November 20, 1996
VIA UPS OVERNIGHT
Brad Swannie
November 20, 1996
Page 1
Brad Swannie
10823 85-A Avenue
Delta, BC V4C 2V2
Ron Carey Campaign
c/o Nathaniel Charny
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
Garnet Zimmerman, President
Teamsters Local Union 31
#1 Grosvenor Square
Delta, BC V3M 5S1
James P. Hoffa Campaign
c/o Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
Brad Swannie
November 20, 1996
Page 1
Re: Election Office Case No. P-1257-LU31-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
Brad Swannie, a member of Local Union 31. Mr. Swannie alleges that the October 1996 issue of his local union’s publication, 31 Team Work, contains campaign material in violation of the Rules.
Specifically, Mr. Swannie contends that coverage of the International Convention and the Canadian Sovereignty amendment to the IBT Constitution in the protested publication amount to an attack on the candidacy of Ron Carey, incumbent general president and a candidate for reelection, in violation of the Rules. The protester asserts that this coverage was “extremely negative, misleading and, in several instances[,] factually erroneous . . .” While the protester concedes that coverage of such issues is a legitimate function of a local union publication, he contends that the specific references to candidates in a publication controlled by an opposing candidate, and the nearness of the International officer election, makes the coverage campaigning under the “tone, content, and timing” analysis.
Brad Swannie
November 20, 1996
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Election Office Protest Division Chief Benetta Mansfield investigated the protest.
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 communica-tion 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 31 Team Work prior to its publication. The Election Officer issued a letter on October 28, 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 1996 issue of 31 Team Work is 16 pages long. On the front page the publication is identified as a special Convention issue. 31 Team Work is a quarterly publica-tion. The last issue was published prior to the Convention. The protested issue was scheduled to be distributed in October 1996 but was not approved by the Election Officer until
October 28, 1996. The publication begins with an introductory passage informing readers of the date and location of the Convention and describing an overview of Convention goals and results.
A “President’s Report,” entitled “My thoughts on the ‘Sovereignty’ document,” occupies the second and third pages of the publication. Garnet Zimmerman, president of Local Union 31 and a candidate for International vice president on the James Hoffa-No Dues Increase-25 & Out Slate (“Hoffa slate”), wrote the report. Mr. Zimmerman begins the report with the statement:
I am writing this report because I want to set the record straight, once and for all, on my position on the proposed “sovereignty document that Bros. Louis Lacroix [elected president of Teamsters Canada and a former member of the Ron Carey No Corruption-No Dues Increase slate (“Carey slate”)] and Ron Carey want to install in our Constitution.
Brad Swannie
November 20, 1996
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Mr. Zimmerman goes on to state his position on the referenced document and to criticize Messrs. Carey and Lacroix for the manner in which the content of the Canadian Sovereignty amendment was proposed (and partially voted on at the Convention) and prepared. Mr. Zimmerman also criticized Mr. Carey for the manner in which he conducted debate over the proposed amendment in his role as Convention chair.
The next two pages of the publication are devoted to two charts. The first, entitled “The Canadian Sovereignty Documents - A Record of Betrayal?” documents the differences between the 1993 resolution passed by the Canadian Conference of Teamsters, the current IBT position on Canadian sovereignty, and the position of Local Union 31. This chart is accom-panied by an inset box containing a passage commenting on an included quote from the minutes of a Teamsters Canada meeting in Montreal on September 9, 1994. In the passage, Mr. Zimmerman points to the excerpted minutes as proof that Mr. Lacroix, who
Mr. Zimmerman states has publicly announced opposition to separation from the IBT, intends that Teamsters Canada be rendered completely independent from the IBT.
The second chart appears below the first and is entitled “The ‘Sovereignty’ Time Line: From ‘Sovereignty’ to Separation. The chart presents a sequence of events in the Canadian sovereignty movement.
The next section of the publication begins with the header, “Convention ‘96 DELEGATE REPORTS.” The first report, written by Delegate Murray Ballard and entitled “‘Dictatorship’ stalls Convention business,” states that democracy was absent from the Convention and criticizes the Convention chair for the manner in which he conducted the Convention.
