Protest Decisions

              November 19, 1996

VIA UPS OVERNIGHT

James P. Hoffa & Roy Atha

November 19, 1996

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

Roy L. Atha

1220 Selma Road

Springfield, OH  45505

Jennifer Falk-Weiss, Attorney

Legal Department

Cable News Network

1 CNN Center, Box 105366

Atlanta, GA  30348

Ken Paff

Teamsters for a Democratic Union

7437 Michigan Avenue

Detroit, MI  48210

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

William Webster

Independent Review Board

444 N. Capitol Street, N.W., Suite 528

Washington, DC  20001

Paul Alan Levy

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC  20009

John Sullivan, Associate General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Karen Konigsberg, Asst. U.S. Attorney

United States Department of Justice

100 Church Street, Room 1911

New York, NY  10007

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

James F. Wallington

Baptiste & Wilder, P.C.

1150 Connecticut Avenue, N.W., Suite 500

Washington, DC  20036

James P. Hoffa & Roy Atha

November 19, 1996

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Re:  Election Office Case Nos.              P-1216-JHC-EOH

P-1234-LU654-EOH

P-1235-LU654-EOH

Gentlepersons:

Related pre‑election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).  On November 11, 1996, James P. Hoffa, a member of Local Union 614 and a candidate for general president, filed a protest (P-1216) against the U.S. Department of Justice (“Justice Department”).  He claims that the Justice Department engaged in an improper employer contribution to the reelection campaign of incumbent General President Ron Carey, based on comments made during a program on the Cable News Network (“CNN”) about the 1996 International officer election.  According to the protest, CNN aired a program citing “sources” in the Justice Department “who supposedly had claimed that a victory by [Hoffa] in the present election would be a ‘setback’ to the ‘fight against corruption’ within the IBT.”  The protest claims that the interjection by unnamed Justice Department sources of their opinions concerning the campaign amounts to an improper employer contribution.

On November 12, 1996, Roy L. Atha, secretary-treasurer of Local Union 654, filed a protest (P-1234) against William H. Webster, a member of the Independent Review Board (“IRB”), Mr. Carey and the Carey slate, in connection with the same CNN broadcast.  In essence, the protest claims that Judge Webster made a campaign contribution to the Carey campaign by appearing on the program to support Mr. Carey and oppose Mr. Hoffa.  The protest asserts that Judge Webster’s statements “had the foreseeable effect of negatively linking past union violence with the current Teamster members who are supporting Jim

Hoffa . . .”  In addition, Judge Webster’s statements regarding a 1994 IRB report concerning

Mr. Carey “had the foreseeable effect of promoting the candidacy of Ron Carey and his

slate . . .”  He claims that Judge Webster should not have appeared on the program “because it was intentionally timed to influence the outcome of the International officers’ election.”

As a remedy, Mr. Atha requests that the Carey campaign, the IRB and/or Judge Webster be required to purchase time on CNN or a comparable broadcast outlet to correct this false impression, and that they finance a mailing by the Hoffa campaign to the IBT membership.  Finally, he requests that all members be notified and allowed to request a new ballot to change their vote if they so desire.

On November 12, Mr. Atha filed a second protest concerning the CNN report (P-1235) against Mr. Carey, the Carey campaign, CNN, Ken Paff and Teamsters for a Democratic Union (“TDU”).  The protest accuses the respondents of improper campaigning and improper employer contributions, in violation of the Rules, in connection with the program.

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November 19, 1996

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By letter dated November 15, 1996 and faxed to the Election Officer, Mr. Atha’s attorney stated that he had learned that the CNN program was set to air again during the weekend of November 16-17 and requested that Judge Webster be informed of this fact and that he “take whatever acts he deems prudent to avoid his appearance on any rebroadcast of this program.”

All respondents deny any violation of the Rules, as described more completely below.

These protests have been consolidated for decision because they involve similar allegations.  They were investigated by Theodore M. Lieverman, counsel for the Election Officer.

