September 20, 1996
VIA UPS OVERNIGHT
Ken Mee
September 20, 1996
Page 1
Ken Mee
42356 Greenbrier Park
Fremont, CA 94538
Rome Aloise, Secretary-Treasurer
Teamsters Local Union 853
2100 Merced Street
Suite B
San Leandro, CA 94577
Nathaniel K. Charny
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman, P.C.
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
Ken Mee
September 20, 1996
Page 1
Re: Election Office Case No. P-955-LU853-EOH
Gentlemen:
Ken Mee, IBT Western Region vice president and candidate for re-election, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election ("Rules") alleging that Local Union 853 improperly supported the candidacy of James P. Hoffa for IBT general president by mailing a report to members on the IBT Convention that is critical of General President Ron Carey and favorable to Mr. Hoffa.
This protest was investigated by Regional Coordinator Matthew D. Ross.
The outside of Local Union 853's report is set up as a mailer. Across the front is "Convention Report" and the back bears the banner, "Please take a moment to read this."
Inside, the following statements appear on a single page. They are printed in a large typeface and are enclosed in a border.
Ken Mee
September 20, 1996
Page 1
The members of Local 853 paid hard earned dues money to send delegates and alternates to the 1996 IBT Convention.
Our election delegates were pledged to make sure that members' rights and local union autonomy was protected.
Because of the lack of democracy at the Convention, we came home empty handed.
Open this and read all about it!
The body of the report covers two pages. It is separated into an article entitled "What You Lost!," which takes up approximately one and one-half pages, and an article entitled "A Different Point of View," which takes up the rest.
The "What You Lost!" article is highly critical of the conduct of Ron Carey as Convention chair. The first section of the article states that Mr. Carey was responsible for preventing debate on the issues of rebuilding the strike fund, capping IBT salaries, protecting against forced mergers, and protecting against politically-motivated trusteeships. The following section, under the banner "No Democracy Here!," contains the statement that Mr. Carey "was nothing more than a heavy handed, unethical, and completely dictatorial chair, while completely taking away the Convention's right to run our Union" and refers to Mr. Carey's parliamentary decisions as under "Ronald's Rules of Order."
The following sections of the article are day-by-day summaries of Convention events. Under "The First Day Told the Story," the article criticizes the seating of delegates appointed by Mr. Carey, stating that the voice vote on the matter was in the negative although Mr. Carey ruled that it was positive, and that Mr. Carey then refused to honor calls for a division of the house. It states that Mr. Carey's actions "surprised and disgusted any delegate that truly believed in a democratic process." Under "Wednesday," it identifies delegates opposed to Mr. Carey on "the HOFFA side." Under "Thursday," it states that Mr. Carey ruled that a request to go into a night session was out of order and then notes in italics that "There was a fundraiser for Ron Carey scheduled for Thursday night." Under "Friday," the article criticized the decision of the General Executive Board to hold a special convention in the spring of 1997, stating:
Many hundreds of members and retirees spent their own money to go and witness their Union's Convention, and now the Ron Carey General Executive Board has the guts to attempt to make themselves look like heroes by calling another Convention next year. Our International Union needs honest and competent leadership. There was nothing honest or competent about the way this Convention was run. Let's hope the next one is different.
Ken Mee
September 20, 1996
Page 1
The final section of the article, entitled "Silver Lining," states that Mr. Carey "clearly showed all of us that he only cares about his own agenda, and the membership be damned." The article is shown as submitted by five of the local union's six Convention delegates (Rome Aloise, Jim Travis, John Becker, Sr., Antonio Christian, and Ken Avila), the local union's alternate delegate (Dan Harrington), and one other person (Joe DiPrisco).
The second article is shown as submitted by the local union's sixth delegate,
Bob Gunnerson, who states that he was the only delegate pledged to the Ron Carey slate. His article is generally favorable to Mr. Carey's actions and critical of the actions of Mr. Hoffa and his supporters. He states: "It was clear from the outset that this Convention was first and foremost a political fight. The campaign for the leadership of our Union will bring to light each side's view of what occurred." He characterizes the division among delegates at the Convention by stating, "From the opening gavel, the Hoffa forces were intent on disrupting the convention," and "The Carey forces, intent on preserving the power of the International, turned around some of the tactic used by the opposition." He concludes by stating that he met "committed brothers and sisters on both sides of the political aisle, committed to serving fellow workers and fighting for our future."
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 member-ship 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.
