February 18, 1998
VIA UPS OVERNIGHT
Ken Mee
February 18, 1998
Page 1
Ken Mee
42356 Greenbrier Park Drive
Fremont, CA 94538
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Susan Davis, Esq.
Cohen, Weiss and Simon
330 West 42nd Street
New York, NY 10036
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
John Travin, President
Trade Union Courier
215 Lexington Ave.
New York, NY 10016
Ken Mee
February 18, 1998
Page 1
Re: Election Office Case No. PR-045-JHC-PNW
Gentlepersons:
Ken Mee, a member of Local Union 287 and a candidate for Western Region vice-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 James P. Hoffa, candidate for general president. Mr. Mee alleges that The Trade Union Courier (“Courier”), a publication that bills itself as “America’s Leading Labor Newspaper,” improperly contributed to Mr. Hoffa’s campaign by publishing and circulating articles which supported his candidacy. An article published in the July/August 1997 issue of the Courier and appearing under the heading “Hoffa’s Corner” was attached to the protest. The protester also alleges that Mr. Hoffa used the Courier to campaign against Ron Carey during 1996 and 1997. Additionally, the protester asserts that Joint Council 16, the New York District Council of Carpenters and “numerous industrial unions in the United States and Canada” have improperly endorsed the preparation and distribution of the article by implication.
The Courier admits that it published articles about Mr. Hoffa but contends that it did not make a prohibited contribution to his campaign. Mr. Hoffa also argues that the publishing of the articles by the Courier did not violate the Rules.
Ken Mee
February 18, 1998
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The protest was investigated by Regional Coordinator Christine M. Mrak and Geoffrey W. Millsom, an attorney associated with Donovan Leisure Newton & Irvine LLP, working under the supervision of Election Office Counsel Richard W. Mark.
The investigation disclosed that the Courier has been published on a regular basis since 1936. Jay Travin serves as the president and sole shareholder of the company that publishes the paper. According to Mr. Travin, the Courier employs a small staff and is circulated primarily to approximately 3,600 local union offices across the country. Mr. Travin states that the paper is financed almost exclusively by paid advertising. Courier issues from 1997 were reviewed and found to contain product and corporate advertising .
John Stockman, the Courier’s editor, states that the paper receives story information from a variety of sources including government agencies, unions, consumer and advocacy groups, magazines and other newspapers. According to Mr. Stockman, the majority of the items appearing in the Courier are produced by editing articles from these sources or splicing one or more articles together. Mr. Stockman states that he rarely writes an original piece and engages in no investigative reporting.
The article attached to the protest is one of a series that appeared in the Courier under the heading “Hoffa’s Corner.” This series originated from an idea of Tai Aguirre, a Courier advertising salesperson. Mr. Aguirre states that he proposed the creation of a new feature to boost Courier circulation and to increase advertising revenue. According to Mr. Aguirre, his idea was simply to juxtapose exclusive press releases provided by the Hoffa Campaign and the Carey Campaign.
In October 1996, Mr. Aguirre contacted representatives of the Hoffa Campaign. Mr. Aguirre stated that he described the concept of the articles to Richard Leebove of RL Communications. RL Communications performs regular public relations services for Mr. Hoffa and Mr. Leebove has been cited in several newspaper articles as the Hoffa spokesman. After a few months, according to Mr. Aguirre, Mr. Leebove stated that the Hoffa Campaign had “no objection” to the publication of the series of articles as proposed. The Courier began to receive some non-exclusive press releases from the Hoffa Campaign.
Although Mr. Travin states that he asked that both the Hoffa and Carey campaigns be contacted about the feature, Mr. Aguirre and Mr. Stockman state that they did not receive any such instruction and that they never contacted the Carey Campaign. Both Mr. Travin and Mr. Stockman stated their belief that past Courier articles critical of Mr. Carey had made the campaign dislike the Courier.
Ken Mee
February 18, 1998
Page 1
“Hoffa’s Corner” first appeared in the November 1996 edition of the Courier. The article is 14 column inches in length, is outlined with a thick black border and contains a picture of Mr. Hoffa. It consists entirely of material that also appears in a press release issued by the Hoffa Campaign on November 22, 1996, and sent to Mr. Stockman. The press release supports the candidacy of Mr. Hoffa and criticizes Mr. Carey. The Courier reproduced Mr. Hoffa’s original press release as “Hoffa’s Corner” with only minor changes of format and punctuation.
