Protest Decisions

              November 18, 1996

VIA UPS OVERNIGHT

James P. Hoffa

November 18, 1996

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

John Sullivan, Associate General Counsel

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, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

James P. Hoffa

November 18, 1996

Page 1

Re:  Election Office Case No. P-1181-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

James P. Hoffa, a member of Local Union 614 and a candidate for general president.  Mr. Hoffa alleges that the IBT has used “massive amounts of members’ dues money” to promote the candidacy of Ron Carey, incumbent general president and a candidate for reelection, in violation of the Rules.  Mr. Hoffa contends that the IBT has financed an unusually high number of communications to members that “provide excessive and disparate coverage to Mr. Carey.” 

Mr. Hoffa also asserts that the IBT failed to submit these communications to the Election Officer for pre-publication review, as required by the Rules.

James P. Hoffa

November 18, 1996

Page 1

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 also states that many of the protested communications were submitted to and approved by the Election Officer, pursuant to the pre-publication review requirement of the Rules.

Regional Coordinator Judith E. Kuhn investigated the protest.

Mr. Hoffa does not contend that any single communication constitutes campaigning for Mr. Carey, as defined by the Rules.  Rather, he asserts that “the unprecedented array of IBT publications, all of which mention or contain photos of Mr. Carey, have been skillfully and deliberately used to provide extensive publicity for Mr. Carey--all at members expense . . .” in order to influence the election.  Thus, Mr. Hoffa contends that such coverage, taken as a whole, is an impermissible use of union resources to support Mr. Carey’s candidacy by getting his name and picture out to the membership at unprecedented levels.

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.

James P. Hoffa

November 18, 1996

Page 1

Mr. Hoffa alleges that the protested IBT communications violate the Rules by deluging members with a barrage of references to Mr. Carey.  In support of his protest, Mr. Hoffa points to Teamster DRIVE[1] mailings and voting guides mailed in mid-October, the October 21, 1996 issue of UPS Update, a bargaining survey for UPS-employed members issued on October 30, 1996, a leaflet advertising an “Action Meeting” scheduled for November 10, 1996 for members employed in the carhaul industry, the October 22, 1996 issue of Carhaul Bulletin, a solicitation for applications for a “Union MasterCard” credit card, the Fall 1996 issue of Food Processing News, the November 1996 issue of Community Services Bulletin, the October 1996 issue of Brewery and Soft Drink Bulletin, the October 21, 1996 issue of Freight Bulletin, the October 1996 issue of Warehouse News, the Autumn 1996 issue of La Voz de los Teamsters, and the IBT-funded phone banking, all done to influence the November 5, 1996 presidential and congressional elections.

The IBT does not deny that it financed each of these communications with the exception of the credit card solicitation.  Mr. Hoffa contends that each of these communications made at least one, and in some instances several, references to Mr. Carey.  Mr. Hoffa argues that, taken together, these communications are excessive when compared to past practice and in light of the upcoming election.

The IBT’s response has three basic components.  First, the IBT asserts that the large number of communications cited by the protester is misleading because transmission of such communications to members was targeted so that some members would receive some of the  publications or be contacted through the phone bank, but that no member would receive all, or even a large proportion, of these communications.  Second, the IBT contends that its DRIVE efforts produced an increase in communications because of the scheduling of the national elections.  Third, the IBT states that recent events in the carhaul industry and the upcoming start of negotiations on a new UPS contract made communications to members employed in those industries necessary.  The IBT states that frequent communications with members in certain industries are consistent with past practice.

1.              Communications Protested

Prior to the national election, DRIVE sent flyers to targeted members to urge them to vote.  The flyer provided by Mr. Hoffa to support his allegation contains a small picture of

Mr. Carey and a quote by him on the importance of voting for pro-labor candidates.  DRIVE also provided voting guides through the mail and at some work sites.  These guides contain a half-page message from Mr. Carey and a photograph of him.

The UPS bargaining survey, issued October 30, 1996, polls members employed by UPS to gather data for the upcoming negotiations.  The survey opens with a letter signed by Mr. Carey and Ken Hall, director of the IBT’s Parcel and Small Package Trade Division, in which members are urged to complete and return the survey.  Under his signature, Mr. Carey is identified as “Chair, Teamsters UPS National Negotiating Committee.”  Mr. Carey’s name does not appear elsewhere in the survey.

