November 17, 1997
VIA UPS OVERNIGHT
James P. Hoffa
November 17, 1997
Page 1
James P. Hoffa
2593 Hounds Chase
Troy, Michigan 48098
Ron Carey, General President
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
David L. Neigus
Deputy General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Susan Davis, Esquire
Cohen, Weiss and Simon
330 W. 42nd Street
New York, New York 10036
Bradley T. Raymond, Esquire
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, Michigan 48334
James P. Hoffa
November 17, 1997
Page 1
Re: Election Office Case No. PR-016-IBT-NCE
Gentlepersons:
James P. Hoffa, a candidate for general president, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against the IBT and IBT General President Ron Carey. Mr. Hoffa alleges that Mr. Carey gave a campaign speech at the National Press Club while on union-paid time. He also contends that the use of IBT funds to purchase 100 tickets for the speech violates the Rules.
The IBT responds that the speech constituted legitimate union business, that any campaign comments were incidental to such business and that the IBT’s purchase of tickets for IBT members was entirely legitimate.
The protest was investigated by Regional Coordinator Judith E. Kuhn.
James P. Hoffa
November 17, 1997
Page 1
In early August of 1997 the National Press Club invited Mr. Carey to speak at a “newsmaker luncheon” slated to be held on October 21, 1997. The standard format for a “newsmaker luncheon” provides for an address of about 20 minutes, followed by a question-and-answer period of about 30 minutes. Up to 400 members and guests of the National Press Club attend each luncheon. In addition, the event is broadcast by more than 400 stations of the National Public Radio network and by 4,200 cable systems affiliated with C-SPAN.
According to both the IBT and the National Press Club, the stated purpose of inviting Mr. Carey to speak at the October 20 luncheon was to discuss his role as chief negotiator for the IBT in the UPS negotiations. The invitation was initiated and developed by a reporter who had been closely following the UPS strike. The National Press Club concedes that after the Election Officer’s decision in Cheatem, Post-27-EOH, (August 21, 1997), aff’d. in rel. part, 97 - Elec. App. - 322 (KC) (October 10, 1997), which ordered that a rerun election be held, they considered creating an opportunity for both candidates to speak. However, they decided it would be too disruptive to change the format of the luncheon. They also admitted that they were interested in questioning Mr. Carey about the potential ramifications of a second election. There is no evidence of any other motive or purpose behind the luncheon speech.
On October 20, Mr. Carey appeared at the “newsmaker luncheon.” The IBT states that he attended during his lunch break. In attendance were members of the press and their guests, along with members of the IBT. The event ran from noon to 2:00 p.m. The protester asserts that since the General Executive Board of the IBT was meeting that day, Mr. Carey’s appearance at the luncheon was on working time in violation of the Rules. While Article VIII, Section 11(b) stipulates that officers may not campaign on time that is paid for by the union, it is well established that campaigning during paid lunch hours or breaks is not in violation of the Rules. See Hoffa, P-865-IBT-MGN (August 26, 1996), aff’d, 96 - Elec. App. - 232 (KC) (September 6, 1996). Given Mr. Carey's position, and his schedule, it is reasonable to find that he appeared at the National Press Club during his lunch break. See Caraball, P-653-LU272-NYC (April 3, 1996) quoting Dole v. International Ass'n of Machinists, AFL-CIO, Local Lodges 751-A, 751-C, 132 L.R.R.M. 2498 (W.D. Wa. 1989). Therefore, even if Mr. Carey’s comments at the luncheon constituted campaigning, his act of campaigning during a paid lunch break in and of itself does not constitute a violation of the Rules.
James P. Hoffa
November 17, 1997
Page 1
The IBT purchased 50 tickets for the luncheon at $27.50 each, for a total cost of $1,375. According to the IBT, these tickets were handed out to local union rank-and-file members who were interested in attending, to local union officers from the Washington, D.C. area and to IBT staff members, primarily from the IBT Communications Department. The IBT gave many of the tickets “as a reward” to those union members who had been most closely involved in the UPS strike. Decisions as to which members should get tickets were made by informal phone calls to local unions. According to IBT Communications Coordinator Nancy Coleman, the text on the ticket contained no mention of Mr. Carey. She also stated that the luncheon was advertised purely by word-of-mouth. The IBT was unable to provide records identifying which IBT officers and rank-and-file members received tickets.
Mr. Carey’s scripted speech covered a number of topics including: the imposition of temporary trusteeships; the recovery of misused workers’ pension funds; the general clean-up of corruption; ongoing cooperation with investigations into the 1996 IBT election campaign finance irregularities; the UPS strike and its aftermath; the fight against corporate greed; organizing workers at Federal Express; “soft” money, corporate and union contributions to elections; interaction between big corporations and what Mr. Carey termed as the “corrupt, old-guard leadership” of the IBT; political action committee donations from Union Pacific; campaign donations from tobacco companies; and the expansion of NAFTA.
