September 6, 1996
VIA UPS OVERNIGHT
Ed Chalfant & Ron Schick
September 6, 1996
Page 1
Ed Chalfant
4210 Jewell Road
Bothell, WA 98012
Ron Schick
11422 26th Avenue, S.W.
Seattle, WA 98146
Jon Rabine, President
Teamsters Joint Council 28
553 John Street
Seattle, WA 98109
Ed Chalfant & Ron Schick
September 6, 1996
Page 1
Re: Election Office Case Nos. P-882-JC28-PNW
P-883-JC28-PNW
Gentlemen:
Pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) by Ed Chalfant, a member of Local Union 227, and Ron Schick, a member of Local Union 174. Mr. Chalfant alleges in P-882-JC28-PNW that the August 1996 issue of Washington Teamster, the official publication of Joint Council 28, supports the candidacy of the slate of James Hoffa, a candidate for general president and a member of Local Union 614, in violation of the Rules. In P-883-JC28-PNW, Mr. Schick alleges that the same publication improperly supports the candidacies of Mr. Hoffa and Jon Rabine, president of Joint Council 28 and a candidate for International vice president for the Western Region. Because of the related nature of these protests, they were consolidated by the Election Officer.
Mr. Chalfant generally protests the coverage of the IBT Convention in the Washington Teamster. Mr. Schick contends that the publication contains 20 instances of inaccuracies, omissions, preferential treatment for Mr. Hoffa, or slanted reporting at Mr. Carey’s expense in its articles which report on the proceedings of the convention.
Joint Council 28 responds that its Convention coverage was within the bounds of editorial discretion permitted the publishers of union-financed publications by the Election Officer. It denies that its coverage contained any factual inaccuracies.
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September 6, 1996
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Regional Coordinator Christine M. Mrak 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).
Ed Chalfant & Ron Schick
September 6, 1996
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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. Generally, 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:
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.
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September 6, 1996
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Finally, union-financed publications may contain opinions of the manner in which the Convention was organized or managed or the conduct of attendees, so long as such editorializing 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.
Volume 59, Number 3 of Washington Teamster, dated August 1996, is 20 pages long. The lead story on the first page begins with the headline “IBT Convention Fails!” with an accompanying bank that reads “Hoffa, Carey Nominated for IBT Top Spot; Other Convention Business Left Unfinished.” The article and related photographs occupy the first page and the top third of the second page.
The lead article is accompanied on the first page by a large picture of convention delegates applauding striking Detroit newspaper workers. The photograph depicts Mr. Carey at the podium. Below this photograph are two smaller photographs of equal size depicting Mr. Hoffa or Mr. Carey addressing the media. On the second page, photographs of equal size depict campaign rallies in Philadelphia for Messrs. Carey and Hoffa.
The first page also contains a reproduction of a letter under the headline “Joint Council 28 Invites Hoffa, Carey to Debate.” In the letter, Mr. Rabine extends the joint council’s invitation to both candidates to speak before joint council delegates and guests at a special meeting on October 1, 1996.
The lead article is followed by a piece entitled “Elected Joint Council 28 Delegates and Alternate Delegates speak out on the July 15-19, 1996 Convention.” A brief introduction explains that Joint Council 28 invited all 56 delegates and 18 alternate delegates elected from Local Unions in Joint Council 28 who attended the Convention to submit their comments
Ed Chalfant & Ron Schick
September 6, 1996
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upon the Convention proceedings. According to this introduction, 50 delegates and
11 alternate delegates responded in time for publication.
The responses of these individuals follow the introduction. Each response was preceded by the respondent’s name, elected position (either delegate or alternate delegate), local union number, and employer. The responses range in length from one to seven paragraphs.
The rest of the publication is devoted to items and stories of interest to the constituent local unions of Joint Council 28 unrelated to Convention coverage.
As stated above, Mr. Schick submitted 20 specific allegations concerning the protested publication. These allegations target the lead article’s headline, text, and accompanying photographs; the section of the publication in which the delegate and alternate delegate responses are published; and the portion of the first page in which Messrs. Carey and Hoffa are invited to debate at Joint Council 28. Each of these portions of the publication will be addressed below.
1. The Lead Story
Mr. Schick protests the headline and subheading of the lead story, the story’s lack of a byline, the photographs printed with the story, and alleges that the text contains factual inaccuracies, deliberate misquotes, omissions, and was worded in such a way to give “a negative connotation [on] Carey’s chairmanship.”
