November 12, 1996
VIA UPS OVERNIGHT
Roy Atha
November 12, 1996
Page 1
Roy L. Atha
1220 Selma Road
Springfield, OH 45505
Ron Carey, General President
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
J.D. Jackson
Automobile Transporters Industry Division
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
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
Roy Atha
November 12, 1996
Page 1
Re: Election Office Case No. P-1168-IBT-EOH
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 Roy L. Atha, a member of Local Union 654. Mr. Atha alleges that the IBT improperly used the October 23, 1996 issue of its publication, Carhaul Bulletin, to support the candidacy of incumbent General President Ron Carey. He also alleges that a flyer and a TITAN message announcing a union-financed “Action Meeting” in Louisville, Kentucky, constituted campaigning, in violation of the Rules, and that campaigning will occur at the meeting, in violation of the Rules.
Regional Coordinator Joyce Goldstein investigated the protest.
Roy Atha
November 12, 1996
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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)).
Pursuant to her authority under Article VIII, Section 8(e) of the Rules, the Election Officer reviewed the protested issue of Carhaul Bulletin prior to its publication. The Election Officer approved the content of the issue on October 17, 1996, 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 October 23, 1996 issue of Carhaul Bulletin contains seven articles. The first article discusses strategies implemented to battle employer actions. The second article reports IBT efforts to pursue a lawsuit aimed at preventing unsafe highways. The third article reports on the success of the “Action Meetings.” This article is followed by a warning to members that Ryder intends to enact a plan to circumvent provisions of the collective bargaining agreement. The publication also includes an article about Jerry Cook’s resignation from the Central States Pension Fund board. The article quotes Mr. Carey and describes his efforts to pressure Mr. Cook to resign. The last page of the document has two short news items concerning QAT workers and a new Highway Safety bill, respectively. Mr. Carey appears in no photographs in the publication. He is mentioned by name three times, all in one article.
The issue also contains a short statement instructing members as to when International officer election ballots will be mailed and what to do if they fail to receive a ballot, and a full-page advertisement urging members to vote for U.S. congressional candidates who “will stand up for working families.”
In Hoffa, P-1053-LU952-CLA, P-1088-LU952-CLA (October 28, 1996), aff’d, 96 - Elec. App. - 264 (November 8, 1996), the Election Officer determined that coverage of a candidate’s fulfillment of his duties as a local union officer was excessive. In that case, the candidate’s name appeared 32 times in a 24-page publication, he appeared in over 10 percent of the photographs in the issue, and significant descriptions of his career and positions appeared in several places. In that case, the Election Officer determined that the coverage received by the candidate was “largely gratuitous” in that “it praised his experience and his general role in the affairs of the local union.”
No such gratuitous coverage exists in the protested publication in this case. The
October 23, 1996 issue of Carhaul Bulletin includes various reports of interest to the membership. The presence of Mr. Carey’s statements in one of these reports does not violate
Roy Atha
November 12, 1996
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the Rules if his comments are made in the furtherance of the duties of his office and are not excessive. Under the Martin standard, union communications are more stringently analyzed for campaign support and impact as the election draws near. Even under this higher standard, the protested publication does not violate the Rules. As the Election Officer has stated, “Union officers must still fulfill their duties, even in the sensitive period just prior to the election. So long as these communications do not contain a reference to the campaign or excessive reference to a candidate, the communication does not violate the Rules.” DeRossett, P-1141-IBT-EOH,
P-1145-IBT-EOH (October 31, 1996).
The protester contends that the publication covers the activity of Carey supporters, fails to cover shortcomings of negotiated contracts, and reports on events or communications that occurred well before the issue was published. A review of the content of the publication reveals that it does not constitute campaigning under the tone, content and timing test. The Election Officer, therefore, will not intrude on the journalistic discretion of the publisher.
The Election Appeals Master has stated that “[A]bsent a political endorsement or attack, as established by the communication’s tone, content, and timing, the Election Rules do not empower me to intrude upon the journalistic process of a union publication.” In Re: Lamy,
95 - Elec. App. - 53 (KC) (January 11, 1996). Moreover, the Election Officer has previously determined that “a union-financed communication does not violate the Rules because it fails to treat opposing ideas or opinions.” Volpe et al., P-828-IBT-MGN et seq. (July 11, 1996), aff’d, 96 - Elec. App. - 218 (July 23, 1996).
The protester also alleges that Mr. Carey campaigned in a mailed notice and a TITAN message advertising an “Action Meeting” for carhaul members to be held in Louisville, Kentucky. The mailed notice states:
Teamster Carhaulers Action Meeting!
What’s ahead for the carhaul industry.
How to protect and improve our contract.
New Teamster 401(k) savings plan for carhaulers.
Helping non-union carhaulers become Teamsters.
All Teamster Carhaulers are invited to attend. Buffet Lunch is provided.
The notice then lists date, location, and directions to the event.
The bottom quarter of the mailed notice contains a copy of a letter signed by Mr. Carey in which he invites carhaulers to the event and discusses what the event will accomplish. Nothing in this notice alludes, even implicitly, to the election, and the references to or by Mr. Carey are by no means excessive.
Roy Atha
November 12, 1996
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The TITAN message was sent by J.D. Jackson, acting Carhaul Division director, to 18 local unions advising them of the upcoming meeting and its agenda. Mr. Jackson offers the local unions the use of IBT Travel Services to secure transport and accommodations, but reminds them that they are responsible for all expenses. The TITAN notice contains no reference to Mr. Carey, the election, or the candidacy of any individual or slate.
Neither of these communications contain campaign language in violation of the Rules. The IBT flyer mentions Mr. Carey, but in no way references his campaign or identifies him as a candidate. The notices do not urge event attendees to vote for a particular candidate nor support the candidacy of any individual or slate. In a protest of a flyer advertising a voter registration rally, the Election Officer stated, “None of the activities listed on the protested flyer constitute ‘advocacy for or against a candidate’ in the International officer election. The advertised event is a voter registration picnic related to the U.S. presidential election, which does not inherently violate the Rules.” Hoffa, P-996-LU436-CLE (September 23, 1996), citing Hoffa, P-925-
IBT-MGN (September 20, 1996). In the present case, the advertised event is a carhaul meeting. None of the goals of the event listed in either communication reference the election or mention a candidate excessively. The communications are advertisements for a non-campaign-related event. Neither communication, therefore, violates the Rules.
Finally, the protester alleges that the meeting advertised in these communications will be used for campaigning, in violation of the Rules. The Election Officer has previously determined, however, that allegations of violations that a union-financed meeting will be used for campaign purposes made prior to the meeting are not timely. In Hoffa, supra, the Election Officer stated:
If the protester or any other member believes that improper campaigning does happen at the picnic when the event actually takes place, the matter may then be raised and tested by a timely protest. See Pacheco, P-578-LU222-RMT (March 18, 1996) (risk of future improper use of membership information by local union officers does not violate rules; specific actions may be raised
and tested by protest when they occur); Hill, P-409-LU89-SCE (March 13, 1996) (potential for future campaigning at union meetings does not state violation; protest may be filed if improper campaigning occurs).
Like the protester in that case, Mr. Atha filed his protest concerning the “Action Meeting” prior to the meeting. Such an allegation will not be considered by the Election Officer.
For the foregoing reasons, 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:
Roy Atha
November 12, 1996
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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
Joyce Goldstein, Regional Coordinator