October 28, 1996
VIA FACSIMILE & UPS OVERNIGHT
James P. Hoffa & J. Allen Hobart
October 28, 1996
Page 1
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Fax (313) 568-4921
J. Allen Hobart, Secretary-Treasurer
Teamsters Local Union 760
1211 W. Lincoln Avenue
Yakima, WA 98902
Fax (509) 452-7354
Ed J. Mireles, Secretary-Treasurer
Teamsters Local Union 952
140 S. Marks Way
Orange, CA 92668
Fax (714) 978-0576
Ron Carey Campaign
c/o Nathaniel K. Charny
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
Fax (212) 695-5436
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman, P.C.
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
Fax (810) 855-6501
James P. Hoffa & J. Allen Hobart
October 28, 1996
Page 1
Re: Election Office Case Nos. P-1053-LU952-CLA
P-1088-LU952-CLA
Gentlemen:
Related pre-election protests were 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 member of Local Union 614 and a candidate for general president, and J. Allen Hobart, a member of Local Union 760. Both protesters allege that the coverage received by Ed J. Mireles, secretary-treasurer of Local Union 952 and a candidate for Western Region vice president on the Ron Carey No Corruption-No Dues Increase Slate, in the summer 1996 edition of Local Union 952’s magazine, 952 Reporter, is excessive and amounts to campaigning in a union-financed publication, in violation of the Rules.
James P. Hoffa & J. Allen Hobart
October 28, 1996
Page 1
Mr. Mireles responds that the protests are untimely and denies that the content of the publication constitutes campaigning as defined by the Rules. He states that the issue contained a regularly scheduled annual report with content similar to other annual reports issued in prior years. He also states that the proximity of the publication of the issue and the International officer election occurred because of printer error.
Regional Coordinator Dolly M. Gee investigated the protest.
1. Timeliness
Mr. Mireles argues that because the protested publication “was published in the Summer of 1996,” Mr. Hoffa’s protest, filed on October 3, 1996, and Mr. Hobart’s protest, filed on October 15, 1996, are untimely.
Article XIV, Section 2(b) of the Rules requires protesters to file “within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested.” The short time limits are important in ensuring that alleged violations of the Rules are quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy if a violation is found.
Mr. Mireles states that the protested magazine was published in the “Summer of 1996.” The magazine is labeled as the Summer 1996 edition. During the investigation, however, Mr. Mireles explained that because of a printer’s error, the printing and distribution of the magazine was delayed until September 26, 1996. Mr. Mireles provided the Election Officer with documentary evidence to support this assertion. Thus, the delay between the actual distribution date of the magazine and the filing of the protests is not unreasonable given the reality of the postal system. As a result, Mr. Mireles’ argument that the protests are untimely is without merit.
2. Content of the Publication
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:
James P. Hoffa & J. Allen Hobart
October 28, 1996
Page 1
. . . 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.
Messrs. Hoffa and Hobart argue that the coverage received by Mr. Mireles in the protested publication is excessive under the Martin standard, especially given the proximity of the upcoming election.
The investigation revealed that Volume 7, Issue 1 of the 952 Reporter, dated summer of 1996 and subtitled, “Annual Report: Looking At The Pace-Setting Contracts,” was mailed to the membership of Local Union 952 on September 26, 1996. The publication is 24 pages long, including the front and back covers, and contains 85 photographs. The content of the publication is divided into a general message by Mr. Mireles and reports on negotiation progress and accomplishments in the freight, food and car haul industries and with United Parcel Service (“UPS”).
Inspection of the content of the publication discloses that Mr. Mireles appears in 10 of the 85 photographs and is mentioned by name 32 times. The content of the publication portrays Mr. Mireles’ experience and accomplishments, and his ongoing efforts for each industry. In the initial “Secretary-Treasurer’s Message,” written by Mr. Mireles himself, he lists in detail the different capacities in which he serves the IBT and its membership.
In the section of the publication devoted to the freight industry, the author of the column describes Mr. Mireles as “committed to bringing Teamster members job security and work preservation in the unionized freight industry.” The author continues:
Secretary-Treasurer Ed J. Mireles has a keen understanding of the industry. He began his Teamster career as a freight driver for Hecht Fast Freight 35 years ago, and served as a business agent and executive coordinator for Local 952. He is now serving his third term in the top leadership position. He serves on the National Freight Negotiating Committee and National Grievance Panel and monitors the industry on a daily basis.
Mr. Mireles’ concerns, plans and observations concerning the freight industry are described in the next four paragraphs and in the final paragraph of the article.
The next article describes the efforts of the local union and Joint Council 92 to end damaging practices in the car haul industry. The article highlights statements made by
Mr. Mireles concerning the effectiveness of local union efforts in that area.
James P. Hoffa & J. Allen Hobart
October 28, 1996
Page 1
The article following the car haul report concerns developments in contract negotiations with UPS. Towards the end of the article, Mr. Mireles is identified as serving on the National Negotiating Committee and National Premium Service Committee. In his secretary-treasurer’s column, Mr. Mireles also identified himself as serving on these committees.
The next article is entitled, “The Food Industry: How Negotiations Evolve” and contains a section which appears under the heading “Mireles Helps Turn the Tide with Significant Contract Gains.” This section details Mr. Mireles’ participation in efforts to upgrade the pensions of food industry workers, reform the retirement qualification and improve the health plan.
