers involved in matters of interest to the membership and not as candidates for reelection, there is not a violation of [Section] 401(c) [of the LMRDA].

Whatever actual advantage may be gained by incumbents from the publicity and attention inherent in such communications is offset by the realities of the political process.  As Martin further explains at page 12:

James P. Hoffa

September 6, 1996

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Incumbency, however, is a two-edged sword.  Mr. Carey is subject to blame when union policies fail or when negotiations result in a less advantageous collective bargaining agreement. [citing cases] Moreover, just as the incumbent may conduct union business without having it labeled as campaigning, potential rivals are also free to criticize the policies of the incumbent without having such conduct automatically be labeled campaigning.

Finally, union-financed publications may contain opinions on the manner in which the Convention was organized or managed or the conduct of attendees, so long as such editori-alizing does not make a connection with the campaign or the International officer election.  “Just as it is proper for incumbent Union officers to expend Union resources for the conduct of legitimate Union business, it is permissible for a Union member to criticize the manner in which the incumbent conducts such business.”  Jacob, P-060-LU745-EOH (July 21, 1996), remanded on other grounds, 95 - Elec. App. - 6 (KC) (August 14, 1995).  Thus, the Election Officer stated in Martin, supra, “[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.”  See also Jacob, P-071-LU391-EOH (September 7, 1995), aff’d, 95 -  Elec. App. - 19 (KC) (October 3, 1995).  Union officers, who control the content of union-financed communications, may criticize or support the policies or actions of the current IBT administration in those communications without violating the Rules so long as their comments do not support or attack the candidacy of any slate or individual.  See Fischer et al., P-090-IBT-PNJ/PGH et seq. (September 7, 1995), aff’d, 95 - Elec. App. - 15 (KC) (September 7, 1995). 

The actions of the general president at the Convention are not only newsworthy, they invite comment.  So long as such commentary does not establish a link to the election or campaign, and is limited to the performance of Mr. Carey’s office as general president or Convention chair, it does not violate the Rules.

1.              Allegation that Publication Blames Hoffa Supporters for Convention Disruptions

Volume 10, Number 7 of Conference Report, dated July 1996, is eight pages long.  The lead story on the first page begins with the headline “Fighting for Our Future, The IBT Meets in Philly.”  The article comprises half of the first page, most of the second page, and is continued on the top half of the fourth page.

The author of the article begins with an introduction in which he states that “the Convention was supposed to be a ‘working’ Convention where a lot of work would get done

. . . but the vigorous nature of the proceedings resulted [at times] in gridlock.  Yet, despite all the disruptions, some work did get done.”  In the next paragraph, the author describes the start of the convention and the devolution of the proceedings into “screaming matches and demonstrations that at times drowned out the persons speaking on the platform.”

The article continues:

James P. Hoffa

September 6, 1996

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Many of the participants got carried away by this boisterous, disruptive behavior, booing everything from the National Anthem to a moment of silence for deceased Teamsters.  That afternoon, Sen. Arlen Specter (R-PA), was booed and heckled so badly he had to cut his speech short.

Visibly offended by this rude behavior, Sen. Specter told the rowdy crowd that his Congressional colleagues would be shocked by their behavior: ‘And when they see what is happening in this hall, that is not a credit to the American labor movement.  That is not a credit to democracy, and it does not do credit to those who support Mr. Hoffa . . . What is happening by that small group is a black mark on the Teamsters . . .’

The article does not mention Mr. Hoffa again.  In the following paragraph, the author expresses displeasure on behalf of the Pennsylvania Conference with “the rude, outrageous behavior shown towards Sen. Specter . . .”

The article lays the blame for much of the disruptions on individuals in the “guests gallery in the rear of the cavernous hall.”  The author then describes Mr. Carey’s actions to expel the guests from the hall.

The rest of the article highlights the accomplishments achieved at the Convention.  According to the author, although debate remained “lively” and “unrestrained” the convention attendees succeeded in establishing an ethics code for fund trustees, adopting resolutions that barred members from associating with organized crime, endorsing the Overnite organizing campaign, creating the position of President of Teamsters Canada, and endorsing a policy to ensure that IBT members are registered to vote.  The article also states that convention delegates “upheld several anti-corruption actions taken previously by the General Executive Board . . .” and, under the guidance of the Election Officer, nominated candidates for International officer positions.  This section of the article ends by reporting that Mr. Carey announced that a special Convention will be held after the 1996 elections to address business that went unfinished at the Convention in Philadelphia.

The remainder of the article on page four continues under the heading “PA Hospitality Praised.”  The author goes on to describe efforts of the Pennsylvania Conference to assist visiting delegates and make their stay more enjoyable.  The article ends with the statement, “Despite the negative press, the 25th International Convention was a success, especially for the Pennsylvania Conference of Teamsters.”

The only other reference to the disruptions at the Convention occurs in the article on the second half of the fourth page entitled “An All-Star Lineup.”  The article lists the “extraordinary guest speakers” who appeared at the convention.  When describing Senator Specter’s presentation, the article’s author states that his speech “was first delayed and then disrupted by the Conferees.”

James P. Hoffa

September 6, 1996

Page 1

The protester, objects to the article, claiming that the Convention was an “unmitigated disaster” and that Mr. Carey is to blame for its failure.  The protester then reasons that convention coverage which does not express this failure is violative of the Rules.  The protester contends that the disruptions and shortcomings reported in the article were blamed on his supporters.