1.              Statement of Facts

A.              Description of the Program

On Sunday, November 10, 1996, at 9:00 p.m. Eastern Time, CNN aired a one-hour program entitled, “CNN Presents.”  Approximately the first 40 minutes of the program were devoted to a report entitled, “Divided Unions,” in which CNN correspondent Mark Feldstein reported on certain aspects of the 1996 IBT International election.  The show is divided into three segments, each introduced by CNN anchor Bernard Shaw.  The first segment gives some background into evidence and allegations of past and present corruption within the union.  In his introduction, Mr. Shaw states, “As labor unions across the country try to make a comeback, there is an internal war over control of the Teamsters Union.  This as the Union mails out ballots for its presidential election.”  Mr. Shaw then identifies Mark Feldstein as the reporter for the story.

Over various clips of campaign demonstrations and speeches featuring Mr. Hoffa and Mr. Carey, Mr. Feldstein refers to the Teamsters as a union “notorious for corruption” and “notorious for links to the mafia.”  After some discussion of historical mob links to the IBT, the story shows Judge Webster on camera, identified on the overlay as “Former FBI Director.”[1]  The interview shows Judge Webster stating, “There’s a good deal of violence and fear of violence that has always been present where mob people are associated.”  The story then discusses in more detail corruption within the IBT, the disappearance of James R. Hoffa, former president of the IBT, in 1975, and the background to the racketeering case brought by the government in 1988.  According to Mr. Feldstein, shown on camera, “The government lawsuit brought life to the Union’s reform movement, which had been struggling against the leadership’s deeply entrenched corruption.”

In a voice-over of a picture showing Mr. Carey at a rally, Feldstein relates that

Mr. Carey was elected on a reform platform in the first totally democratic election in the Teamsters’ history.  A few seconds later, Mr. Feldstein states, “In the past five years, Carey has worked hand-in-hand with the federal oversight panel.”  The program asserts that

Mr. Carey has expelled over 300 Teamsters for corruption and trusteed 65 local unions.

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November 19, 1996

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The story then shows some details of alleged corruption from six local unions:

·              A Chicago local union formerly headed by William Hogan, Jr., Mr. Hoffa’s initial running mate, accused of conflicts of interest, nepotism and other misdeeds.  Although the narration does not refer to the local union number, signs in the video portion show that it is Local Union 714. 

·              An unnamed local union in Brooklyn, New York, where the federal oversight board found that local union officials had abused union funds.

·              An unnamed local union in Houston, where the leadership allegedly stored their “loot” in a warehouse.  The video shows liquor, trailers, jewelry, rifles, ammunition and other valuables allegedly paid for with local union monies.  The narrator recounts that the former president of the local was indicted on 13 counts. 

·              A local union in Philadelphia, Pennsylvania, where its president, Tom Ryan, was found by the federal oversight panel to have misused union monies and associated with organized crime members.

·              An unnamed local in Dallas, Texas, headed by T.C. Stone, where the narrator states, “The federal oversight panel found Stone gave himself illegal loans and spent nearly $200,000 a year on Lincoln Town cars.” 

·              An unnamed local in Detroit, Michigan, where an employee did not get disability benefits because the union benefit fund had been misused.  Mr. Feldstein states, “According to the U.S. Labor Department, Teamster officials misspent more than $700,000.”  The video then cuts to a go-go bar, while the narrator describes how the bar was one of several luxuries upon which the money was spent.  Mr. Feldstein relates that the Labor Department sued the Teamsters, forcing them to return the money.  The video then cuts to an on-air interview with Mr. Hoffa, in which he denies having anything to do with the fund, stating it was all handled by his law partner.

In each of the sections described above, the show reports that the officials involved had denied the charges against them.  The segment closed with Mr. Shaw stating, “Jimmy Hoffa’s son is now running for president of the Teamsters Union.  When we return, a look at allegations that he has a questionable past.”

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November 19, 1996

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The second segment of the show focuses on allegations concerning Mr. Hoffa’s alleged ties to corruption and/or organized crime.  Mr. Shaw introduces the segment by stating:

With the help of the federal government, labor reformers are battling an old guard they say looted the Union treasury for decades, robbing hard working rank and file members in the process.  It’s all part of a renewed effort by labor unions across the country to recapture their strength for themselves and their workers.  But law enforcement sources say these gains may be jeopardized in the upcoming Teamsters election.

