Protest Decisions

              November 8, 1996

VIA UPS OVERNIGHT

James P. Hoffa & Jerry Halberg

November 8, 1996

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

Jerry Halberg

7903 S. 124th Street

Seattle, WA  98178

Robert A. Hasegawa, Secretary-Treasurer

Teamsters Local Union 174

553 John Street

Seattle, WA  98109

Diana Kilmury, Vice President

International Brotherhood of Teamsters

2612 E. 47th Avenue

Vancouver, BC  V5S 1C1

Legal Department

Turner Network Television

1050 Techwood Drive

Atlanta, GA  30318

Ron Carey Campaign

c/o 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

James P. Hoffa & Jerry Halberg

November 8, 1996

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Re: Election Office Case Nos.              P-1108-LU174-PNW

                               P-1109-LU174-PNW

Gentlepersons:

Related pre-election protests have been 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 Jerry Halberg, a member of Local Union 174, against the following:  Local Union 174; Robert A. Hasegawa, secretary-treasurer of Local Union 174; Diana Kilmury, International vice president and a candidate for reelection; and Turner Network Television (“TNT”).  The protesters allege that Local Union 174 made an improper contribution to

James P. Hoffa & Jerry Halberg

November 8, 1996

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Ms. Kilmury’s campaign and to the Ron Carey No Corruption-No Dues Increase Slate (“Carey slate”) by sending a postcard to its members promoting a movie to be shown on TNT entitled, “Mother Trucker:  The Diana Kilmury Story.”  In P-1109-LU174-PNW, Mr. Halberg also asserts that the postcard constitutes an improper employer contribution by TNT to the campaigns of Ms. Kilmury and the Carey slate.  In P-1108-LU174-PNW, Mr. Hoffa asserts that the broadcast of the movie itself on October 22, 1996 violated the Rules.

Mr. Hasegawa responds that Local Union 174 received the postcards from the IBT and mailed them to stewards and local union activists.  He believed the IBT’s purpose was to inform members of a movie about an International officer and did not realize that the postcard could be considered campaign material.  The Carey campaign states that it sent the postcards to Local Union 174.

Because these protests raise identical legal and factual issues, the Election Officer has consolidated them for decision.

Regional Coordinator Christine M. Mrak investigated the protests.

The Election Officer’s investigation reveals that on October 16, 1996, Local Union 174 mailed one copy of the postcard to approximately 450 members, including Mr. Halberg.[1] 

The postcards were stamped with the local union’s postage meter mark, number 8109077.  Mr. Halberg received the postcard on October 18.

The front of the postcard is divided down the middle by a black line.  To the right of the line is the recipient’s address and the postage mark.  On the top of the left-hand side of the card, the words “Mother Trucker/The Diana Kilmury Story” are printed in bold, capital letters, with the following text set forth below:

The gripping, true story of a single mother who would do anything to take care of her family, even if it meant taking on organized crime. MOTHER TRUCKER:  The Diana Kilmury Story is a classic triumph of right over might.

“This is one of these movies in which everything-from direction

. . . to script . . . to (an) extraordinary performance-comes together, creating an exceptionally truthful and unusual experience.”

-Toronto Star

James P. Hoffa & Jerry Halberg

November 8, 1996

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Across the bottom of the card the caption “Tuesday, October 22, 8 PM on TNT” is written in bold, capital letters.

The back of the postcard displays a picture of Ms. Kilmury with the title of the movie  printed to the left of the photograph in bold, capital letters.  The movie is described as “A true story of greed, corruption, discrimination.  She dared to challenge the rules in a man’s world.”  The date and time of the movie are again stated and TNT is identified.

The Carey campaign states that it mailed the postcards to Local Union 174. 

Mr. Hasegawa states that he assumed the postcards came from the IBT because there was no accompanying memo or letter indicating that the package was from the Carey campaign.

1.              Allegations That Postcard Is Campaign Material

Article VIII, Section 8(a) of the Rules states that “No publication or communication financed, directly or indirectly, by a Union may 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 seq. (August 17, 1995) (decision on remand), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995).

In the instant protests, Local Union 174 sent a card to 450 of its active members on October 16, 1996.  The communication urges these members to watch a television movie entitled, “Mother Trucker:  The Diana Kilmury Story” on October 22, 1996.  The text of the postcard is extremely laudatory of Ms. Kilmury, stating, for example, that the movie depicts “a classic triumph of right over might.”  Ms. Kilmury is an International vice president-at-large based in Vancouver, British Columbia.  It is a close question whether a local union could, as legitimate union business, send out the promotional postcard regarding a show on one of its International officers.  The Election Officer finds that, given the proximity to

the election, this distribution by the local union could be seen as support for candidate

Diana Kilmury and, therefore, violated the Rules.