There is no “Hoffa’s Corner” in the December 1996 issue, which was printed during the time that the ballots were counted in the initial election. The Courier printed the second “Hoffa’s Corner” article in the January 1997 edition, which repeated verbatim the entire text of “An Open Letter to All Teamsters,” a press release from the Hoffa Campaign that followed the initial election. Mr. Stockman remarked that the letter was sent to the Courier by Mr. Leebove or his representatives and that it was printed unedited because, in his view, a formal statement by a losing candidate to the rank and file was both timely and newsworthy.
Courier issues for February, March, April/May, May/June, June, July/August, October/November and November/December of 1997 each contain a “Hoffa’s Corner.” Each column is similar in size to the November 1996 column and utilizes a picture of Mr. Hoffa. Like the articles for November 1996 and January of 1997, all of the remaining “Hoffa’s Corner” features support the campaign of Mr. Hoffa and criticize Mr. Carey.
The “Hoffa’s Corner” which is published in the October/November, 1997 Courier reproduces verbatim a Hoffa campaign “Hoffagram” press release. The article starts with a double headline as follows: “Reports Indicate Carey To Be Disqualified or Indicted Soon - Hoffa Campaign In High Gear As Carey Scandals Continue Growing.” The first three paragraphs are:
The Hoffa campaign has hit the ground running. Already, Jim Hoffa’s rank-and-file army is back on full alert, blanketing worksites with literature, talking to members about Hoffa’s crusade to save the Teamsters and raising the money that makes the campaign go. If you care about the Teamsters, and you want to end the corruption of the Carey regime, join us today. Remember, it’s your fight, too. [emphasis original]
Jim Hoffa can’t win if you don’t work. Here are three things you can do to help:
- pass out at your worksite Hoffa literature and newspaper clippings about the continuing scandals of Ron Carey;
Ken Mee
February 18, 1998
Page 1
- tell every Teamster you know why you support Jim Hoffa; and
- send a check to the Hoffa campaign at [full address is set out] and ask your friends to do the same. If you have questions call the Hoffa Headquarters at [phone number is set out].
Mr. Travin states that no payment was ever offered to or received by the Courier
from Mr. Hoffa’s campaign for running the “Hoffa’s Corner.”
The Rules, at Article XII, Section 1(b)(1), provide as follows:
No employer may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate . . . No candidate may accept or use any such contribution.
“Campaign contribution” is defined by the Rules at “Definitions,” Section 5, as follows:
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 October/November issue of “Hoffa’s Corner” constitutes a prohibited employer campaign contribution, pursuant to the Rules. First, the Courier is an employer. See, Rules, “Definitions,” Section 17, p. xvi. Second, the Courier has stated that it received no payment to publish any of the “Hoffa’s Corner” columns. On its face, the column in question is campaign material. Therefore, the “Hoffa’s Corner” articles are “campaign contributions” as that term is used in the Rules.
Ken Mee
February 18, 1998
Page 1
In applying the Rules to media communications, the Election Officer has recognized a broad exception for “publications intended for and disseminated to the general public.” The Election Officer has determined that such publications are entitled to the “the greatest latitude in exercising the right to communicate” as required by the First Amendment to the U.S. Constitution. Hoffa, P-743-IBT-SCE (May 23, 1996). Designated as the “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” specifically applies to those publications which, like the Courier, target a labor audience. See, e.g., Sauwoir, P-041-LU41-EOH, et.seq. (August 16, 1995) (applying the “media exception” to the labor media).
The Election Officer has consistently determined that the lack ownership or control of a media entity by any International officer candidate or any committee acting on behalf of such a candidate is the primary requisite for the application of the “media exception.” See Hoffa, supra (allegedly pro-Carey article in the Union Democracy Review); Pressler, supra (interview with Mr. Hoffa on radio station ROCK 103.5 in Chicago); Hasegawa, P-161-LU41-MOI (October 24, 1995) (article covering Hoffa campaign in The Labor Times); Scott, supra (article on 1991 Carey campaign in Labor Notes); Brennan, supra (reprinting of Carey campaign material in article on 1991 election in the Detroit Free Press).
But where the media exceeds the outer perimeter of its constitutionally protected function as a provider of “news, commentary, or editorial” materials, the “media exception” is not applied. Rockstroh, P-1003-JHC-EOH (November 5, 1996). In Rockstroh, the Election Officer adopted as analogous that portion of the Federal Election Campaign Act (“FECA”) which exempts only the “news story, commentary, or editorial” from the definition of campaign expenditure, and no other media activities. See, 2 U.S.C. § 431(9)(B)(I). The test, as adapted in Rockstroh from the FECA, is “whether the press entity was acting as a press entity in making the distribution complained of.” See, Reader’s Digest Ass’n v. Federal Election Comm’n, 509 F. Supp. 1210, 1215 (S.D.N.Y. 1981); Federal Election Comm’n v. Phillips Publishing, Inc., 517 F. Supp. 1308, 1313 (D.D.C. 1981).