The report then cuts to various video clips of Mr. Hoffa campaigning.  Mr. Feldstein gives some background on Mr. Hoffa’s father, James R. Hoffa.  The show then provides some biographical information on the son, James P. Hoffa.  This portion is interspersed with short clips of Mr. Hoffa speaking to enthusiastic crowds of his supporters.  At this point,

Mr. Feldstein states:

Now the younger Hoffa’s campaign is also haunted by accusations of corruption.  Opponents say he surrounded himself with crooked cronies.  A one-time mob lawyer says he took cash from organized crime.  Hoffa denies it all, and no legal charges have ever been brought.  But law enforcement officials believe that Hoffa’s election will stop the clean-up of the Teamsters and the gains made to protect rank and file members.

The show gives a short interview clip of Ken Paff, describing him as a leader of TDU.  Mr. Paff denounces Mr. Hoffa as a front for the old guard and corrupt elements within the Teamsters.  After the Paff interview, Mr. Feldstein states, “Hoffa denies the charge and casts himself as a reformer.”  There is a short interview clip with Mr. Hoffa, who promises to clean up the union.

The show shifts to various pictures of Mr. Hogan, Mr. Ryan and Mr. Stone, while

Mr. Feldstein states that some of Mr. Hoffa’s closest supporters have been accused of misconduct.  Mr. Feldstein notes that each of the three men deny the charges against them.

Mr. Feldstein then reports that Mr. Hoffa has been accused of associating with organized crime.  There is a short interview clip with author Dan Moldea, alleging

Mr. Hoffa’s links to organized crime.  The program then shows an interview clip with

Mr. Hoffa denying any association with organized crime members.  The show then cuts to a clip with Frank Ragano, a self-described mob lawyer, who asserts he gave organized crime cash to Mr. Hoffa at his wedding.  Again, Mr. Hoffa specifically denies the charges during an on-the-air interview.  Mr. Feldstein describes more alleged mob connections with Mr. Hoffa after his father died.  Mr. Hoffa again specifically denies the charges and calls Mr. Ragano a twice-convicted felon and a “desperate, dangerous man.”

James P. Hoffa & Roy Atha

November 19, 1996

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The segment closes with more images of Mr. Hoffa with enthusiastic supporters at

the Convention.  Mr. Shaw concludes by saying, “When we come back, accusations by

Jimmy Hoffa Jr. that incumbent Teamsters President Ron Carey also had links to organized crime.”

The third segment begins by showing some delegates at the Convention heckling

Mr. Carey, followed by a group of Carey supporters chanting, “No mob rule.” 

Mr. Feldstein, noting that Mr. Carey is being accused of corruption and links to the mob, states, “Are the charges true?  Well, the federal panel that oversees the Teamsters says no.  But Carey’s critics have been spreading the charges with abandon.”  The program cuts to an on-air interview in which Mr. Hoffa shows Mr. Feldstein an immunity agreement signed by Mr. Carey.  The video shows Hoffa literature about the immunity agreement, then returns to Mr. Hoffa who says, “Obviously he must have had something to hide.  Why would he sign an immunity agreement?”

The video shows Mr. Feldstein in front of the Justice Department in Washington, D.C., stating, “But Justice Department officials tell CNN that Carey was never a target in the case, that he testified against the crooked Teamsters.”

The video shows a picture of Judge Webster, followed by a picture of a hand rifling through a report, which appears to be the IRB report on Mr. Carey.  Mr. Feldstein states, “Former FBI Director William Webster now helps run the federal board overseeing the Teamsters.  He investigated Carey’s immunity agreement.”  The program then shows Judge Webster in an on-air interview, stating, “From our perspective and our responsibility, it was of no significance.”

