November 20, 1996
VIA UPS OVERNIGHT
Gerald Moerler
November 20, 1996
Page 1
Gerald Moerler
21131 E. Calora Avenue
Covina, CA 91724
Ron Carey, General President
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
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
John Sullivan, Associate General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
Gerald Moerler
November 20, 1996
Page 1
Re: Election Office Case No. P-1152-IBT-CLA
Gentlemen:
A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for
the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by
Gerald Moerler, a member of Local Union 63. Mr. Moerler alleges that the IBT has sent a number of pieces of literature and scheduled a number of union-financed events in Southern California recently in order to support the campaign of Ron Carey, the incumbent general president and a candidate for reelection, in violation of the Rules.
Gerald Moerler
November 20, 1996
Page 1
In support of his protest, Mr. Moerler points to the October 1996 issue of Warehouse News and a DRIVE flyer inviting members to a voter education picnic in October.[1] Mr. Moerler states that the near contemporaneous distribution of these documents and the scheduling of the advertised event, coupled with the fact that he had never received a copy of Warehouse News, indicate that these union publications and function are being used to highlight Mr. Carey in order to benefit his campaign.
The IBT denies any effort to broadcast Mr. Carey’s name to the membership in order to influence the election. According to the IBT, the communications were issued for valid reasons unrelated to the campaign. The IBT responds that three prior editions of Warehouse News have been published. According to the IBT, the earlier editions were distributed to stewards for wider distribution but this method proved ineffective. As a result, the IBT states, the protested issue was mailed directly to members. Both pieces of literature protested here, and the DRIVE event, were scheduled to occur prior to the U.S. presidential and congressional elections in order to enhance the ability of DRIVE to influence the national election. The IBT states that the October issue of Warehouse News, like the DRIVE flyer and event, contained a strong DRIVE message.
Adjunct Regional Coordinator Michael D. Four investigated the protest.
Mr. Moerler does not allege that the publication, the flyer, or the picnic, individually, constitute a violations of the Rules. Rather, he argues that the proliferation of IBT-financed communications and activities is an “obvious” attempt by Mr. Carey and the IBT “to put
[Mr. Carey’s] name in front of the members and make appearances or send representatives out just to open campaign opportunities.”
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:
. . . 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.
Gerald Moerler
November 20, 1996
Page 1
The October 1996 issue of Warehouse News is four pages long. Mr. Carey’s name appears in the masthead and in a DRIVE message urging members to vote on November 5. Neither his name nor his photograph appears elsewhere in the publication.
Pursuant to her authority under Article VIII, Section 8(e) of the Rules, the Election Officer reviewed the protested issue of Warehouse News prior to its publication. The Election Officer approved the content of the issue, finding that publication of the material would not constitute a violation of Article VIII, Sections 8(a) and 11(b)-(c) and Article XII,
Sections 1(b)(1) and (3) of the Rules.
The protested flyer urges members to attend a DRIVE picnic in Southern California. Many such events have been scheduled around the nation as part of the DRIVE voter registration and education efforts.
The IBT states that the proximity of the congressional and presidential elections was a major motivating factor in the decision to issue the protested industry bulletin. According to the IBT, research indicates that members are more likely to read publications tailored to the interests of members who work in the same industry they do. Hence, the IBT states that it believed that the DRIVE advertisements in the industry bulletin would be more effective than a similar message published in the International publication.
The Election Officer has previously examined DRIVE efforts in the context of other protests. See Hoffa, P-925-IBT-MGN (September 20, 1996), aff’d, 96 - Elec. App. - 244 (KC) (October 3, 1996) (IBT voter registration picnic not a campaign event). The Election Officer notes that the IBT, as well as other labor organizations, took on a more activist role in the recent presidential and congressional elections than in years past. Expressions of support for congressional and presidential candidates friendly to labor is a traditional function of labor organizations. The work of DRIVE is a legitimate expression of this function. The union and its president need not forego an active role in the national election process because of its proximity to the union’s own election. The references to Mr. Carey in these DRIVE efforts were all in the context of voting in the national elections. Under these circumstances, the Election Officer finds such references to be part of the legitimate role of the IBT’s general president. See Hoffa,
P-1181-IBT-EOH (November 18, 1996).
The references to Mr. Carey in the protested publications and his participation at the DRIVE event do not, therefore, violate the Rules because the references are not excessive and are reasonably related to the legitimate functions of the IBT and the general president.
Accordingly, the protest is DENIED.
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:
Gerald Moerler
November 20, 1996
Page 1
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
Michael D. Four, Adjunct Regional Coordinator
[1]DRIVE stands for Democrat Republican Voter Education and is the political action committee of the IBT.