During the question-and-answer period following the scripted speech, Mr. Carey fielded approximately 15 questions from the press. Near the middle of the question-and-answer period, Mr. Carey was asked the following question and gave the following answer:
Question: Let’s look ahead to the next election. Let’s say that you are allowed to run. What is the biggest difference between Carey and Hoffa? How would a Hoffa-run Teamsters differ from yours? Why is Hoffa bad for the Teamsters?
Answer: I think you go back to the weakness and corruption, the division that was in our union. The fact that this union was not about the members, it was about the ivory tower, the jet planes, the marble palace, the La Costas. It wasn’t about the members, about setting out on a journey, to have a strategy that worked for the members, corporate campaigns, all sorts of education, getting the members involved, making them first. That’s what our campaign has been about. Cleaning up the union. Getting rid of corruption, bringing in democracy. Making the members dues money work for them. And that is what my campaign represented then and that’s what it represents now. And going back to the next election, it has never been about one man, one individual. The union now is in the hands of its members. That’s what it’s about--it’s about the membership. It’s not about Junior and it’s not about Ron.
(Transcribed from videotape).
James P. Hoffa
November 17, 1997
Page 1
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, (August 17, 1995), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995). The Election Officer also considers the context in which the communications appeared.
In Martin, the Election Officer recognized that union officers and officials have a “right and responsibility to exercise the powers of their office 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 stated in Martin that:
. . . an otherwise acceptable communication may be considered campaigning if it goes on to make a connection with the election or the 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.
After reviewing both the transcript and video of Mr. Carey’s scripted speech, the Election Officer has determined that all of the topics discussed constitute issues of legitimate union concern. All of the remarks made during the speech can be tied to the business of the union as an institution. Sheldon v. O’Callaghan, 335 F. Supp. 325 (S.D.N.Y. 1971). However, the answer by Mr. Carey to the question cited above during the question-and-answer period constitutes campaigning due to the direct references to Mr. Carey’s election campaign. Mr. Carey had been notified by the National Press Club to expect numerous questions from the audience, an audience comprised mainly of reporters. Mr. Carey could have answered such questions in a non-campaign related manner.
The question then remains as to whether or not Mr. Carey’s references to his campaign in response to this question from the press can be considered incidental.
James P. Hoffa
November 17, 1997
Page 1
Article VIII, Section 11(b) of the Rules states, in pertinent part, that union officers and employees, if members,
. . . retain the right to participate in campaign activities, including the right . . . to openly support or oppose any candidate . . . However, such campaigning must not involve the expenditure of Union funds. Accordingly, officers and employees (and other members) of the Union may not campaign on time that is paid for by the Union. Campaigning incidental to regular Union business is not, however, violative of this section.
This section protects the personal right of union officers and employees to campaign, and it ensures that their exercise of that right gets no union subsidy. The exception for “incidental” campaigning on union time recognizes that as officers and employees perform their duties and interact with members, election discourse may be part of the normal personal discourse that takes place. See George, P-490-LU391-SEC (April 4, 1996) (discussing exception for “incidental” campaigning on work time). Thus, the “incidental” exception does not protect campaigning by union officers and employees outside of such normal interaction. Outside of those bounds, union officers and employees are exercising a personal right that the union cannot subsidize.
In determining those bounds, the Election Officer has applied the “incidental” exception to campaign-related conversations that union officers and employees have with members while transacting legitimate union business, Raymond, P-434-LU572-CLA et seq. (March 14, 1996); Newhouse, P-253-LU435-RMT (January 4, 1996). However, the Election Officer has clearly distinguished these “transaction of business” cases from those cases involving speeches to members by finding that one single incident of campaigning while talking about otherwise legitimate union business violates the Rules.
James P. Hoffa
November 17, 1997
Page 1
In Ranita, P-383-LU804-NYC (Decision on Remand) (March 26, 1996), the Election Officer was faced with the situation of a local union president making a short remark during a speech to striking IBT members. The Election Officer found no violation due to the brevity of the comment. However, on appeal the Election Appeals Master found that “a blatant and uncontroverted campaign statement” was a violation of the Rules. He stated that “no campaign speeches, scripted or spontaneous, tacked on the end of an otherwise legitimate business speech communicated to an assemblage of rank and file members are permissible.” In Re: Ranita, 96 - Elec. App. - 130 (KC) (March 20, 1996), citing In Re: Hoffa, 95 - Elec. App. - 28 (KC) (October 26, 1995). He added that, in campaign speech cases, the subjective evaluation of “such matters as substance, placement and relative length” of disputed remarks should bear only on the issue of remedy.
