Protest Decisions

              September 18, 1996

VIA UPS OVERNIGHT

Jerry Halberg et al.

September 18, 1996

Page 1

Jerry Halberg

7903 S. 124th Street

Seattle, WA 98178

Willette Mitchell

102 N. 83rd Street

Seattle, WA 98103

Robert Romeo

4318 Powell Place, S.

Seattle, WA 98108

Robert A. Hasegawa, Secretary-Treasurer

Teamsters Local Union 174

553 John Street

Seattle, WA 98109

Diana Rudolph

1235 N.E. 152nd Street

Shoreline, WA 98155

James P. Hoffa

2593 Hounds Chase

Troy, MI 48098

Bradley T. Raymond

Finkel, Whitefield, Selik

  Raymond, Ferrara & Feldman, P.C.

32300 Northwestern Highway

Suite 200

Farmington Hills, MI 48334

Jerry Halberg et al.

September 18, 1996

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Re:  Election Office Case Nos. P-900-LU174-PNW

P-934-LU174-PNW

P-938-LU174-PNW

Gentlepersons:

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 Jerry Halberg, Willette Mitchell, and Robert Romeo, all members of Local Union 174.  Because of the related nature of these protests, they were consolidated by the Election Officer.

Jerry Halberg et al.

September 18, 1996

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In P-900-LU174-PNW, Mr. Halberg alleges that Robert Hasegawa, secretary-treasurer of Local Union 174 and editor of Local 174 Teamster Times (“Teamster Times”) edited a delegate report of Convention proceedings in the July-September edition (“delegate report”) submitted by Mr. Halberg’s slate in an “uneven and unfair” manner in violation of the Rules.  Mr. Halberg also alleges that Mr. Hasegawa did not allow Mr. Halberg sufficient time to prepare the report, and that the report of alternate delegate Diana Rudolph (“alternate report”) was afforded a disproportionate amount of space in the publication and amounted to a political attack on the other elected delegates and alternates.

In P-934-LU174-PNW, Ms. Mitchell alleges that the article written by Ms. Rudolph “contains blatant false statements about the delegates to the convention.”  She contends that the article was printed for political reasons and that Mr. Hasegawa and Ms. Rudolph colluded prior to the article’s publication.

In P-938-LU174-PNW, Mr. Romeo alleges that Ms. Rudolph’s article contained “deliberate inaccuracies” about his behavior at the Convention.  He counters her characteriza-tions as false and requests that a retraction be printed at Ms. Rudolph’s expense.

As to Mr. Halberg’s protest, the local union responds that the editing was done by an outside contractor and nothing substantive was altered.  In addition, the local union contends that the space given to Ms. Rudolph was not out of proportion to that provided to the Hoffa delegates. 

As to the allegations by Ms. Mitchell and Mr. Romeo, Ms. Rudolph responds that she referred to the Local Union 174 delegates in a general way, that she believed that the protesters were pro-Hoffa and that the delegation generally acted as a group.

Regional Coordinator Christine M. Mrak investigated the protest.

1.              Allegations Concerning the Delegate Report

Mr. Halberg contends that he and his slate members were given only four days to submit a completed version of their report so that it could be published in the Teamster Times. Mr. Halberg further contends that Mr. Hasegawa changed the report’s title, altered the subtitle and a photo caption, and reduced the font size of the text and combined paragraphs to accom-modate Ms. Rudolph’s report.  He alleges that Mr. Hasegawa made these alterations because he is of a different political affiliation than the members of Mr. Halberg’s slate and to increase the prominence of Ms. Rudolph’s report.  Mr. Halberg states that both Ms. Rudolph and

Mr. Hasegawa are supporters of Ron Carey, incumbent general president and candidate for reelection.

The investigation revealed that Mr. Hasegawa set August 9, 1996 as the deadline for submission.  He communicated this date in a letter sent to Mr. Halberg on August 2, 1996.  Mr. Halberg received this letter on August 5, 1996.  Mr. Halberg claims that Ms. Rudolph and Local Union 174 were allotted more time to submit copy for the publication. 

Jerry Halberg et al.

September 18, 1996

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Mr. Hasegawa denies this allegation and credibly stated that the deadlines are governed by the schedule of the outside contractor who edits the publication, Bill McCarthy.[1] 

As to the contentions that the delegates report was edited or altered, Mr. Hasegawa responds that any editing or alteration of the article was done by the contractor,

Mr. McCarthy.  He denies altering the delegate report for any political reason and contends that the content of the report was not altered.  He also denies that disproportionate space was given to Ms. Rudolph for her alternate report.

The articles relevant to Mr. Halberg’s protest appear on page five of Volume 5, Number 3 of the July-September edition of the Teamster Times.  The delegate report is preceded by a two-line headline that is the width of the page.  The following text is arranged in three columns.  The delegate report takes up all of the first and third columns and the top half of the second.  In the top half of the second column, a column-wide photograph of Local Union 174’s delegates and two small individual photographs of the local union’s alternate delegates other than Ms. Rudolph accompanies the delegate report.  A caption appears under the delegate photo and another is positioned to the right of the alternate delegate photos.

