Protest Decisions

              November 13, 1996

VIA FACSIMILE & UPS OVERNIGHT

Mark Clark

November 13, 1996

Page 1

Mark G. Clark

8004 Cureton Circle

Las Vegas, NV  89128

Ron Carey Campaign

c/o Nathaniel K. Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY  10036

Fax (212) 695-5436

Gary Mauger, Secretary-Treasurer

Teamsters Local Union 14

305 Wall Street

Las Vegas, NV  89102

Fax (702) 386-4848

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

Fax (810) 855-6501

Mark Clark

November 13, 1996

Page 1

Re:  Election Office Case No. P-1132-LU14-CLA

Gentlemen:

Mark G. Clark, a member of Local Union 14, filed a pre-election protest pursuant

to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Local Union 14 and its secretary-treasurer, Gary D. Mauger.  Mr. Clark alleges that Mr. Mauger and Local Union 14 have created the impression that Local Union 14 endorses James P. Hoffa for general president by permitting the name of Local Union 14 to be used in connection with a publication containing material supporting Mr. Hoffa.  Mr. Mauger takes the position that the Rules are not violated because no union funds were paid in connection with the production or dissemination of the publication.

The protest was investigated by Regional Coordinator Dolly M. Gee.

Mark Clark

November 13, 1996

Page 1

The investigation discloses that on October 22, 1996, the protester was provided with a copy of a publication formatted as a tabloid newspaper.  The only indication as to the name of the publication is located on the front page.  The name of Local Union 14 is displayed on this page in three separate locations, including the center, which displays the Local Union 14 IBT logo.  The publication contains no identification or title apart from “Local Union 14” and there is no masthead identifying the name of the newspaper or the publisher.  The words “Teamsters Local #14” and its address appear at the top and bottom of the front page.  The footer on the second page of the newspaper shows the name of “Teamsters Local #14” on the left side of the page and “Vol. 1 No. 1” on the right.  The footers on each of the publication’s 23 remaining pages exhibit the words “September 1996” and “Teamsters Local #14.”

The majority of the publication contains advertisements from vendors of goods and services in the Las Vegas area.  However, 11 articles also appear.  The first is headlined “Brothers and Sisters” and is signed by Mr. Mauger in his capacity as secretary-treasurer of Local Union 14.  The article contains a report by Mr. Mauger on last summer’s IBT Convention, as well as information on other subjects.  It generally criticizes the performance of the IBT’s current general president, Ron Carey, in his capacity as presiding officer of the Convention and contains a preview of the newspaper’s contents.  Mr. Mauger’s report also states, in pertinent part, as follows:

The playing field is not level.  Mr. Carey has the TEAMSTERS magazine and TEAMSTER leadership letter, to promote his propaganda, the opposition does not.  Included in this issue are letters and statements from the opposing side, to help you have a better prospective [sic] on the issues.

With three exceptions, the subjects of the publication’s remaining articles concern various aspects of the Convention which are consistently critical of Mr. Carey’s actions as presiding officer.  With one exception, the other articles either attack Mr. Carey personally or criticize him in his capacity as general president.  The contents of these articles are summarized below:

(1) A letter, dated August 28, 1996, inviting candidates Carey, Keegel, Hoffa, Ellis, Hogan and others to a political picnic;

(2) A press release of the Hoffa ‘96 campaign, dated July 17, 1996, concerning Convention issues and headlined, “Hoffa Delegates Fight Minority Rule” and “Carey Adopts Strategy of Small Tactics to Block Adoption of Hoffa Platform;”

(3) An article entitled, “Statement of James P. Hoffa Regarding the Local 714 Trusteeship,” dated August 13, 1996.  The article accuses Mr. Carey of testifying against his former running mate and of being a thief and a forger, among other accusations;

(4) An undated press release of the Hoffa ‘96 campaign, headlined “Remember in November,” which trumpets, in

Mark Clark

November 13, 1996

Page 1

some considerable detail, Mr. Hoffa’s “decisive victory” over

Mr. Carey at the Convention and criticizes Mr. Carey’s performance as presiding officer;

(5) Excerpts of certain “constitutional amendments,” purportedly proposed by IBT Convention delegates “pledged to the candidacy of James P. Hoffa;”