As the Election Officer recently stated, “the test [under Martin] of what is excessive becomes much more stringent as the election approaches.”  Hoffa et al., P-1053-LU952-CLA et seq. (October 28, 1996).  Ms. Kilmury is a candidate for International vice president-at-large and the members of Local Union 174 will have an opportunity to vote for her when they receive ballots in November.  Given the proximity of the mailing of the postcard, and the airing of the movie which it advertises, to the election, the Election Officer finds that the postcard constitutes campaigning and, therefore, Local Union 174 violated the Rules by mailing the promotional material to its members.  See Hoffa, supra.

2.              Use of Union Resources to Campaign

James P. Hoffa & Jerry Halberg

November 8, 1996

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The investigation revealed that the Carey campaign mailed the postcards to Local Union 174’s offices.  In Buck, P-919-LU745-SOU (November 5, 1996), the Election Officer had an opportunity to review whether the practice of mailing campaign literature to union halls violates the Rules.  In affirming the 1991 decision in Committee to Elect Ron Carey, P-612-IBT (March 28, 1991), the Election Officer stated:

The Election Officer reaffirms Committee to Elect to the extent that it permits candidates to send quantities of campaign literature to local unions for proper distribution in accordance with the Rules at Article VIII, Section 7.  The opportunity for candidates to benefit from such distributions, when authorized, must be extended to every candidate for the office on an equal basis.  It is both reasonable and necessary for the Election Officer to impose on candidates who take advantage of this benefit, the obligation to share in the responsibility of assuring that any literature sent to local unions for distribution is disseminated in accordance with the Rules.

The Election Officer will require all candidates sending campaign literature to IBT local unions for distribution to advise them, in writing, that campaign literature may be distributed only in a non-discriminatory manner through the use of a literature distribution table open to all candidates.  The Election Officer recognizes that the Hoffa campaign, and perhaps other campaigns as well, has sent literature to supporters in a local union for distribution outside the confines of the local union.  The Election Officer finds that literature destined for this type of distribution must be sent to a supporter’s home address or to a campaign address.  In this way, all questions about the storing of campaign material and other improper uses of union resources will be avoided.  The Hoffa campaign has indicated it will comply with this procedure.

The Election Officer recognizes, however, that Buck was issued after the Carey campaign

had sent the postcards to Local Union 174.  In any future such distributions by the Carey campaign, the campaign must advise the local union, in writing, that campaign literature may be distributed only in a non-discriminatory manner through the use of a literature distribution table open to all candidates.

As to the distribution of the postcard by the local union, the protesters assert that using union resources to mail the postcard promoting “Mother Trucker” to its members violated the Rules.  Specifically, the protesters point to the use of the local union’s postage meter and the time spent by employees to accomplish the mailing, as well as use of the membership list.

The Rules, at Article XII, Section 1(b)(3) and Article VIII, Section 11(c), bar local unions from providing its resources to a candidate.  These sections state:

James P. Hoffa & Jerry Halberg

November 8, 1996

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No Union funds or other things of value shall be used, directly or indirectly, to promote the candidacy of any individual.  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.

Mr. Hasegawa admits that Local Union 174 used its postage meter and staff time to mail the postcard to 450 local union members.  The Election Officer has held that the use

of local union resources to mail campaign materials to members violates the Rules.  Hoffa,

P-814-LU398-PGH (July 1, 1996), aff’d, 96 - Elec. App. - 212 (KC) (July 17, 1996).  As the Election Officer regards the postcard as campaign material, she finds that Local Union 174 made a prohibited contribution to the Carey and Kilmury campaigns.[2]

Article XII, Section 1(b)(9) of the Rules provides that “Candidates are strictly liable to insure that each contribution received is permitted under the Rules.”  In addition to imposing liability on the contributor, the Election Officer has found that the benefitted candidate is strictly liable.  Hoffa, supra; Pratt, P-469-LU966-NYC (April 2, 1996), aff’d, 96 - Elec.

App. - 168 (April 15, 1996).  The actions taken by Local Union 174 benefitted Ms. Kilmury and the Carey slate.  Accordingly, the Election Officer finds that the mailing of the postcard constitutes a violation of the Rules by Ms. Kilmury’s campaign and the Carey campaign.

3.              Allegations of an Employer Contribution by TNT

In P-1109-LU174-PNW, Mr. Halberg alleges that either TNT, the company that produced “Mother Trucker,” or “some other corporate entity” printed the postcards mailed by Local Union 174 to its members.  Mr. Halberg claims that acceptance of these postcards by the local union “constitutes the acceptance of money or assets from an employer to advance the candidacy of Kilmury and the Ron Carey slate of candidates.”  Mr. Hoffa, in P-1108-LU174-PNW, asserts that the broadcast of “Mother Trucker” on October 22, 1996 “in the context of the present campaign, violates the Rules.”