Similarly, in Hoffa, P-984-LU748-CSF (October 17, 1996), the Election Officer found that Floyd Weaver, a city councilman, crying “Five more years” at the beginning and end of Mr. Carey’s speech at a union-financed event constituted campaigning. Furthermore, the fact that the comment was not scripted by the IBT did not absolve them of responsibility:
There is no evidence that Mr. Weaver’s choice of words was directed or pre-arranged by the Carey campaign or the IBT. Nevertheless, it is language that advocates the election of a candidate, used at a location and an event at which no campaigning may take place . . . As such, it was out of place and inappropriate at this otherwise legitimate function.
See Hoffa, P-925-IBT-MGN (September 20, 1996), aff’d, 96 - Elec. App. - 244 (October 3, 1996) (finding that a preliminary statement which, amongst other things, referred to Mr. Carey as “our next general president” and was delivered by a local union officer prior to Mr. Carey’s speech constituted campaigning); Hoffa, P-133-IBT-CHI, aff’d, 95 - Elec. App. - 28 (KC) (October 29, 1995) (finding that campaign statements at the end of a legitimate speech to members are not incidental to regular union business); Eannuzzi, P-654-LU966-NYC (April 1, 1996), aff’d, 96 - Elec. App. - 171 (KC) (April 18, 1996).
In the instant case, the Election Officer has determined that even though the campaign-related comments made by Mr. Carey came during a question-and-answer period after the completion of Mr. Carey’s prepared speech, they do not escape under the “incidental to” exception. At this stage in the election, all parties are cognizant of the tightened rules and schedule under which the rerun election is being pursued. All parties are aware of what constitutes campaigning. Whether an interaction in front of members is scripted or unscripted, there is no excuse for candidates to settle into campaign rhetoric while on union time and/or at union expense.
As a result of the utterance of the campaign-related comments, the “newsmaker luncheon” was transformed from a legitimate union event into a campaign event. As Mr.Carey was on his lunch break at the time, his act of campaigning does not violate the Rules. However, the use of IBT funds to purchase tickets to the campaign event directly violates both Article VIII, Section 11(b) and © and Article XII, Section 1(b)(3) of the Rules. The expedited pace of this rerun election warrants strict scrutiny of the rules.
James P. Hoffa
November 17, 1997
Page 1
Accordingly, the protest is GRANTED.
When the Election Officer determines that the Rules have been violated, she “may take whatever remedial action is appropriate.” Article XIV, Section 4. In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.
The Election Officer has determined that the resources of the IBT were used to promote the candidacy of Mr. Carey. One answer by Mr. Carey to a question from a reporter turned an otherwise legitimate union event into a campaigning. While this was a violation of the Rules, Mr. Carey’s campaign remark was made during the course of the two-hour event. The Election Officer considered ordering the IBT to post a notice of its violation at all local unions in the Washington, D.C. area. However, such a widespread posting seemed excessively disproportionate to the limited nature of the violation.
Accordingly, the Election Officer orders the following:
1. The IBT shall cease and desist from using union resources to support the candidacy of Mr. Carey.
2. The Carey Campaign shall reimburse the IBT the amount of $1,375.00 to cover the cost of the tickets.
3. Within two (2) days of the date of this decision, the IBT shall post the attached “Notice to IBT Staff and Employees” on all bulletin boards at the IBT headquarters in Washington, D.C. Within one (1) day after posting the Notice, the IBT shall file an affidavit with the Election Officer demonstrating compliance with this order.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) 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:
James P. Hoffa
November 17, 1997
Page 1
Kenneth Conboy, Esquire
Latham & Watkins
885 Third Avenue
Suite 1000
New York, New York 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, 444 N. Capitol Street, Suite 445, Washington, DC 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Benetta M. Mansfield
Interim Election Officer
cc: Kenneth Conboy, Election Appeals Master
Judith E. Kuhn, Regional Coordinator
NOTICE TO IBT STAFF AND EMPLOYEES
The Election Officer has found that the IBT contributed union resources to promote a candidate for International office in the rerun election in violation of the Election Rules. Under the Election Rules, union resources may not be used for campaigning.
The IBT shall cease and desist from using union resources to assist the campaign of any candidate in the International officer election.
____________________ ______________________________________
Date Benetta M. Mansfield, Interim Election Officer
This is an official notice which must remain posted for 30 consecutive days and must not be defaced or altered in any manner or be covered with any other material.