The last article, entitled, “‘Rule of 84’ An Early Retirement Proposal” contains the following passage:
‘Rule of 84’ didn’t come easy. It took the tenacity of Secretary-Treasurer Ed J. Mireles, who is a principal negotiator on all the major contracts. It was Mireles who first proposed the new benefit to the Western Conference Pension Trust and fought fiercely to win its approval.
The frequent mention of Mr. Mireles, his frequent appearance in photographs, the repetition of his service record and the praise he receives for his actions, when considered together, constitute excessive coverage of Mr. Mireles, in violation of the Rules. The coverage of Mr. Mireles was not simply to report on events in which Mr. Mireles was a participant or speaker. Rather, the coverage was largely gratuitous in that it praised his experience and his general role in the affairs of the local union. As the Martin standard indicates, the test of what is excessive becomes much more stringent as the election approaches. Coverage of a candidate’s fulfillment of his or her duties of office that may not be excessive at a time more remote from the election becomes excessive in the more sensitive period prior to the mailing of ballots. The protested publication was not sent to members until the end of September 1996. Ballots will be mailed to members on November 10, 1996. Given the proximity of the publication and the mailing of ballots, the coverage received by Mr. Mireles violates the Rules.
Mr. Mireles argues that the timing of the distribution occurred because of printer error. He has provided persuasive evidence to indicate that he intended the publication to be distributed to the members prior to the close of summer. The evidence indicates that Local Union 952 submitted copy materials for the protested publication to its printer, A to Z Printing, on July 12, 1996. Revisions and proofreading were completed by August 7, 1996. On August 22, 1996, the printer received final approval to produce the publication from the local union. Production delays, caused by a personnel shortage at the printer, postponed the mailing of the publication until September 26, 1996.
James P. Hoffa & J. Allen Hobart
October 28, 1996
Page 1
While Mr. Mireles has adequately demonstrated that the late print date was caused by the shortcomings of A to Z Printing, his argument that he and the local union should not be held responsible for the ultimate distribution date is not persuasive. As the principal officer of Local Union 952, Mr. Mireles is responsible for the communications issued by the local union. Because of the delay in printing, Mr. Mireles should reasonably have taken steps to ensure that material that could be interpreted as campaigning under the Rules be removed from publications distributed so close to the ballot mail date.
In addition, Mr. Mireles failed to submit a copy of the protested publication for review and approval by the Election Officer. Article VIII, Section 8(e) of the Rules establishes a procedure whereby local unions are required to submit the proposed copy of union-financed publications and communications to the Election Officer for review and approval if such communications will potentially be received by members between October 1, 1996 and December 20, 1996. In her Publication Review Advisory (“Advisory”), sent to all IBT affiliated bodies on August 16, 1996, the Election Officer clearly stated that publications reasonably likely to reach members after October 1, 1996, including those mailed in “mid to late September,” must be submitted for review and approval. Had Local Union 952 complied with this requirement, it would have had an opportunity to receive the determination of the Election Officer as to whether the content of the publication would have violated the Rules if distributed. Since the local union failed to follow this procedure, the details of which were transmitted to it in August 1996, the local union cannot now argue that it was unaware of the heightened scrutiny or the importance of timing in the distribution of its publication.
Mr. Mireles argues that the coverage is not excessive because it is substantially equal to the coverage received by Mr. Mireles in prior annual reports. The circumstances of the publication of these reports, however, are not identical. Mr. Mireles states that the prior annual reports were published in July or August. Had the protested publication been published at the time customary for the release of the annual report, it might not have violated the Rules because the coverage of Mr. Mireles may not have been excessive when compared to the prior reports. Such an analysis is inapplicable here because the protested publication was not released until late September. This delay represents a departure from the customary practice of the local union and leads the Election Officer to apply a more stringent test to determine whether the coverage received by Mr. Mireles is excessive under the Martin standard. Such a stringent analysis is even more important because of the close proximity of the election, in which Mr. Mireles is a candidate.
Accordingly, the protests are GRANTED.
When the Election Officer determines that the Rules have been violated, she “may take whatever remedial action is appropriate.” Article XIV, Section 4. In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.
James P. Hoffa & J. Allen Hobart
October 28, 1996
Page 1
The Election Officer has determined that resources of Local Union 952 were used to promote the candidacy of Mr. Mireles, who is a candidate for vice president of the Western Region on the Ron Carey No Corruption-No Dues Increase Slate. A similar benefit will be provided allowing the opposing regional vice-presidential candidates to present themselves to the membership of the local union. Accordingly, the Election Officer orders the following:
1. By Thursday, October 31, 1996, the three candidates for Western Region vice president on the Hoffa slate, Jon Rabine, Jim Santangelo and Chuck Mack, may submit to
Mr. Mireles one piece of campaign literature each. This literature shall relate solely to these individual candidates and not to their slate or other slate candidates. It must be on 8½11-inch paper and blank on one side.
2. Within three (3) working days of receipt of the literature, Mr. Mireles, at local union expense, will copy this material and mail one copy of each candidate’s literature to every member of Local Union 952. All three copies may be mailed in the same envelope or package.
3. Within one (1) day of the mailing of this material, Mr. Mireles will submit an affidavit to the Election Officer indicating compliance with this order.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).
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
Dolly M. Gee, Regional Coordinator