Protest Decisions

December 5, 1996

VIA UPS OVERNIGHT

James P. Hoffa

December 5, 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

Jennifer A. Rubin

Associate General Counsel

Turner Broadcasting System, Inc.

1888 Century Park East, 4th Floor

Los Angles, CA  90087

Ron Carey Campaign

c/o Nathaniel Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY  10036

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

James P. Hoffa

December 5, 1996

Page 1

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

P-1109-LU174-PNW

DECISION ON REMAND

Gentlepersons:

James P. Hoffa

December 5, 1996

Page 1

This matter comes before the Election Officer on a remand from the Election Appeals Master, In Re: Hoffa, 96 - Elec. App. -  284 (KC) (November 25, 1996).  Related pre-election protests were originally 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 candidate for general president, and Jerry Halberg, a member of Local Union 174.  The protesters alleged that Local Union 174 made an improper contribution to the campaign of Diana Kilmury, an International vice president-at-large and a candidate for reelection on the Ron Carey No Corruption-No Dues Increase Slate (“Carey slate”), and to the Carey slate by sending a postcard to its members promoting a television movie about Ms. Kilmury.  The movie, entitled “Mother Trucker:  The Diana Kilmury Story,” aired on Turner Network Television (“TNT”) on

October 22, 1996.  In addition, Mr. Halberg, in P-1109-LU174-PNW, claimed that the postcards represented an improper contribution by TNT to the campaigns of Ms. Kilmury and Mr. Carey, while in P-1108-LU174-PNW, Mr. Hoffa asserted that the broadcast of the movie itself violated the Rules.

              The Carey campaign admitted that it had mailed the postcards to Local Union 174.  Robert Hasegawa, secretary-treasurer of Local Union 174, stated that the local union mailed the postcards to 450 stewards and local union activists on October 16, 1996.  Mr. Hasegawa assumed that the International union sent the postcards because there was no indication that the package came from the Carey campaign. 

Using the tone, content and timing test set forth in Martin, P-010-IBT-PNJ et seq. (August 17, 1995) (decision on remand), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995), the Election Officer found that the promotional postcard constituted campaigning and that Local Union 174 violated Article VIII, Section 8(a) of the Rules by mailing the postcard to 450 of its members.  Furthermore, the Election Officer found that Local Union 174 made an improper contribution to the campaigns of Mr. Carey and Ms. Kilmury by using its postage meter, mailing list, and staff time to distribute the postcard.

Under the principle of strict liability contained in Article XII, Section 1(b)(9) of the Rules, the Election Officer held that the mailing of the postcard by Local Union 174 represented a violation of the Rules by Ms. Kilmury’s campaign and the Carey campaign.

In response to the protesters’ claims that TNT contributed to Mr. Carey’s and

Ms. Kilmury’s campaigns, the Election Officer found that the “media exception” articulated in numerous cases and applied to cable and broadcast media in Pressler, P-365-LU705-CHI (February 22, 1996), applied to TNT.  Therefore, the airing of the movie on this cable network did not constitute a prohibited contribution to the campaigns of Mr. Carey or Ms. Kilmury. 

As a remedy, the Election Officer ordered the Carey campaign to reimburse Local

Union 174 for the postage and staff time used in mailing the postcards to its members on

October 16, 1996.  The Election Officer directed Mr. Hasegawa to sign a “Notice to Members of Local Union 174” and post it on all local union bulletin boards in the local union hall and at employer work sites through December 10, 1996. 

The Election Appeals Master remanded the case “for further necessary investigation and, if appropriate, reconsideration of the imposed remedy” in light of facts that came to his attention  subsequent to the issuance of the Election Officer’s decision on November 8, 1996. 

James P. Hoffa

December 5, 1996

Page 1

The Election Appeals Master referred to a letter addressed to all parties, including the Election Officer, from Jennifer A. Rubin, TNT’s Associate General Counsel, dated November 5, 1996.[1]   Ms. Rubin states that “for the sole purpose of promoting exhibition of the film [‘Mother Trucker’] on TNT,” her company sent 60,000 promotional postcards to a Steve Wattenmaker at his request.  According to Ms. Rubin, Mr. Wattenmaker identified himself to the TNT marketing department “only as ‘an official with the Teamsters.’”[2]  In response to his inquiry, TNT informed Mr. Wattenmaker that the cost for printing the postcards was $2,500.  The letter further stated that TNT had not received any payment from Mr. Wattenmaker.