(6) An undated “update” from the Hoffa ‘96 campaign carrying the headlines “Hoffa Delegates Demand Evening Sessions” and “Carey Dictatorship Collapses,” which accuses Mr. Carey of utilizing “stall tactics” and criticizes his “strong arm” tactics at the Convention;

(7) Three “Hoffagram” press releases from the Hoffa ‘96 campaign, dated July 6, 1996, June 30, 1996 and August 6, 1996, criticizing Mr. Carey on the issues of strike benefits, the appointment of non-elected IBT Convention delegates and the claimed success of the Hoffa campaign after the Convention; and

(8) An article reprinted from Volume 3, Number 63 of the Labor Beacon, which contains a statement referring to Mr. Carey as “a detriment to the future of the Teamsters” and criticizing him for his alleged “snitching, opulent spending, phony reform and fiscal irresponsibility.”

This untitled publication was printed and distributed pursuant to a written agreement.  A copy of the written agreement was provided to the Regional Coordinator.  The agreement was executed by Mr. Mauger on June 27, 1996, in his capacity as the principal officer of Local Union 14.  The contractor and the apparent publisher of the newspaper is an entity which the contract refers to as the “Labor Advocate.”  The contract provides that Local

Union 14 “will be referred to and known as the sponsor of this program” and specifically obligates Local Union 14 to “let Labor Advocate sales people use their name in selling of advertising.”  Under the contract, Labor Advocate agrees to pay Local Union 14 $800 per year, or $200 for each of four publications.  Labor Advocate further agrees to print and “make available” 1,750 copies of the “quarterly newspaper for members and to all advertisers.”  The contract contains provisions obligating Labor Advocate to pay for all costs associated with mailing the newspaper to the membership.  The contract also contains the following provisions:

              Term V.

Teamsters # 14 [a]grees to furnish Labor Advocate with information and/or articles to be printed in the publication at least three (3) weeks prior to printing.  If not, Labor Advocate reserves the right to print their own Labor articles.

Mark Clark

November 13, 1996

Page 1

              Term VII.

All checks given to Labor Advocate as payment for said advertising will be drawn payable to Labor Advocate.  Labor Advocate will be authorized to cash, endorse or deposit in the bank of their choice all checks given as payment for said advertising regardless of how these checks are drawn payable.

Mr. Mauger maintains that the newspaper does not violate the Rules at Article VIII, Section 8(a) because the newspaper is not paid for directly by union funds.

This contention is rejected by the Election Officer.  Article VIII, Section 8(a)

of the Rules not only prohibits the support or attack of a candidate by publications or communications which are financed directly by union funds, but also expressly extends to indirect union financing.

In addition, Article VIII, Section 11(b) of the Rules makes clear that while union members, including officers, are free to endorse candidates, this can only be done in the member’s “individual capacity.”  The provision also states, however, that “[T]he Union or a Local Union as such . . . may not endorse or otherwise advance a candidacy, even if all members agree on the endorsement or candidacy.”[1]  The Election Officer has consistently prohibited a local union, or the executive board of a local union, from endorsing a candidate or slate of candidates.  See Gebow, P-963-LU677-ENG (October 14, 1991), aff’d as modified, 91 - Elec. App. - 212 (SA) (October 28, 1991);[2] Custer, P-1098-LU673-CHI (November 18, 1991)[3].

Mark Clark

November 13, 1996

Page 1

For the sum of $200 per issue, Local Union 14 has agreed to “sponsor” the “program” and permit Labor Advocate to sell advertising in its name.  Local Union 14 has further agreed to supply specific information and articles for publication.  Under the contract, Labor Advocate has the right to negotiate all checks issued in payment for advertising, even if such checks name Local Union 14 as the payee.  The newspaper, intended for distribution to “the membership,” has no title or name, other than “Teamsters Local #14.”

On the basis of these facts, the Election Officer concludes that the contractual arrangements entered into by Local Union 14 with Labor Advocate constitute direct, as well as indirect, union financing of a publication, within the meaning of the Rules at Article VIII, Section 8(a).