The second report, “TDU does turnaround” by Delegate Kathy Peters, criticizes Teamsters for a Democratic Union and Mr. Carey for supporting the seating of appointed delegates. Ms. Peters also criticized Mr. Carey’s actions as Convention chair as undemocratic.
Pages eight and nine of the protested publication include quotes from the Convention floor debates. Generally, these quotes reflect exchanges between delegates and Mr. Carey in which Mr. Carey refuses to address points raised by the delegates or ignores them.
The tenth page contains another delegate report. The report, “Autonomy, Yes. Separation, No” by Delegate Don Evans, criticizes Messrs. Carey and Lacroix for, as the report alleges, intentionally preventing a floor vote to ratify the Canadian Sovereignty amendment. Mr. Evans accused Messrs. Carey and Lacroix of collusion in order to secure the position of Teamsters Canada for Mr. Lacroix.
A short report from Delegate Bob Matricardi, “Utter disregard for Convention rules,” begins the 11th page. Mr. Matricardi states that he was “shocked and disappointed . . . to see the Chairman and General President, Ron Carey, show such a complete and utter disregard for the rules of order governing the running of this Convention.” He goes on to state that
Mr. Carey arbitrarily ruled opponents out of order and intentionally blocked debate on important issues. He referred to Mr. Carey’s performance as “a virtual dictatorship.”
Brad Swannie
November 20, 1996
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The report, “An ‘experience’ to say the least,” by Alternate Delegate John Ellis, fills the rest of the page. Mr. Ellis criticizes the manner in which votes were taken and accuses
Mr. Carey of manipulating votes because he lacked a majority.
Delegate Don Davies makes similar accusations in his report, “Proposed changes never heard: Carey blocked debate on issues.” On page 12 of the report, Mr. Davies states,
[The Convention chair] lied about vote results - calling every voice vote his way, and being proved wrong every time we forced an actual count.
The page also includes a schedule of general membership meetings for November and December.
Page 13 contains a report by Delegate Stan Hennessy entitled “Members deserved better.” Mr. Hennessy laments the failure to address important issues and blames Mr. Carey for the failure.
A one-and-a-half page report by Delegate Roger Rioux follows. In “Lesson in democracy hard to swallow for delegate,” Mr. Rioux voices criticisms similar to those expressed in preceding reports. He also describes the attempts of members of Local
Union 31’s delegation to speak at the Convention.
The remainder of page 15 is devoted to the reports of Alternate Delegate Ron Owens and Kory Lenning, whose role at the Convention is not identified. These reports contain criticisms of the manner in which Mr. Carey conducted the Convention, similar to those in preceding reports.
The last page of the publication includes the masthead of the publication, a list of business agent phone numbers, and a message urging members to vote in the International officer election.
The protester asserts that the commentary regarding the Canadian sovereignty issue and the Convention constitutes campaigning in violation of the Rules because of the excessive criticism of Mr. Carey, in light of the proximity of the election.
The investigation revealed that the October 1996 issue of 31 Team Work was the first scheduled issue of the publication printed after the Convention. Thus, the first opportunity to report Convention proceedings to the membership occurred in the October 1996 issue.
Mr. Zimmerman states that the publication is often distributed late. According to
Mr. Zimmerman, the October 1995 issue was also published in November. In addition, publication and distribution of this issue was delayed by the Election Officer, due to the pre-publication review process.
Brad Swannie
November 20, 1996
Page 1
The Election Officer acknowledges that issues concerning the Canadian Sovereignty amendment are of enormous concern to Canadian members. In prior decisions, the Election Officer has determined that union-financed communications expressing opinions on this issue constitute legitimate union business and do not automatically violate the Rules. See Hoffa,
P-733-IBT-SCE (May 1, 1996); Swannie, P-856-LU31-CAN (September 12, 1996).