Mr. Feldstein then says that the most serious allegations against Mr. Carey come from Alphonse D’Arco.  The program then shows an interview clip with Mr. Carey denying he ever knew Mr. D’Arco.  This is followed by an interview clip with Mike Moroney, identified as a former Labor Department investigator and “a staunch critic of Carey,” stating he believes D’Arco.  The interview with Moroney is followed by Mr. Feldstein stating, “But Justice Department sources tell CNN that even D’Arco is now minimizing the allegations against Carey.  Much of the other evidence against Carey comes from people who are now dead, and cannot verify what they supposedly said years ago.”

The program cuts to Judge Webster on camera, stating, “We received all kinds of charges, innuendos, accusations of various kinds.  A very extensive effort was made to run those to ground.”  Mr. Feldstein narrates, “In all, William Webster and his panel investigated more than a dozen allegations against Carey lodged by his opponents, but they found no evidence of corruption or collusion with the mob.”

The program shows Mr. Carey on-air, stating, “They concluded that there was no wrongdoing and that these allegations were nothing but a smear campaign against me.  So what did my opponents do?  They then started attacking the investigators.”

James P. Hoffa & Roy Atha

November 19, 1996

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Over a video of a hand again flipping through the IRB report, Mr. Feldstein narrates, “Indeed, Hoffa says the panel’s 85-page report is a cover-up.”  The video then shows an on-air interview between Mr. Hoffa and Mr. Feldstein, which goes as follows:

Hoffa:              I think they’re trying to tamper with the election.

MF:              The federal government?

Hoffa:              Oh, I think so.

MF:              Why would they want to tamper with . . .

Hoffa:              I think they like Ron Carey, I think Ron Carey is their guy.

MF:              Why would the federal government want Ron Carey to be head of the Teamsters?  Why would they care?

Hoffa:              Well, I think that--I don’t know why, I mean, that’s a good question.  I think that they want a weaker union.

Right after that exchange, the program cuts again to an interview clip with Judge Webster, who states, “Well, we live in an age of conspiracy.  Those are what I call heavy charges in an election year, and without any foundation whatever.”

The video then displays a typed memo, while the voice-over states, “In fact, a Hoffa campaign advisor wrote a memo bragging that accusations had tarnished him badly.” 

Mr. Feldstein also quotes a portion of the memo stating that “we” must go after Carey’s

clean image.  Asked about the memo on air, Mr. Hoffa says, “I never saw that memo, that memo was floating around, and never acted on.”

The segment ends with a series of clips of both Messrs. Hoffa and Carey at rallies with their respective supporters.  In a voice-over, Mr. Feldstein concludes, “Teamster ballots are being mailed out this week.  The results will be announced in December.”

B.              Role of the IRB and the Justice Department

In the course of preparing its report, CNN contacted the IRB and spoke to its administrator, John Cronin.  At CNN’s request, Mr. Cronin described the background of the RICO case, the Consent Decree and the role and function of the IRB.  He also responded to CNN’s request by providing certain documents that were in the public domain, such as the Consent Decree itself and IRB reports and exhibits.

James P. Hoffa & Roy Atha

November 19, 1996

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CNN asked if it could interview, on camera, IRB member Frederick J. Lacey.  The IRB met and decided that Judge Webster should be their spokesperson.  Mr. Feldstein conducted a videotaped interview with Judge Webster that lasted approximately 35 to 40 minutes.  Mr. Cronin was present for the entire interview.  In addition to the comments shown in the program, Judge Webster discussed such other topics as the work of the IRB, the number of local unions trusteed and members expelled.  According to Mr. Cronin, neither he nor Judge Webster ever made any statements to the effect that law enforcement sources believed that Mr. Hoffa’s election would harm the reform process within the IBT.  Mr. Cronin states that at no time did Judge Webster or himself suggest or intimate any support for any candidate.  Neither Judge Webster nor the IRB had any control over how CNN used the interview, which comments it put on the air or the juxtaposition of his comments with other audio or visual portions of the program.