The IBT advertised its “Action Meetings” for members employed in the carhaul industry by mailing flyers to carhaul members in the area of the respective meeting.  The bottom third of these flyers contains a letter from Mr. Carey inviting members to the meeting and describing the goals of the function.

James P. Hoffa

November 18, 1996

Page 1

The protested credit card solicitation, which includes a cover letter, a brochure and a reply envelope, contains no reference whatsoever to Mr. Carey.  It was mailed by a financial institution and was not produced with IBT funds or resources.

Community Services Bulletin is not mailed to members.  Copies of it are sent to local unions to be placed inside local union facilities for distribution.  The IBT’s Community Services Department periodically produces the publication.  The publication contains no reference to, quote by or photograph of Mr. Carey.  His name appears painted on an IBT-owned truck in a photograph of hay being delivered to drought-stricken farmers in Texas.

The following industry bulletins, aimed at members who work in specific industries, were mailed directly to members employed in the specific industry targeted by the publication.  All

of these publications were approved by the Election Officer prior to publication, pursuant to Article VIII, Section 8(e) of the Rules.

The October 21, 1996 issue of UPS Update, which was mailed to members employed by UPS, was five pages long.  Mr. Carey is referred to in an article entitled, “Jerry Cook Resigns as Central States Trustee,” in reference to calling for Mr. Cook’s resignation in June and on September 19.  There are no other references to Mr. Carey and his photograph does not appear in the publication.  The publication includes a DRIVE message urging members to vote on November 5.

The October 22, 1996 issue of Carhaul Bulletin, like the UPS bulletin, is five pages long and contains a one-page article about Mr. Cook’s resignation as trustee.  Mr. Carey is mentioned in this article.  His name appears nowhere else in the publication.  There is no photograph of

Mr. Carey in the publication.  The publication includes a DRIVE message urging members to vote on November 5.

The Fall 1996 issue of Food Processing News is four pages long.  Mr. Carey’s name appears in the masthead and once elsewhere in the publication.  His photograph does not appear in the publication.

The October 1996 issue of Brewery and Soft Drink Bulletin is five pages long. 

Mr. Carey’s name appears once, in a DRIVE message urging members to vote on November 5.

The October 21, 1996 issue of Freight Bulletin is six pages long.  The second page is dominated by an article about Mr. Cook’s resignation.  It refers to the fact that Mr. Carey called for Mr. Cook’s resignation in June and on September 19.  The article is substantially identical to the articles about Mr. Cook’s resignation in other bulletins and refers to Mr. Carey’s requests for Mr. Cook’s resignation.  Mr. Carey is quoted later in a short article about the freight dock health and safety checklist.  The publication includes a DRIVE message urging members to vote on November 5.

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.

James P. Hoffa

November 18, 1996

Page 1

The Autumn 1996 issue of La Voz de los Teamsters is four pages long.  The publication is a digest of articles appearing in other union publications translated into Spanish.  The publication is distributed by mail to members believed to be primarily Spanish speakers.  It is also distributed at work sites where Spanish-speaking members are known to work.  Mr. Carey’s name appears in the masthead and twice in the issue.

2.              Distribution of the Industry Bulletins

The investigation revealed that the bulletins relevant to members in specific industries are targeted to those members or local unions that represent them, as the IBT claims.  Thus, a brewery worker would receive a copy of the Brewery and Soft Drink Bulletin, but would not normally be sent copies of the other five industry bulletins referred to by the protester.  Similarly, only members employed by UPS would receive a copy of the UPS bargaining survey.  In addition, La Voz de los Teamsters was sent only to members known to be primarily Spanish speakers and was distributed by hand at work sites where such members were known to be employed.

3.              Presidential and Congressional Election-Related Communications

DRIVE leaflets and the phone banking effort were targeted to registered voters who were members in specific congressional districts considered important to DRIVE organizers.  In the phone bank, which called over 200,000 members, callers identified themselves as calling “on behalf of Ron Carey, General President of the Teamsters Union, to encourage you to vote on Tuesday [November 5, 1996].”  According to a phone bank script, the caller then criticized the Republican-dominated Congress and urged recipients to vote for candidates that “will stand up for working families” and for a president “who will protect our rights.”  The script ended with the statement, “Please be sure to vote on November 5, 1996.  Thanks.  Have a good evening.”  The IBT states that Mr. Carey’s name was mentioned during the phone bank calls in order to personalize the message to make it more effective.