The article begins with the headline “Elected Delegates’ And Alternate Delegates’ Reports On the IBT’s 25th Convention in Philadelphia, Pennsylvania July 15-19, 1996.”  The article’s authors, the delegates and alternates--with the exception of Ms. Rudolph--are then identified in a six-line byline that is printed in bold, all-capitals type.  The font size of the text of the article is slightly smaller than most of the text in the rest of the publication.

During the investigation, Mr. Halberg submitted a draft of the article first provided to him for his approval by Eric Smith, managing editor of Teamster Times and staff supervisor for Local Union 174.  This draft was four columns wide and had a larger space for photographs than the one that appeared in the issue.  Mr. Halberg edited the draft by crossing out the proposed headline:  “A Pro-Hoffa Perspective Offered by the Local Union 174 Elected Delegates.”  Mr. Halberg approved the bank that appeared beneath this headline:  “Elected Delegates’ Report on the International Brotherhood of Teamsters 25th Convention in Philadelphia, Pennsylvania July 15-19, 1996.”

By a separate letter dated August 12, 1996, Mr. Halberg stated that he wished the following language be included in the article:

Jerry Halberg et al.

September 18, 1996

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Note: This report was prepared by the seven (7) Local 174 Convention Delegates and two (2) of the three Alternate Delegates.  It should be noted that Alternate Delegate Diana Rudolph declined to participate in the process of preparing this report.

The investigation revealed that the pre-printing edits to the text requested by

Mr. Halberg were made by Mr. McCarthy, who formats Teamster Times for publication.  During the editing process, Mr. McCarthy removed the proposed headline rejected by

Mr. Halberg and elevated the bank to be the new headline.  Instead of using the language

Mr. Halberg included in his letter of August 12, 1996, which highlighted Ms. Rudolph’s refusal to participate, Mr. McCarthy gave the participating delegates a byline that did not mention Ms. Rudolph.  He then added a sentence to the caption of the alternate delegates’ photographs that read, “The comments of the other 174 elected alternate delegate, Diana Rudolph, are printed separately below.”

Mr. McCarthy made changes to the font and photographs in order to fit the comments of all delegates and alternate delegates on one page.  The font is readable and individual features are clearly recognizable in the photographs.  Mr. McCarthy also merged some paragraphs in the interest of saving space.  The textual content of the article, however, was not altered.

Given these facts, the Election Officer concludes that Mr. Halberg’s slate has not suffered adverse treatment due to their political affiliations.  In this case, the Election Officer does not need to reach the question of whether substantive editing of an article of a political opponent would violate the Rules.  Here, all the alterations were made for reasonable editorial reasons and there was no substantive editing.

2.              Alternate Report

Mr. Halberg alleges that Ms. Rudolph was afforded a disproportionate amount of space for the presentation of her views in the Teamster Times.  In addition, Mr. Halberg alleges that the content of the alternate report and the inclusion of a photograph depicting Ms. Rudolph and Mr. Carey amounts to campaigning in a union-financed publication in violation of the Rules.  Mr. Halberg contends that Ms. Rudolph should not have been allowed to print her own report because she was offered an opportunity to participate in the preparation of the delegate report but refused.  Mr. Halberg also insists that Ms. Rudolph did not write the alternate report and requests that the authorship of the article be determined.

Ms. Rudolph’s report occupies the second half of the second column of the page on which the delegate report appears.  Thus, the alternate report occupies approximately one-sixth of the page.  The report is entitled, “An Independent Convention Report.”  Following this title, Ms. Rudolph is identified in the byline.  The article is accompanied by a small photograph of Ms. Rudolph with Mr. Carey.  The caption of the photograph identifies both individuals depicted and identifies Mr. Carey as IBT General President.

Jerry Halberg et al.

September 18, 1996

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The article begins with the statement, “I am writing this separate report because the Teamsters 4 Teamsters delegates do not represent my views.”  She then goes on to state that she disagreed with the positions the members of the protester’s slate took at the Convention.  In the second paragraph, Ms. Rudolph states she was “shocked” by the disruptions caused by “the Hoffa delegates, alternate delegates and guests throughout the Convention.”

The third paragraph begins, “Despite what they may say, Local 174’s delegates and alternate delegates (except me) were all pro-Hoffa at the Convention.”  She states that the members of the Teamsters 4 Teamsters slate attended Hoffa rallies and events, stayed at the same hotel as Mr. Hoffa, and “voted the Hoffa party line.”

Ms. Rudolph then compliments Mr. Carey’s performance as Convention chair, stating that he acted to protect “the membership and a strong International Union.”  She concludes the fifth paragraph with the statement, “This Convention really opened my eyes to the vast difference between the Carey and Hoffa goals.  I truly believe that Ron Carey wants what’s best for the membership and is fighting for a stronger, cleaner, democratic union.”