In response to the protest in P-1216, the Justice Department conducted an inquiry to see if anyone from the Justice Department or the Department of Labor made the statements attributed to “law enforcement sources.”  The Office of the United States Attorney for the Southern District of New York states that, with one exception, they are unable to identify anyone who contacted or was contacted by CNN.  The exception is the Assistant U.S. Attorney in New York responsible for handling requests to speak with Mr. D’Arco, who spoke to CNN, but “made no statement to CNN regarding the IBT election and expressed no opinion regarding any candidate for IBT office.”  The government further states that the Assistant U.S. Attorney was not the source for the other statements made in the program which were attributed to Justice Department sources.

The Justice Department further states that “the statement that forms the basis for

Mr. Hoffa’s protest does not represent the views of the Government.”

2.              Discussion

A.              Claims Against CNN

The protester in P-1235 argues that anyone watching the CNN report would conclude that CNN favored Mr. Carey and opposed Mr. Hoffa.  He asserts that CNN engaged in improper campaigning and made an improper campaign contribution to Mr. Carey by airing a biased show designed to support Mr. Carey, and timed to help him win reelection.  However, as explained below, the Election Officer finds that the contents of the program are protected public speech and do not violate the Rules.

Article XII, Section 1(b)(1) of the Rules states, in pertinent part:

No employer may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate.  No candidate may accept or use any such contribution.

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November 19, 1996

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The Rules define “campaign contribution” quite broadly:[2]

The term “campaign contribution” means any direct or indirect contribution of money or other thing of value where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate for . . . International Officer position.  Campaign contributions include but are not limited to:

              . . .

(h) The performance of personal services or the making available for use of space, equipment, supplies or advertisements . . .

The Election Officer has recognized a broad exception for “publications intended for and disseminated to the general public,” as to which “[t]he First Amendment of the U.S. Constitution requires . . . the greatest latitude in exercising the right to communicate.”  Hoffa, P-743-IBT-SCE (May 23, 1996).  Thus, under a “media exception” to the regulation of campaign contributions, the Election Officer does not exercise jurisdiction over “newspaper or magazine articles published by entities which are not owned or whose editorial policies are not controlled by candidates or committees acting on behalf of candidates.”  Pressler, P-365-LU705-CHI (February 22, 1996); Brennan, P-971-IBT (October 16, 1991); Scott, P-969-IBT (October 18, 1991).  The media exception also applies to cable and broadcast media.  See, e.g., Pressler (applying media exception to radio broadcast).

In Rockstroh, P-1003-JHC-EOH (November 5, 1996), the Election Officer reaffirmed that the media exception applies to editorial decisions about the coverage given to International officer candidates, even where a media entity publishes or broadcasts an opinion related to the IBT election.  “The fact that coverage was friendly in tone [to one candidate] was an editorial decision outside the scope of the regulations under the Rules.”  The decision further noted that “commentaries and editorials are also legitimate media functions.”

James P. Hoffa & Roy Atha

November 19, 1996

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Here, a national news television network produced and aired a program about the IBT and the two candidates for general president.  The program examined facts and allegations about the two candidates and charges of corruption made by each.  The show interviewed a variety of people giving their views, including both candidates, and portrayed facts as found by the reporter.  In no way did CNN go beyond its media function of airing reports or opinions about the news.  While a reasonable person may well conclude the program had a point-of-view about the charges and countercharges of corruption, CNN has a right to express its opinions, as well as factual conclusions, about the issues of corruption under discussion.  The Election Officer has previously found that airing the views of only one side in the election did not violate the Rules.  Rockstroh (interview with Messrs. Theodus and Hoffa with no appearance by Carey supporters not a violation).

The protester argues that the media exception does not apply here because the program was biased and intended to influence the election.  This argument misunderstands the basis for the media exception.  The Election Officer does not sit to judge the fairness or accuracy of statements and opinions published by non-IBT media.  The media exception protects articles and programs even if they are unfair or factually in error.[3]  Nor is the Election Officer able to control the timing of media broadcasts.  It is left to the independent judgment of the media to determine when a program will be aired.  Given the desire to be commercially successful, it is hardly surprising that a program would be timed to coincide with the greatest amount of interest in the subject matter.

Furthermore, given the purpose and constitutional basis of the media exception, it would not make sense to say that the media loses their protection because their reports or opinions might influence voters.  There is nothing about the timing of the broadcast that would cause CNN to lose the protection of the media exception.