The IBT also states that the proximity of the congressional and presidential elections was a major motivating factor in the decision to issue the protested industry bulletins.  Each bulletin contained a DRIVE advertisement urging members to vote for candidates who support the rights of working families.  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 bulletins would be more effective than a similar message published in the International publication.

The IBT acknowledges that DRIVE has been more active in the recent national elections and that this has resulted in more communications with members.  The IBT states that its research indicated that direct, issue-oriented communications were more effective than their past election-related strategy which involved simple grants of money to campaigns or political committees.

James P. Hoffa

November 18, 1996

Page 1

              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.[2]  

4.              Developments in Carhaul and UPS

The IBT states that communications to members employed in the carhaul industry and by UPS became necessary because of developments that affected those members.  Specifically, the IBT states that the UPS bargaining survey was mailed to members because negotiations for a new contract begin in February, so members’ responses must be compiled as soon as possible.  In the UPS Update, members employed by UPS are notified of the survey and asked to return it by November 10, 1996.  The lead article of the survey is entitled, “What are Your Priorities for the Next National Contract?”  The article highlights key issues that the IBT expects the upcoming negotiations to include.

Similarly, the IBT states that the carhaul “Action Meeting” notices to members are part of a customary effort to educate members about International action to organize carhaul employees and to respond to recent problems with employers, especially Honda, Toyota and Volkswagen.  According to the IBT, the three employers have increasingly relied on non-union carhaulers.  The Action Meetings focused on what the IBT was doing in response and what members could do to help, including participation in the organizing drives.  The meetings were also used to educate members about a 401(k) savings plan created under the new master contract negotiated last spring and now being implemented by large carhaul employers.

The increasing trouble with the three employers was reported on in the most recent edition of the carhaul division publication.  The IBT has a duty to act when union jobs are threatened, and to involve the rank and file in grassroots efforts to fight employer pressure. 

The IBT and Mr. Carey need not limit such activity because of the proximity of the election.

James P. Hoffa

November 18, 1996

Page 1

5.              Analysis

The Rules prohibit excessive coverage of a candidate even if such coverage makes no reference to the campaign.  In analyzing whether the IBT provided Mr. Carey with such excessive coverage, the Election Officer must determine the reasonableness of any references to Mr. Carey in light of the proximity of the election.

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.”

Mr. Carey receives no such gratuitous or laudatory coverage in the protested communications.  In addition, the IBT has provided credible explanations for the timing of the communications it issued.  The bulk of the communications protested were issued in order to help influence the national election.   The national campaign efforts of DRIVE are a crucial function of the IBT, and an intensive voter education effort furthers the mission of the IBT.   The Election Officer has previously recognized the legitimacy of such functions.   Hoffa, P-925-

IBT-MGN (September 20, 1996), aff’d, 96 - Elec. App. - 244 (KC) (October 3, 1996); Hoffa,

P-996-LU436-CLE (September 23, 1996), aff’d, 96 - Elec. App. - 245 (KC) (October 3, 1996).  The use of the name of the IBT’s general president in such an effort was not excessive.

The presence of Mr. Carey’s statements in these communications does not violate

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 publications, taken together, do 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).

Similarly, members must be kept informed of developments within the industry in which they work.  Messages from Mr. Carey to these members in order to educate them about their rights and obligations were not excessive.

James P. Hoffa

November 18, 1996

Page 1

James P. Hoffa

November 18, 1996

Page 1

Finally, the Election Officer finds it significant that the bulk of these communications are industry-targeted or targeted to specific congressional districts such that individual members were not deluged with all of the protested material.  The protester acknowledges that the communications, when examined separately, do not violate the Rules.  As the investigation demonstrated, industry bulletins, the negotiation survey, and the “Action Meeting” notice were only distributed to members employed in relevant industries.  The Spanish publication was targeted only to Spanish-speaking members.  The DRIVE flyers and phone banking were conducted in specific regions, and the Community Services Bulletin was not sent directly to members.  Given the diffusion of the distribution of the protested materials, the protester’s contention that the average member has been exposed to an excessive level of coverage of

Mr. Carey is without merit. 

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:

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

Judith E. Kuhn, Regional Coordinator