Mr. Halberg contends that Ms. Rudolph’s article constitutes the use of a union-financed publication to campaign.  He states that the article should not have been printed because

Ms. Rudolph was offered an opportunity to participate in the drafting of the delegate report.  The Election Officer has previously held, however, that the publication of separate accounts of convention proceedings by delegates and alternates does not violate the Rules.  In Chalfant, supra, the Election Officer determined that the publication of such accounts in a joint council newspaper was permissible even though the majority of the delegates and alternates quoted were critical of Mr. Carey’s performance as Convention chair.  The Election Officer rejected the contention of the protester that the publication of their comments constituted campaigning for Hoffa since most of the delegates and alternates in local unions affiliated with the joint council were supporters of Mr. Hoffa. 

In Chalfant, the publication of the comments did not violate the Rules because the joint council had attempted to publish the comments of all relevant delegates and alternates, not just a selected pool.  Such inclusion allowed the delegates and alternates to perform their duty to report to the membership without discrimination by the medium in which they make their report.

In the present case, the publication of Ms. Rudolph’s report in the Teamster Times did not violate the Rules.  As is made clear by the text of both reports, Ms. Rudolph had a very different view of the Convention proceedings.  The inclusion of an alternate report by the only member of the delegation not on the Teamsters 4 Teamsters slate does not violate the Rules. 

Jerry Halberg et al.

September 18, 1996

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The Election Officer also finds that Ms. Rudolph was not granted a disproportionate amount of space in the publication for the presentation of her views.  Her report occupies one-sixth of the page dedicated to delegate reports.  The Teamsters 4 Teamsters’ delegate report completely surrounds the alternate report on three sides.  The delegate report is accompanied by photographs of the nine delegates and alternates who sanctioned the report.  The layout of the report page clearly indicate that Ms. Rudolph’s report represents the views of a distinct minority in Local Union 174’s Convention delegation.  The space granted for the expression of those views does not, therefore, violate the Rules.

3.              Content of the Alternate Report

Mr. Halberg also contends that the content of Ms. Rudolph’s report and the accompanying photograph of Ms. Rudolph and Mr. Carey amounts to campaigning, in violation of the Rules.  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 increased. 

Jerry Halberg et al.

September 18, 1996

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              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.  The Election Officer recognizes 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.  Thus, coverage of Convention proceedings and activities by union-financed publications violates the Rules only 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 Chalfant, supra.  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.

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.

The tone and content of Ms. Rudolph’s column are highly complimentary of

Mr. Carey in his role as Convention chair and critical of Mr. Hoffa and his supporters at the Convention.  Ms. Rudolph describes Mr. Carey’s performance as Convention chair as “brilliant” while describing the Hoffa supporters as exhibiting “disrespect for democracy and democratic principles.”  She writes of the “vast difference” between the goals of

Messrs. Carey and Hoffa and states that Mr. Carey “wants what’s best for the membership and is fighting for a stronger, cleaner, democratic union.”

In examining comments of delegates, a majority of whom were pro-Hoffa, in Chalfant, the Election Officer stated:

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 observations 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. 

Jerry Halberg et al.

September 18, 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.

For similar reasons, while Ms. Rudolph clearly praises Mr. Carey, in the context of the majority of delegates who criticize his actions, the Election Officer finds that article does not constitute a violation of the Rules.

4.              Allegations Concerning the Veracity of Ms. Rudolph’s Report

Mr. Romeo and Ms. Mitchell challenge the veracity of Ms. Rudolph’s description of their political affiliation and activity at the Convention.  Ms. Mitchell alleges that

Ms. Rudolph’s observations were printed for political reasons.  Mr. Romeo describes

Ms. Rudolph’s characterizations as “deliberate inaccuracies” intended to give a “a false picture of my behavior at the 1996 Convention.”  In his protest, Mr. Halberg labels

Ms. Rudolph’s statements “a political attack on the other delegates and alternates.”

Neither Mr. Romeo nor Ms. Mitchell allege that Ms. Rudolph’s comments support or attack the candidacy of any individual.

The investigation revealed that Ms. Rudolph made the protested statements because she perceived that, prior to the Convention, the Teamsters 4 Teamsters slate had attempted to convince the members of Local Union 174 that they were non-partisan when, in fact, they actively supported Mr. Hoffa’s candidacy. 

The Election Officer finds that these statements were intended by Ms. Rudolph to counter any claims made by the slate that it was non-partisan.  Ms. Rudolph’s attempt to counter assertions of the Teamsters 4 Teamsters slate does not violate the Rules.  In making this attempt, she does not support or attack the candidacy of any individual as required under the Rules in order to demonstrate an impermissible use of a union-financed publication to campaign.  Mr. Halberg characterizes Ms. Rudolph’s assertions as political attacks against her fellow delegates and alternates.  Even if true, in the context presented here, this would not violate the Rules.

Accordingly, the protests are DENIED.

Jerry Halberg et al.

September 18, 1996

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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