The “Hoffa’s Corner” article contained in the October/November 1997 issue of the Courier crosses the line. The first three paragraphs of that article were plainly written by representatives of Mr. Hoffa for the primary purpose of persuading and motivating IBT members to contribute their time, effort and money to the Hoffa Campaign. The material is not presented by the Courier in any other context. The Election Officer finds that the Courier was not acting as a member of the labor media with respect to the International officer election when it reprinted verbatim the Hoffa Campaign’s solicitations for contributions of time and money. Thus, to the extent of the first three paragraphs of the October/ November issue, the Election Officer concludes that the Courier made a contribution to the Hoffa campaign. Rockstroh, supra (spelling the address of the Hoffa Campaign out on a video screen while Mr. Hoffa responded to a question on how viewers could assist his candidacy exceeded the media function).
Ken Mee
February 18, 1998
Page 1
Mr. Mee argues that all of the protested articles “exist to extol the virtues of candidate Hoffa while tearing down his opponent Ron Carey, all under the guise of some type of editorial license.” Assuming the validity of this view, the mere replication by the Courier of materials originated by the Hoffa Campaign would not violate the Rules absent proof showing that the content of the articles resulted from a candidate’s ownership or control of editorial policies. There is no evidence here which suggests that Mr. Hoffa or his campaign controls or has controlled the editorial policies of the Courier.
With the exception of the articles appearing in the November, 1996 and October/November 1997 issues, all of the remaining articles appeared during the postelection period. Rules, Article XIV, Section 3. Unless a protest alleges a timely claim of improper threats, acts of violence or retaliation, postelection protests are only “considered and remedied if the alleged violation may have affected the outcome of the election.” See, Rules, Article XIV, Section 3(b). Because the election is being rerun due to improper conduct which occurred in the pre-election phase, the Election Officer has declined to docket or process post-election protests allegations of misconduct other than that described in the exceptional category unless specifically ordered to do so by the Election Appeals Master. Cheatem, Post-27-EOH (August 21, 1997), aff’d in rel. part, 97 - Elec. App. - 322 (KC) (October 10, 1997); letter to Sam Theodus from Interim Election Officer Benetta M. Mansfield dated September 24, 1997; letter to Ken Mee from Election Officer Barbara Zack Quindel dated June 25, 1997; letter to Bob Blanchet from Election Officer Quindel dated June 23, 1997. Consequently, the Election Officer has not considered the Courier for January, February, March, April/May, May/June, June, and July/August, 1997, as part of this protest.
With respect to the allegation of improper union endorsement, the masthead of the publication suggests that, in the past, the Courier was endorsed by several labor organizations, including those referred to by the protester. The Courier’s reference to previous endorsements is not pertinent to this protest. No evidence was provided to show that the Courier is currently endorsed by any labor organization.
Accordingly, the protest is GRANTED as to the October/November edition of the Courier, but is DENIED as to the other issues of the Courier as set forth above.
Under the Rules at Article XII, Section 1(b)(1), campaign contributions from employers are strictly prohibited. All services rendered to an International officer candidate or campaign must be paid for or a campaign contribution violation results. The Election Officer’s investigation discloses that a full page of non-color advertising in the Courier costs approximately $40.00. The Courier advertised the Hoffa Campaign’s street address and telephone number to a large potential audience.
Therefore, the Election Officer orders the following remedy:
Ken Mee
February 18, 1998
Page 1
1. James P. Hoffa and the Hoffa Campaign shall immediately cease and desist from the acceptance or use of improper employer contributions under the Rules.
2. The Courier shall cease and desist from making contributions to any candidate for IBT international office and shall specifically desist from printing material which contains the Hoffa Campaign’s address or telephone number.
3. Within five (5) days of receipt of this decision, the Hoffa Campaign shall pay to the Courier the sum of $10.00. Further, within five (5) days of receipt of this decision, Mr. Hoffa will file an affidavit with the Election Officer establishing his 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 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, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
MGC:chh
cc: Kenneth Conboy, Election Appeals Master
Christine M. Mrak, Regional Coordinator