The Election Officer also acknowledges that Convention coverage, a critical function of local union news entities, presents unique variables to analysis under the tone, content and timing test. Many aspects of the Convention were politically charged. Many attendees openly displayed their political affiliation. Energetic demonstrations of support for candidates were common, as were heated political debates. A portion of the proceedings was devoted solely to the nominations of International officer candidates.
The Convention is an event of significant interest to many IBT members. Informing members of the events of the Convention through union publications is a legitimate duty of local unions, joint councils and conference officers. Reporting on the proceedings at the Convention would be almost impossible without some reference to the nomination process, which was an integral part of the Convention, and without reference to one or more of the candidates. Moreover, Mr. Carey, as general president of the IBT, served as the chair of the Convention. This role focused a great deal of attention and interest on his actions. Generally, detailed coverage of Mr. Carey as Convention chair would not automatically violate the Rules.
In addition, a union-financed publication is not obligated to present all points of view concerning the conduct or outcome of the Convention. Similarly, a union-financed publication is not required to report on everything that occurred on the Convention floor. Such require-ments would effectively prohibit Convention coverage by union-financed publications by obligating journalists for such publications to report on every event, act or proceeding that occurred at the Convention. Such a requirement would not only create a near-impossible task for such reporters, but would also intrude on their journalistic discretion. 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).
Finally, union-financed publications may contain opinions of the manner in which the Convention was organized or managed, or the conduct of attendees, so long as such editorializing does not make a connection with the campaign or the International officer election. “Just as it is proper for incumbent Union officers to expend Union resources for the conduct of legitimate Union business, it is permissible for a Union member to criticize the manner in which the incumbent conducts such business.” Jacob, P-060-LU745-EOH
(July 21, 1995), remanded on other grounds, 95 - Elec. App. - 6 (KC) (August 14, 1995).
Brad Swannie
November 20, 1996
Page 1
The Election Officer has examined a number of Convention reports, published by local unions, joint councils and the International, for campaign content under the section of the Rules that applies to union-financed publications. Such publications may not “be used to support or attack any candidates or the candidacy of any person.” Article VIII, Section 8(a). See, e.g., Chalfant, P-882-JC28-PNW et seq. (September 6, 1996); Rodriguez, P-888-LU630-CLA (September 6, 1996); Hoffa, P-871-IBT-EOH (September 13, 1996); Halberg, P-900-LU174-PNW (September 18, 1996); Hall, P-1146-LU41-EOH (November 7, 1996).
The Election Officer’s refusal to restrict permissible commentary is especially important when applied to reports by delegates. In Chalfant, P-882-JC28-PNW, P-883-JC28-PNW (September 6, 1996), the Election Officer determined that the publication of such accounts in a joint council newspaper was permissible even though the majority of the delegates and alternates quoted were critical of Mr. Carey’s performance as Convention chair. The Election Officer rejected the contention of the protester that the publication of their comments constituted campaigning for Hoffa since most of the delegates and alternates in local unions affiliated with the joint council were supporters of Mr. Hoffa. The Election Officer has determined that reporting Convention proceedings to the membership is an important role and duty of delegates and alternate delegates.
The Election Officer has found that actions of the general president at the Convention are not only newsworthy, they invite comment. So long as such commentary does not establish a link to the election or campaign, and is limited to the performance of Mr. Carey’s office as general president or Convention chair, it does not violate the Rules.
While the tone and content of the protested articles are highly critical of Mr. Carey and the current administration, it is permissible commentary on an event of enormous significance to IBT members and an issue of great concern to Canadian members. The criticisms of
Mr. Carey are directed at his role as Convention chair and participant in the drafting of the Canadian Sovereignty amendment. The reports and commentary do not reference the election or the candidacy of any individual. The quarterly publication was scheduled to be published in October but its release was delayed during the pre-publication review process. While the standard by which such reports are analyzed becomes more stringent as the election approaches, the Election Officer determines that--even considering the proximity of the elections--the protested publication does not violate the Rules because it constitutes the first opportunity since the Convention to report on issues of important and legitimate interest to the membership.
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:
Brad Swannie
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