Ken Mee
September 20, 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, P-882-JC28-PNW et seq. (September 6, 1996).
In several recent decisions, the Election Officer addressed union-financed Convention reporting that adopted the different viewpoints represented in the two articles constituting Local Union 853's Convention report. Chalfant (August 1996 issue of Joint Council 28’s Washington Teamster, which included an article “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”); Hoffa, P-870-PACONF-SCE (September 6, 1996) (July 1996 issue of Pennsylvania Conference of Teamsters’ Conference Report, which commented negatively on disruptive floor behavior); Rodriguez, P-888-LU630-CLA (September 6, 1996) (Convention report by Local Union 630 delegates, which attributed failure of Convention to reach certain issues on undemocratic action and abuse of Parliamentary procedure by Mr. Carey). In each of those matters, the Election Officer found that the publication was not required to present all views, and that the reporting in each case was within the scope allowed by the Rules.
Mr. Mee protests that Local Union 853's Convention report "was nothing more than very thinly disguised campaigning on behalf of the Jimmy Hoffa, Jr. slate of candidates" containing "countless allegations against IBT General President Ron Carey." This allegation refers to the page containing the large-print statements and to the "What You Lost!" article. Mr. Mee acknowledges the "A Different Point of View" article but states, "In my view, [Local Union 853 Secretary-Treasurer and delegate] Aloise knew the report was nothing but political and campaigning when he sent it out, hence the opportunity, albeit terribly unbalanced, for some type of rebuttal."
The Election Officer finds that the tone, content and timing of the large-print page and the "What You Lost!" article do not distinguish them from the publications found not to violate the Rules in Chalfant, Hoffa, and Rodriguez. The Election Officer finds that the tone of those portions of the Convention report are very critical of Mr. Carey's conduct as Convention chair. However, the Rules do not generally restrict the ability of IBT members to criticize the conduct of legitimate union business by their leaders. “[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.” Martin. “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). The tone of the protested portions of Local Union 853's Convention report expresses the strong disagreement of the authors with Mr. Carey on the issues involved in the
Ken Mee
September 20, 1996
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matters reported on the Convention. It falls within the range that the Election Officer has permitted with respect to Convention reporting.
In content, the protested portions generally concern Mr. Carey's conduct as Convention chair, the subjects that were or were not reached at the Convention, and the deep divisions among delegates. These subjects are of potentially great interest to members, and reporting on them in a union-financed publication does not violate the Rules. As noted above, all viewpoints need not be presented.
As to the specific content of the protested portions of the report, the Election Officer notes that Convention delegates opposed to Mr. Carey are identified in one passage as on "the HOFFA side." The Election Officer recognized, however, in Hoffa, P-871-IBT-EOH (September 13, 1996), that "Mr. Hoffa's supporters had a legitimate right at the Convention to oppose the initiatives of the IBT with which they disagreed" and that "[t]he actions of
Mr. Hoffa's supporters were distinct from their political support of Mr. Hoffa." The fact that a substantial group of delegates opposed to Mr. Carey's actions as Convention chair are identified with Mr. Hoffa does not convert the content into campaigning.
Under "Thursday," it is stated that Mr. Carey avoided holding a night session and that there was a fundraiser for him that evening. The implication of these statements, if true, is that Mr. Carey allowed his personal interests to affect the business of the Convention, which would reflect on his conduct as Convention chair and not necessarily show campaign content.
Under "Friday," it is stated that "Our International Union needs honest and competent leadership." Coming at the end of an article that is highly critical of Mr. Carey's actions at the Convention, such a statement does not exceed the scope of commentary that the Election Officer has permitted in Convention reporting.
With respect to timing, the Election Officer notes that Local Union 853's Convention report carries a July 1996 date, which indicates timely coverage of an event of general interest to members.
Lastly, Mr. Mee protests that the minority-view article is substantially shorter than the article written by the majority of the local union's Convention delegation. In Halberg, P-900-LU174-PNW et seq. (September 18, 1996), the Election Officer examined a Convention report that also consisted of majority and minority articles of different lengths and found that this difference was permissible: "[t]he layout of the report page clearly indicates that [the shorter] report represents the views of a distinct minority in [the local union's] Convention delegation. The space granted for the expression of those views does not, therefore, violate the Rules." As noted above, union-financed publications are not required to present all points of view.
For the foregoing reasons, the protest is DENIED.
Ken Mee
September 20, 1996
Page 1
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, DC 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
Matthew D. Ross, Regional Coordinator