Article XII, Section 1(b)(1) of the Rules states as follows:

James P. Hoffa & Jerry Halberg

November 8, 1996

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No employer may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate.  No candidate may accept or use such contribution.  These prohibitions are not limited to employers that have contracts with the Union; they extend to every employer, regardless of the nature of the business . . .

The term “campaign contribution” is defined broadly by the Rules as “any direct

or indirect contribution of money or other thing of value where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of

a candidate for   . . . International Officer position.”[3]  In applying this provision to media communications, however, the Election Officer has recognized a broad exception for “publications intended for and disseminated to the general public,” as to which “[t]he First Amendment of the U.S. Constitution requires . . . the greatest latitude in exercising the right to communicate.”  Hoffa, P-743-IBT-SCE (May 23, 1996).  Thus, under a “media exception” to the regulation of campaign contributions, the Election Officer does not exercise jurisdiction over “newspaper or magazine articles published by entities which are not owned or whose editorial policies are not controlled by candidates or committees acting on behalf of candidates.”  Hasegawa, P-161-LU41-MOI (October 24, 1995), quoting Scott, P-969-IBT (October 18, 1991).  The Election Officer has applied this exception to cable and broadcast media.  See Pressler, P-365-LU705-CHI (February 22, 1996) (media exception applied to prime-time radio broadcast of an interview with Mr. Hoffa); Rockstroh, P-1003-JHC-EOH (November 5, 1996) (exception applied to television program, “American Trucking Report,” which reported on the 1996 IBT Convention). 

In the instant protests, there is no allegation or evidence on the record that TNT, or any other company involved with the production of “Mother Trucker” is “owned or [its] editorial policies controlled” by Ms. Kilmury, Mr. Carey or any committee acting on their behalf.  Lack of such ownership or control over a media entity normally results in the media exception being applied, ending the Election Officer’s inquiry.  See Rockstroh, supra; Pressler, supra; Hoffa, supra (allegedly pro-Carey article in the Union Democracy Review); Hasegawa, supra (article covering Hoffa campaign in The Labor Times); Scott, supra (article on 1991 Carey campaign in Labor Notes); Brennan, P-971-IBT (October 16, 1991) (reprinting of Carey campaign material in article on 1991 election in the Detroit Free Press).

Therefore, the Election Officer finds that there is not an improper employer contribution by TNT or another entity involved in the production of the program or the printing of the postcards.

For the foregoing reasons, the protests are GRANTED as to Local Union 174 and as

to the acceptance of a contribution by the campaigns of Ms. Kilmury and Mr. Carey, and DENIED in all other respects.

James P. Hoffa & Jerry Halberg

November 8, 1996

Page 1

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. 

The Election Officer orders the following:

l.  Local Union 174 shall immediately cease and desist from using its resources to promote the candidacy of Diana Kilmury and/or the Ron Carey No Corruption-No Dues Increase Slate. 

2.  The Carey campaign shall reimburse Local Union 174 for the postage used in mailing the postcards advertising “Mother Trucker” to 450 members on October 16, 1996, as well as the time spent on the mailing by local union staff persons.  Within five (5) days of the date of this decision, Local Union 174 shall submit an invoice of these costs to the Carey campaign. 

3.  Within three (3) days of receipt of this decision, Mr. Hasegawa will sign the attached “Notice to Members of Local Union 174” and post it at all local union bulletin boards in the local union hall and on employer work sites.  This notice shall remain posted through December 10, 1996.  Within two (2) days of the date on which the posting is completed, Local Union 174 shall file an affidavit with the Election Officer demonstrating compliance with this order, including a copy of the costs submitted to the Carey campaign.

4.  Within two (2) days of receipt of the invoice from Local Union 174, the Carey campaign shall pay the amount on the invoice to Local Union 174.  Within one (1) day of such payment, the Carey campaign will file an affidavit with the Election Officer demonstrating its compliance with this order and attaching a copy of its check to Local Union 174.

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

James P. Hoffa & Jerry Halberg

November 8, 1996

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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

Christine M. Mrak, Regional Coordinator

              TO ALL MEMBERS OF LOCAL UNION 174

The Election Officer has found that Local Union 174 has used its resources to promote the candidacy of an International officer candidate, in violation of the Election Rules.

Local Union 174 does not endorse any candidate in the International Officer election.

_________________________                                          _______________________________

Date                                                                                                  Robert Hasegawa, Secretary-Treasurer

Teamsters Local Union 174

This is an official notice which must remain posted through December 10, 1996 and must not be defaced or altered in any manner or be covered with any other material.

Approved by Barbara Zack Quindel, IBT Election Officer.