November 13, 1998
VIA FACSIMILE AND UPS OVERNIGHT
Peter Landon
November 13, 1998
Page 1
Peter Landon
1097 Hubbard
Detroit, MI 48209
C. Thomas Keegel, Sec.-Treas.
Teamsters Local Union 544
2636 Portland Avenue, S.
Minneapolis, MN 55407
Lawrence Brennan, President
Teamsters Joint Council 43
2801 Trumbull Avenue
Detroit, MI 48216
Paul Alan Levy, Esq.
Public Citizen Litigation
Group
1600 20th Street, NW
Washington, DC 20009
Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Donald G. Smith, President
Teamsters Local Union 299
2741 Trumbull Avenue
Detroit, MI 48216
Canadian Members Issues First Slate
c/o Rob Fletcher
71 Buchan Road
London, ON N5V 4H6 CANADA
Louis Lacroix Team Canada Slate
c/o Ron Douglas
Teamsters Canada
#204-1867 West Broadway
Vancouver, BC V6J 4W1 CANADA
John Metz Slate
c/o George U. Suggs, Esq.
Wilburn & Suggs
1015 Locust, Suite 818
St. Louis, MO 63101
George W. Cashman
15 Willow Street
Woburn, MA 01801
Ed J. Mireles
1208 S. Kings Court
Anaheim, CA 92801
C. Sam Theodus
202 James Circle
Avon Lake, OH 44012
Peter Landon
November 13, 1998
Page 1
Hoffa Unity Slate
c/o Patrick J. Szymanski, Esq.
Baptiste & Wilder
1150 Connecticut Avenue NW, Suite 500
Washington, DC 20036
Tom Leedham “Rank and File Power” Slate
c/o Arthur Z. Schwartz, Esq.
Kennedy, Schwartz & Cure, P.C.
113 University Place
New York, NY 10003
Gerry M. Miller, Esq.
Previant, Goldberg, Uelmen,
Gratz, Miller & Brueggeman, S.C.
1555 N. River Center Dr., Suite 202
Box 12993
Milwaukee, WI 53212
Aaron Belk
6502 Poplar Corner
Walls, MS 38680
Kenneth L. Hollowell
15336 Robson Road
Detroit, MI 48216
Robert H. Spearman
D-13 121 Bybee Drive
McMinnville, TN 37110
Peter Landon
November 13, 1998
Page 1
Re: Election Office Case No. PR-318-LU299-EOH [CORRECTED]
Gentlemen:
Peter Landon, a member of Local Union 299, 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 Joint Council 43; Thomas Keegel, secretary treasurer of Local Union 544 and a candidate for general secretary-treasurer on the Hoffa Unity Slate (“Hoffa Slate”); and Lawrence Brennan, president of Joint Council 43 and Local Union 337. The protester alleges that during speeches delivered at an official union function, Messrs. Keegel and Brennan improperly campaigned in support of James P. Hoffa and the Hoffa Slate, in violation of the Rules. Mr. Landon additionally alleges that Mr. Keegel was presented in an official receiving line by Local Union 299 officers who were wearing Hoffa Slate campaign paraphernalia.
Mr. Keegel denies all of the allegations. Mr. Brennan also denies the allegation, stating that he never mentioned Mr. Hoffa by name and that his speech contained only issue-oriented election comments that did not constitute campaigning. Local Union 299 denies that Mr. Keegel was presented in an official receiving line. The Hoffa Slate denies any knowledge of or involvement in the alleged activity.
The protest was investigated by Election Office Staff Attorney Peter F. Gimbrère.
Peter Landon
November 13, 1998
Page 1
On October 3, 1998, Local Union 299 held its annual honorary stewards’ dinner at the Crystal Gardens Hall in Southgate, Michigan. Of the estimated 400 people that attended the dinner, approximately 250 were Local Union 299 stewards and other active members. The remaining attendees consisted mainly of retired IBT members, as well as a number of non-IBT guests. Dinner was served at 7 p.m. The official program of speakers lasted from 8 p.m until 9:45 p.m. The speakers included local area politicians as well as Messrs. Keegel and Brennan.
According to Donald Smith, president of Local Union 299, Messrs. Keegel and Brennan had been invited to speak at the dinner at the behest of Local Union 299's Executive Board.
Mr. Hoffa had initially been invited to the dinner due to his position as administrative assistant at Joint Council 43, with which Local Union 299 is affiliated. As Mr. Hoffa was unable to attend, Mr. Smith invited Mr. Keegel. Mr. Keegel has no connection to Joint Council 43 or Local
Union 299. According to Mr. Smith, in the past other union officials from outside the immediate geographical area have been invited to speak at the stewards’ dinner. Mr. Smith stated that an invitation was also extended to Mr. Brennan due to his status as president of Joint Council 43. Mr. Keegel stated that he attended the dinner on his own time and at his own expense.
While stewards and other guests were arriving for the dinner, Edward Veccio, the secretary-treasurer of Local Union 299 was standing and talking with Mr. Keegel by the entrance of the hall. Aside from Mr. Veccio, no other officers were standing with Mr. Keegel at the door for an extended period of time. Mr. Veccio introduced some, but not all, of the arriving stewards and other guests to Mr. Keegel as they entered the hall. Both Mr. Veccio and
Mr. Smith deny that this arrangement constituted an official Local Union 299 receiving line, stating that it was merely an informal, friendly introduction to interested members.