The protester also cites the fact that the Carey campaign mailed out flyers and postcards advertising the upcoming CNN program.  Even assuming for the purposes of this protest that the Carey campaign mailed out these notices, they in no way affect the media exception as applied to CNN.  The right of the media to report facts and opinions is not lost simply because the media outlet decides to advertise its program or because someone else advertises it for their own reasons.

The Election Officer makes no judgment on whether the CNN program is fair, whether the opinions expressed therein are sound or whether the statements broadcast are correct.  It is enough to say that CNN had the right broadcast the story as it sees fit and cannot be held answerable for its editorial judgments to the Election Officer simply because the story is perceived as being more beneficial to one side of the election contest than another.  For these reasons, there is no basis for finding a violation of the Rules by CNN.

James P. Hoffa & Roy Atha

November 19, 1996

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B.              Claims Against William H. Webster

The protester in P-1234 alleges that Judge Webster made an improper campaign contribution to Mr. Carey by appearing on the broadcast and making the comments that he did.  According to the protester, Judge Webster’s comments, particularly his final comment, was “designed and intended to place him as a partisan in the IBT Election in favor of Carey.”

Article I of the Rules authorizes the Election Officer to take “all necessary actions . . . to insure fair, honest, open and informed elections.”  The protester describes Judge Webster as an employee of the International union in his role as a member of the IRB.  While the IRB acts for and on behalf of the IBT, pursuant to the Consent Decree,[4] members of the IRB are court-appointed officers and are not subject to the supervision or control of the union.  However, the Election Officer finds that her broad authority to supervise and conduct the election includes the power to remedy any conduct by the government or other court-appointed officers which presents a clear obstacle to a free and fair election.

Here, there is no evidence of any campaigning or other partisan activity by Judge Webster or the IRB.  The program aired four statements by Judge Webster:  (1) that violence and fear of violence is present where the mob is involved; (2) that the IRB did not find it significant that Mr. Carey once signed an immunity agreement; (3) that the allegations against Mr. Carey of corruption and association with organized crime were investigated but were not found by the IRB to be supported by evidence; and (4) the charge that the IRB was covering up for Mr. Carey was without foundation.  None of these statements constitute campaigning for or against any candidate.  They are statements based on the legitimate and proper activities of the IRB in response to questions about possible corruption within the IBT, a newsworthy issue of continuing importance.

Judge Webster’s first statement about violence and organized crime is hardly debatable and has been a basic assumption underlying the Consent Decree.  His next two statements about Mr. Carey were very short summaries of what the IRB had discussed at length in its

85-page report investigating those allegations against Mr. Carey.  Under paragraph G of the Consent Decree, the IRB is empowered with investigating allegations of corruption and connections with organized crime.  It may be that a finding by the IRB could have a subsequent impact on members’ perception of one or more candidates.  However, so long as the IRB properly exercised its authority in issuing the original report, it does not embark upon campaign activity simply by having one of its members repeat its conclusion in an on-air television interview.

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November 19, 1996

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There was also nothing improper about Judge Webster denying the charges raised by Mr. Hoffa that the IRB report on Mr. Carey was a coverup.  Just as Mr. Hoffa has the freedom to make any allegations to CNN about the conduct of the IRB, the IRB and its members have the right to respond to such charges.  Judge Webster’s denial of bias in the performance of his duties cannot be converted into a statement in favor of either candidate.

The protester claims that the full transcript of the broadcast shows that Judge Webster, the IRB, “and all of the Court officers supported Ron Carey and opposed Jim Hoffa.”[5]  However, the program does not contain a single word by Judge Webster supporting or praising Mr. Carey or commenting in any way upon Mr. Hoffa.  Contrary to the arguments made by the protester, Judge Webster does not suggest in any way that Mr. Hoffa is corrupt, or that Mr. Hoffa’s supporters are connected with organized crime.  Indeed, Judge Webster does not appear at all in the second segment of the program, when the allegations concerning Mr. Hoffa are discussed.  Any negative comments concerning Mr. Hoffa were made by others, or by the CNN reporter.