The content of the headline and text of an article in a union-financed publication is a matter of journalistic and editorial discretion that the Election Officer will not disturb unless the material supports or attacks a candidate or his or her candidacy. Criticism and observa-tions of a union officer’s performance of his or her duties does not violate the Rules if it appears in a union-financed publication so long as the editorializing is limited to such duties and is not excessive or untimely, as determined by application of the tone, timing and content test.
The tone of the lead story and the style of its reporting are critical of Mr. Carey’s execution of his duties as Convention chair. While not an editorial, the article is written from the point of view that the failure of the Convention to address important issues was solely the fault of actions taken by the Convention chair. A critical tone, however, does not, by itself, violate the Rules, unless the content of the publication establishes a sufficient link with the election or a campaign. The strictness of this standard increases as the election approaches.
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September 6, 1996
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An examination of the content of the article indicates the inaccuracies, omissions, and misstatements alleged by Mr. Schick are matters of interpretation which will not be disturbed by the Election Officer. The fact that Mr. Schick objects to these interpretations, such as how much of Senator Arlen Specter’s comments to print or whom to blame for perceived slow progress at the Convention, are disagreements with journalistic discretion but do not state violations of the Rules.
To rise to the level of a Rules violation, the publication must explicitly or implicitly attack Mr. Carey as a candidate, not the manner in which he acts as Convention chair. This critical connection between the text of the publication and the election campaign does not exist in the protested article.
Mr. Schick argues that the lead sentence in the first paragraph of the article is factually incorrect. That sentence reads, “In a straw vote conducted at the Government-supervised 25th Convention of the International Brotherhood of Teamsters, delegates elected by rank-and-file Teamster members picked Jim Hoffa for General President of the Union.” The article then reports on the results of the nomination vote for the office of general president conducted under Election Officer supervision on July 18, 1996. The Election Officer finds that in the context of the entire paragraph which makes clear that Messrs. Carey and Hoffa “will square off in a membership-wide vote scheduled for mid-November of this year,” and that both candidates were nominated, the reference to a straw vote of the delegates is not a violation of the Rules. Mr. Hoffa did, in fact, receive more votes in the delegate nomination balloting.
Mr. Schick objects to other editorial decisions that influenced the content of the publication. He argues that the article incorrectly reports that Mr. Carey dismissed the delegates early on the last day of the Convention, that business reported as “unfinished” was actually addressed, that the article failed to fully quote news publications or individuals, and that actions taken by the convention chair are reported in a pejorative manner. These allegations protest the judgment of the author of the protested article. As stated above, however, journalist discretion will not be disturbed unless it violates the criteria set forth to determine when a publication has violated the Rules.
Deliberate factual inaccuracies may be a violation of the Rules, but the Convention record indicates that the statements Mr. Schick points to as erroneous are opinions that could be drawn from the facts. The article states that proposed Constitutional changes, including “proposals by Carey supporters to grant sovereignty to Canadian members . . . fell under the category of ‘unfinished business.’” Mr. Schick objects to this characterization, but the record demonstrates that a portion of the Canadian Sovereignty Amendment was never voted on. In addition, the record also shows that the Convention ended prior to the start of the 2:00 p.m. afternoon session scheduled in the Convention program issued by the IBT.
As stated above, as the election approaches, the standard of scrutiny of union-financed publications becomes more stringent. Even under this heightened standard, the article does not violate the Rules. Timely reporting of the convention proceedings is an important function of such publications, and criticism of the actions of union officers in their official capacities, so long as such criticism is not excessive, does not violate the Rules.
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September 6, 1996
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Mr. Schick also protests the photographs printed with the lead article violate the Rules. Article VIII, Section 8 forbids disparate photographic representations of candidates in union-financed publications. Mr. Schick alleges that the side-by-side pictures of
Messrs. Carey and Hoffa on the first page of the publication violate the Rules because “Hoffa is in perfect focus and is shot straight on. Carey’s picture is fuzzy and from a side angle.” An examination of these photographs, however, reveals that, while the photograph of
Mr. Carey is slightly out of focus, neither photograph violates the requirement of the Rules that “all candidates for the same position are given equal treatment, equal space and equal prominence.” Rules, Article VIII, Section 8(a)(6).
Mr. Schick also protests the pictures of the campaign rallies that appear on page two. According to the protester, “Carey’s rally is seen in a close-up shot showing a small number of people. The picture of Hoffa’s rally was taken at a distance and a much larger crowd can be seen.” While the camera angles and distances do vary between the photographs, the difference is not sufficient to work to the detriment or advantage of either candidate. Large crowds and campaign placards are clearly visible in both photographs.