Ms. Rubin’s letter was brought to the attention of the Election Appeals Master by

Mr. Hoffa in his appeal of the Election Officer’s decision.  Mr. Hoffa asserts that Ms. Rubin’s letter shows that “the violation committed was far broader in scope than originally suspected,  and that it involved the deliberate solicitation by the Carey campaign of an employer contribution from Turner.”  The “minimal remedies” ordered by the Election Officer, Mr. Hoffa states, not only give his campaign “no means to counteract the effects of the blatant misuse of Union resources” by Local Union 174, but also provide “no remedy whatsoever . . . for the more extensive and significant employer contribution that actually occurred.”

Prior to the appeal hearing in this matter, the Election Officer asked for a response to the matters raised in the TNT letter of November 5, 1996.  Counsel to the Carey campaign presented such a response indicating that TNT had inadvertently failed to provide the Carey campaign an invoice for the postcards.  On November 18, in correspondence to the Election Appeals Master and the Election Officer, the campaign provided a copy of an invoice from TNT and a check from the Carey campaign to TNT in the amount of $2,009.

The investigation conducted by the Election Officer pursuant to the direction of the Election Appeals Master revealed the following.  Steve Wattenmaker contacted TNT toward the end of September 1996, when he learned that the company planned to air “Mother Trucker” on October 22, and spoke with Tammy Demel, an employee in TNT’s marketing department.  There appears to be some confusion as to whether TNT understood Mr. Wattenmaker was calling for the Carey campaign or the IBT.  Mr. Wattenmaker asked Ms. Demel about promo-tional materials for the film.  Mr. Wattenmaker and Ms. Demel exchanged numerous telephone calls over the next several days.  According to Mr. Wattenmaker, whenever Ms. Demel called his office, her call was answered by the receptionist with the salutation “the Ron Carey campaign.” 

During one of these telephone conversations, Mr. Wattenmaker told Ms. Demel that the Carey campaign might be required to pay for the promotional materials, and Ms. Demel gave him an estimate of $2,500 for the cost of printing the postcards.  In the first week of October,

James P. Hoffa

December 5, 1996

Page 1

Mr. Wattenmaker received an advisory opinion from counsel to the campaign stating that the campaign should reimburse TNT for the cost of the promotional materials.  The following day, Mr. Wattenmaker left a message on Ms. Demel’s voice mail, requesting an invoice for the cost of the postcards. 

       Mr. Wattenmaker states that when the Carey campaign had not received an invoice from TNT by the end of October he asked a colleague named Renee Asher to contact

Ms. Demel.  Although Ms. Asher called Ms. Demel several times, no invoice was sent to the campaign.  Upon the campaign’s receipt of Ms. Rubin’s letter on November 12, 1996,

Mr. Wattenmaker immediately contacted Ms. Demel.  According to Mr. Wattenmaker,

Ms. Demel stated that she had inadvertently neglected to send him an invoice and would take care of it right away.  That same day, Ms. Demel forwarded to the campaign an invoice for $2,009 which the campaign paid on November 13, 1996.  The Election Officer has reviewed a copy of the invoice and the check sent by the Carey campaign to TNT.

As to the distribution of the postcards by the Carey campaign, Mr. Wattenmaker received the postcards promoting “Mother Trucker” from TNT around October 11, 1996.  On October 14 and 15, Mr. Wattenmaker states, the campaign mailed a single copy of the postcard to 7,100 activists.  At the same time, the campaign sent packages of the postcards by overnight or two-day mail to 24 persons Mr. Wattenmaker describes as “key activists,” including Mr. Hasegawa.[3]   The evidence provided to the Election Officer demonstrates that with the exception of

Mr. Hasegawa and two other individuals, these activists received the postcards at their home address.

Lon Fields, president of Local Union 89 and a candidate on the Carey slate, received the postcards at the local union.  Mr. Fields advised the investigator that he received the postcards two days after the program had aired and therefore threw them away.  Thomas Leedham, secretary-treasurer of Local Union 206 and a candidate on the Carey slate, also received the postcards at the local union.  Mr. Leedham told the investigator that he received the postcards just before the program aired, so they were too late to be useful.  Therefore, he took them home and stored them in his garage.

After a thorough review of the new facts presented in the appeal of the instant case, the Election Officer finds that no further remedy is necessary.  While the distribution of the promotional postcards was much broader than alleged in the original protests, the evidence clearly shows that the Carey campaign reimbursed TNT for the printing of the cards.  Furthermore, there was no other violation of the Rules in the distribution of these postcards.  Other than those sent to Mr. Hasegawa at Local Union 174, almost all of the postcards were sent by the campaign to supporters of Mr. Carey at their home addresses.  As to the two other activists

James P. Hoffa

December 5, 1996

Page 1

to whom the campaign sent postcards at the local union, neither of these individuals distributed the postcards.[4]

For the foregoing reasons, the Election Officer reaffirms her decision in Hoffa, P-1108-LU174-PNW (November 8, 1996) and Halberg, P-1109-LU174-PNW (November 8, 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, 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