Except for the quotation of Senator Specter, the report concerning the disruptions and demonstrations does not identify those to whom such behavior was attributed.  In fact, the protested article refers to “screaming matches,” implying that individuals of differing affiliations confronted one another by shouting and demonstrating.

The only reference to Mr. Hoffa or his supporters was made in the quote by Senator Specter who stated that the disruptions did not reflect well on the supporters of Mr. Hoffa.  The reporting of this statement does not amount to an attack on Mr. Hoffa’s candidacy, in violation of the Rules.  Mr. Hoffa does not deny that Senator Specter made such a comment.  Rather, he blames Mr. Carey’s decisions as convention chair for “thwart[ing] the will of the democratically elected delegates” and, thus, disrupting the Convention.  In essence,

Mr. Hoffa is objecting to the fact that Conference Report chose to report the Senator’s statements because Mr. Hoffa does not believe that the disruption of the Senator’s speech was caused by his supporters.

The statements of Senator Specter to the delegates and guests at the Convention are of legitimate interest to the membership of the union.  The circumstances of Senator Specter’s presentation and his reasons for curtailing his address are newsworthy, and a verbatim reporting of his comments does not violate the Rules.  The author of the protested article does not editorialize or express an opinion as to the source of the disturbances.  The article neither blames Mr. Hoffa’s supporters, as Mr. Hoffa alleges, nor blames Mr. Carey’s leadership, as Mr. Hoffa contends.

While proximate to the election, neither the tone nor the content of the publication express lavish praise for Mr. Carey or excessive criticism of Mr. Hoffa.  This article is essentially a timely report of a recent newsworthy event.  Based upon this record, the Election Officer does not find this report on the Convention to violate the Rules under the tone, content and timing test. 

Mr. Hoffa, however, claims that, because Mr. Carey’s allegedly “undemocratic” and “dictatorial” conduct was not reported, the article supports Mr. Carey’s candidacy.  However, as stated above, the Election Officer will not find a violation of the Rules because a union-financed publication did not publish one candidate’s views and opinions. The fact that Mr. Hoffa believes that the article in Conference Report does not portray the convention proceedings as he would or that it fails to report certain actions taken by Mr. Carey does not cause the protested articles to rise to the level of campaigning.

James P. Hoffa

September 6, 1996

Page 1

2.              Allegation Concerning Frequent Mention of Mr. Carey and Members of His Slate

The protester alleges that Mr. Carey and John Morris, president of the Pennsylvania Conference and a candidate for International vice president, received excessive coverage in Conference Report, in violation of the Rules.

An examination of the publication reveals that Mr. Carey’s name appears three times in the lead story described above.  In each instance, Mr. Carey was mentioned as acting in his capacity as Convention chair.  He is mentioned again in the title to and caption for a photograph on page two which reports his address to rally participants outside the Hecht’s department store in defense of Teamster jobs at the facility.  A photo of the same rally, and a nearly identical caption, appear on page five accompanying a short article that detailed

Mr. Carey’s actions at a protest against the May Company at a Strawbridge and Clothiers facility in Philadelphia.

The only other reference to Mr. Carey appears in an article on page seven entitled “Calling Out the Employers.”  In the article, Mr. Carey is reported introducing three groups of workers embroiled in ongoing labor struggles to Convention attendees.  Mr. Carey is not mentioned again after the first paragraph.

Such coverage of the general president’s activities at the Convention and in the Philadelphia area are neither overly complimentary nor excessive.  Conference Report’s frequent mention of Mr. Carey occurred because of its Convention coverage, in which

Mr. Carey’s activities as Convention chair, and because Mr. Carey visited and spoke at events of interest to Conference Report’s audience.  The Election Officer has previously determined that visits by the general president to a local union are newsworthy events and that coverage of such visits in a union-financed publication does not violate the Rules.  See Riley, P-101-IBT-EOH (August 23, 1995), aff’d, 95 - Elec. App. - 14 (KC) (September 19, 1995).  Thus, the coverage received by Mr. Carey was not excessive considering the level of his activities at the convention and within the region relevant to Conference Report.

Additionally, Mr. Carey did not receive excessive photographic coverage in the protested publication.  Mr. Carey appears in three of the twelve photographs which appear in the protested issue of Conference Report.  One photograph depicts him at the Convention podium and accompanies the lead article on the Convention.  The other two depict Mr. Carey at the Hecht’s rally.  In one he is speaking with members and, in the other, he is addressing the rally.  As stated above, coverage of the rally does not violate the Rules.  Neither does the publication of the accompanying photographs. 

Mr. Morris also did not receive excessive coverage.  He was not mentioned in any of the Convention related articles.  His photograph does not appear in the publication.  The only references to Mr. Morris in the publication are those which report his activity at the Hecht’s rally, where both he and Mr. Carey spoke, and at the Strawbridge and Clothier facility where members had staged a sit-in.  Mr. Morris acted in his official capacity as president of the Pennsylvania Conference at both events; his address to the rally and interaction with the sit-in

James P. Hoffa

September 6, 1996

Page 1

participants are newsworthy items; and he was not identified as a candidate for International office.  Such coverage is not excessive.[1]

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.

Latham & 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 N. 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

Bruce Boyens, Regional Coordinator