Article VIII, Section 8(a) of the Rules further provides 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.  Chalfant, P-882-JC28-PNW et seq. (September 6, 1996); Rodriguez, P-888-LU630-CLA (September 6, 1996).

Of the 11 “news” articles in the newspaper, eight relate to the Convention and are critical of Mr. Carey’s performance as presiding officer.  Of these eight articles, six are direct reprints of campaign press releases produced and distributed by Mr. Hoffa’s campaign.  The sole purpose of Mr. Hoffa’s statement relating to the trusteeship of Local Union 714 is to advance his candidacy.  As printed, the article is preceded by a display of the Hoffa ‘96 logo. The bylined feature, reprinted from the Labor Beacon, refers to Mr. Carey as a “detriment to the future of the Teamsters,” thereby connecting its critical tone and content directly to the International election. 

In Martin, the Election Officer recognized that the IBT may use its official publications to report on the legitimate business of the union and on the views and actions of union officers and officials with respect to that business.

Elected union officials are entitled to use union publications to express their views and to have their union activities reported in [union] publications.  They are not ordinarily required to give space therein to the expression of contrary views . . . So long as such coverage is addressed to the regular functions, policies and activities of such incumbents as officers involved in matters of interest to the membership and not as candidates for reelection, there is not a violation . . .

(quoting Camarata v. International Bhd. of Teamsters, 478 F. Supp. 321, 330 (D.D.C. 1979) (construing Section 401(c) of the Labor-Management Reporting and Disclosure Act), aff’d, 108 L.R.R.M. (BNA) 2924 (D.C. Cir. 1981)).

Mark Clark

November 13, 1996

Page 1

Distinguishing between coverage addressed to the regular functions, policies and activities of incumbents as officers, as opposed to their activities as candidates, is naturally complicated by the fact that “policy issues within the union are frequently adopted as campaign issues in the campaigns of the International officers.”  Szymanski, CONV-9-IBT et seq. (July 16, 1996); Hoffa, P-812-IBT-NYC (August 16, 1996).  See Martin, P-010-IBT-PNJ (decision on remand) (August 17, 1995) (recognizing parallel debates within union on “how the IBT should prepare for the future in light of the institutional changes wrought by the Consent Decree and the changes in the national economy” and on “what individuals and groups within the union will hold power over the next four years”).  Thus, in applying the tone, content and timing test to union-financed publications, the Election Officer endeavors to distinguish between the legitimate pursuit of institutional roles on the one hand and supporting or opposing a candidate on the other, recognizing that “a publication or communication may convey support or opposition to a candidate even if overt campaign material is not present.”  Rodriguez.  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.

The articles contained in the newsletter produced in connection with Local Union 14  cross the line drawn between opinions which constitute the “legitimate pursuit of institutional roles,” and comments which advance a candidate.  The Rules do not permit a union-financed publication to engage in overt campaigning.  The protections extended to bona fide reports of Convention proceedings by delegates or the views of elected union officials in Martin and Chalfant are not applicable to items directly produced by the campaign organizations of candidates, even when such writings touch on issues which are legitimate subjects of union debate. 

Mr. Mauger does not dispute that this first issue of the protested newspaper contains anything but campaign material.  The tone, content and timing of the union-financed articles establish a violation of Article VIII, Section 8(a) of the Rules.  Further, the repeated references to Local Union 14 in the newspaper constitute an improper union endorsement of a candidate, in violation of Article VIII, Section 11(b).

Accordingly the protest is 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.

The Election Officer has determined that resources of Local Union 14 were used to promote the candidacy of Mr. Hoffa.  A similar benefit will be provided to the candidacy of Mr. Carey by permitting him to present his views to the membership of Local Union 14.  Accordingly, the Election Officer orders the following:

Mark Clark

November 13, 1996

Page 1

1.  By Monday, November 18, 1996, Mr. Carey may submit to Mr. Mauger 10 pages of campaign literature.  This literature shall be on 8½11-inch paper and blank on one side.

2.  Within two (2) working days of receipt of the literature, Mr. Mauger, at local union expense, will copy this material and mail one copy of the 10 pages of campaign literature to every member of Local Union 14.

3.  Within one (1) day of the mailing of this material, Mr. Mauger 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