There is likewise no evidence that information attributed to the Justice Department

or “law enforcement sources” came from Judge Webster or the IRB.  To the contrary,

Mr. Cronin states that not only is the IRB not the source of those statements, but that he made clear to CNN that the IRB was not the government and not a law enforcement body.

The protester further argues that Judge Webster’s statements had the “foreseeable effect” of linking support for Mr. Hoffa with past union violence, as well as promoting the candidacy of Mr. Carey.  Even if the foreseeable effect standard is used, there is nothing about Judge Webster’s appearance that had the foreseeable effect of supporting or attacking any candidate.  Indeed, the Election Officer finds that his remarks did not support or attack any candidate and were not used to do so.[6]

The protester claims that in the past, he has sent to IRB investigators evidence of corruption and misconduct by supporters of Mr. Carey, and that his evidence has never been acted upon.  To the extent such claims are asserted to demonstrate possible bias behind Judge Webster’s on-air comments, the assertions are irrelevant because, as discussed above, there was nothing approaching campaign activity in the Judge’s presence on the program.  To the extent that the protester is asserting improprieties by the IRB investigators in the conduct of their investigations, the Election Officer is not the proper forum for such complaints.  IRB investigators are subject to the supervision of the IRB and, ultimately, the District Court.

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November 19, 1996

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Mr. Atha further complains that sometime in the last month, IRB Investigator

Michael Campbell spoke to him on the telephone and asked how Judge Webster could support Mr. Hoffa.  The Election Officer understands this incident as being presented to her as evidence of Judge Webster’s bias against Mr. Hoffa.  Even taking the allegation at face value, there is no evidence that Mr. Campbell’s views are in any way indicative of Judge Webster’s, or that Mr. Campbell’s views in any way dictated what was said during Judge Webster’s on-air interview.  There are no grounds for finding that Judge Webster or the IRB violated the Rules.

C.              Claims Against Mr. Carey, Mr. Paff and TDU

The protester in P-1235 asserts that Mr. Paff and TDU violated the Rules in connection with the CNN protest because Mr. Paff is not currently an IBT member.  According to the protest, Mr. Paff’s endorsement must be considered a campaign contribution.

The Election Officer has, a number of times, affirmed the right of TDU to campaign for or against candidates in the International officer election.  Halberg, P-238-TDU-EOH (February 12, 1996); Sargent, P-249-LU283-MGN (May 21, 1991), aff’d, In Re: Gully,

91 - Elec. App. - 158 (SA) (June 12, 1991); Durham, Post-75-IBT (January 10, 1992). 

Mr. Paff is the organizer of TDU and is entitled to express the committee’s views about any of the candidates.  Mr. Paff did not endorse Mr. Carey in the program, but criticized Mr. Hoffa and his supporters.  Even had he made an endorsement, there is no evidence that Mr. Paff’s participation in the program violated the Rules.  See Hoffa, P-1107.

Further, there is no evidence of any violation by Mr. Carey or his campaign, nor does the protester articulate a factual or legal basis for such a violation.

D.              Claims Against the Justice Department

The protester in P-1216 alleges that, according to the CNN program, “sources” in the Justice Department “claimed that a victory by [Hoffa] in the present election would be a ‘setback’ to the ‘fight against corruption’ within the IBT.”  However, the CNN program did not say that.  A careful review of a videotape demonstrates that the program attributed the comment to “law enforcement officials,” not the Justice Department.  The exact statement is, “But law enforcement officials believe that Hoffa’s election will stop the clean-up of the Teamsters and the gains made to protect rank and file members.”  The Justice Department conducted an inquiry and reports that it cannot identify any Justice Department official who was responsible for the statement.  Moreover, the Department reports that the statement in question does not accurately represent its position.

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November 19, 1996

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The protester has not presented any evidence that an authorized agent of the Justice Department made the disputed statement, and the Election Officer has not located any evidence to support the allegation.[7]  There is therefore no evidence that the Justice Department has violated the Rules.

For the above reasons, the protests are 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, 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