2. Printed Statements of Delegates and Alternate Delegates
Mr. Schick protests the printing of the delegate and alternate delegate comments in the publication. He states that there is no past precedent in the joint council for such coverage and that the questions presented to the Convention attendees were so broad it allowed them “broad parameters -- even room to lie -- in their answers.” He further contends that this format allowed Hoffa supporters, who greatly outnumber Carey supporters among Joint Council 28 delegates and alternate delegates, “to utilize about 95% of the space for pro-Hoffa anti-Carey [sic] campaigning.”
An examination of the printed comments reveals that most, but not all, of the attendees express displeasure at Mr. Carey for the manner in which he conducted the Convention. Many of these critics were passionate, and some even vitriolic. Their comments, however, constitute a legitimate reporting of the Convention proceedings, as they perceived them, by elected representatives to their constituents. Reporting on the observa-tions of delegates by a union-financed publication does not automatically violate the Rules. In the present case, the editors of the publication attempted to obtain comments from all the delegates and alternate delegates from local unions in the joint council. They printed the comments of attendees who did not criticize Mr. Carey’s leadership. In this context, polling the delegates who attended the Convention, the Election Officer will not limit the ability of delegates to report to their membership because a majority hold similar views. This portion of the publication, therefore, does not violate the Rules.
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September 6, 1996
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The Election Officer cautions, however, such coverage in other contexts may well violate the Rules. There is a point at which excessive or untimely criticism of a candidate’s actions in his or her official capacity rises to the level of an attack on his candidacy. Publishers of union-financed publications may not hide repeated and excessive attacks on a candidate under the guise of selectively seeking and publishing members’ commentary. The unique circumstances of Convention coverage and the fact that the published comments were those of elected delegates and alternate delegates saves this particular article from constituting an attack on Mr. Carey’s candidacy prohibited by the Rules.
3. Invitation to Debate
Mr. Schick protests the joint council’s invitation to Messrs. Carey and Hoffa to debate at its special delegate meeting by stating:
This debate is open only to delegates and guests. Clearly if an event such as this could be scheduled, all current rank and file Teamsters and retirees should be invited. What is happening around the country is local or Joint Council [sic] supportive of Hoffa challenge for a debate on so many debates it becomes impossible for Carey to be at all debates and to run the union too. This feeds the Hoffa campaign rhetoric that ‘Carey won’t debate.’
Article VIII, Section 11(c) of the Rules reads:
Union funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in campaigning unless the Union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance. Union officers and employees provided with Union-owned or leased cars, if otherwise afforded the right to utilize those cars for personal activities, may use the cars for campaign activities, provided no costs, or expenses incurred as a consequence, of such use are paid out of Union funds or other prohibited sources.
Implicit in the Rules is the concept that campaigning is more than just communication with the members; it involves advocacy of the nomination, and election or defeat of a candidate for office. See Martin, P-10-IBT-PNJ (August 17, 1995) (decision on remand). While local unions are prohibited from campaigning for or against a candidate, they are not prohibited from making any comment on the election itself. Article VIII, Section 5(a) specifically allows local unions to provide candidates an opportunity to address the members during a meeting, so long as all candidates have sufficient advance notice and are treated equally. The Department of Labor regulations also prohibit the use of union funds for campaigning, but state that “it would not be improper for a union to sponsor a debate at which all candidates for a particular office are afforded equal opportunity to express their views to the membership prior to an election.” 29 C.F.R. §452.74.
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In Cook, P-991-LU726-CHI (October 28, 1991), the Election Officer found, “The Rules require equal access, for campaign purposes, for all candidates to meetings of Local Unions of which they are not a member.”
Thus, where a local union or joint council provides equal access for all candidates (or all candidates for a particular office) to a forum for expressing their views, and all candidates are provided adequate advance notice of such access, the sponsoring body has not engaged in campaigning within the meaning of these Rules and has not violated the Rules. See Belk,
P-117-JC87-SCE (September 20, 1996), aff’d, 95 - Elec. App. - 24 (KC) (October 16, 1995).
Just as local unions and joint council may hold special meetings restricted to stewards or delegates, so to may an IBT-affiliated entity restrict the debate audience to a particular subset of union members. The audience content, like the decision to extend debate invitations in the first place, is a matter up to the discretion of the inviting entity. As a result, the joint council’s invitation to Messrs. Carey and Hoffa does not violate the Rules.
Accordingly, this 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
Christine Mrak, Regional Coordinator