When it came time for the speeches to be made, Messrs. Keegel and Brennan were invited by Mr. Smith to speak from a podium at the front of the hall. According to Mr. Smith, he spoke to both men before they entered the hall and specifically requested that they refrain from making any comments about the International Officer Rerun Election.
I. Alleged Remarks by Mr. Keegel and Mr. Keegel’s Response
The protester alleges that Mr. Keegel, speaking prior to Mr. Brennan, stated that “he was not supposed to mention that he was a candidate on the Jimmy Hoffa Slate,” that his subsequent remarks included references to “the real Jimmy Hoffa,” and that “members would have to choose what direction to go in the coming election.”
According to Mr. Keegel, after he was introduced by Mr. Smith but before he began his speech, someone in attendance but unknown to Mr. Keegel asked “whether he was the Tom Keegel on the Hoffa Slate?” Mr. Keegel responded that, “He was that person, but that he was not there to speak about that.”
Peter Landon
November 13, 1998
Page 1
Mr. Keegel’s speech went on to cover the duties and responsibilities of union stewards; the role of union stewards in the 1934 Teamsters strike in Minneapolis; and Mr. Keegel’s position with respect to Minnesota Joint Council 32 union stewards. Mr. Keegel answered questions regarding his role as Chairman of the NMFA Drug and Alcohol Committee, his work with the Joint Area Grievance Committee in Chicago, and his work on the National Master Freight Agreement.
Mr. Keegel admits stating that it was important for the membership to vote, that they would be receiving their ballots the week of November 2, and that “in their role as union stewards, they should encourage the membership to vote.” He denies, however, that he ever mentioned “the real Jimmy Hoffa” or the Hoffa Slate or that any of his comments constituted campaigning.
II. Alleged Remarks by Mr. Brennan and Mr. Brennan’s Response
The protester alleges that Mr. Brennan said that “I’ll probably get a protest over this but I’m here to ask you to vote for Jimmy Hoffa.” With respect to the rest of Mr. Brennan’s presentation, Mr. Landon testified that Mr. Brennan told the dinner guests to “vote the right way to get the union back” and that “if you don’t like the contracts they got at the St. Louis Dispatch then don’t vote for their guy.”
In his written submission to the Election Office Representative, augmented by a telephone interview, Mr. Brennan denies that he ever mentioned Mr. Hoffa or the Hoffa Slate by name. He admits making the comment to the effect that “he would probably get a protest over this,” but asserts that this comment was in reference to the fact that numerous protests are always filed in response to whatever actions he takes.
Mr. Brennan states that the majority of his speech “concerned the fact that two elections were coming up this fall, the general election and the IBT officers’ election, and the need for all Teamster members to participate in both votes.” With reference to the officer election in particular, Mr. Brennan mentioned that “members should be sure to vote because the IBT’s bargaining power on their behalf was at stake” due to the fact that “the International Union was virtually insolvent and unable to pay . . . out of work benefits.” Mr. Brennan denies that his comments constituted campaigning.
III. The Election Officer’s Investigation of the Alleged Remarks of Mr. Keegel and
Mr. Brennan
Peter Landon
November 13, 1998
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There is no dispute that Mr. Brennan prefaced his speech with the prophetic words that “he would probably get a protest” over his speech. Otherwise, the protester and the protest subjects disagree about material elements of the speakers’ remarks at the stewards’ dinner. The proceedings were not recorded and no witness has indicated that they know of an unofficial tape or transcript. Thus, the Election Office investigated this matter by interviewing eighteen (18) individuals who had attended the dinner. The investigator spoke with three (3) stewards selected randomly from a steward’s list provided by Local Union 299. The investigator also spoke with seven (7) other stewards that had publicly-declared their support for one or another of the three competing national candidate slates, three (3) Local Union 299 officers, two (2) retired IBT members, two (2) non-IBT attendees, as well as with Mr. Brennan himself. In all, the investigator interviewed Hoffa supporters, Leedham supporters, Metz supporters, and others of no allegiance.
Regarding the remarks of Mr. Keegel, the witnesses agreed that he mentioned his status as a candidate in response to an audience question before the beginning of his speech. The witnesses agreed that he did not otherwise mention his candidacy or refer to his campaign. There is no evidence that Mr. Keegel advocated the election of anyone during the speech.
There was no overall agreement among those interviewed as to what remarks
Mr. Brennan made. Different witnesses recalled different remarks before and during
Mr. Brennan’s speech. A majority of witnesses recalled Mr. Brennan stating at some point during his appearance at the podium that he knew that he was going to get a protest for whatever he said that night, and, indeed Mr. Brennan concedes the point. A number of witnesses confirmed hearing Mr. Smith telling Mr. Brennan specifically to refrain from mentioning the International officer election during his speech. However, seven (7) witnesses, including
Mr. Smith, an open supporter of the Hoffa Slate, as well as one of the witnesses provided by
Mr. Brennan, testified that Mr. Brennan openly defied that request and made specific, pointed references to Jimmy Hoffa and the Hoffa Slate during the course of his speech, including the statement “I’m here to ask you to vote for Jimmy Hoffa.” One witness interviewed, an official of Local Union 299, recalls being so shocked at Mr. Brennan’s overt campaigning that she put her head down on the table in disbelief. One of the witnesses (a Hoffa supporter) Mr. Brennan provided, also quoted Mr. Brennan as saying “when Hoffa is elected as president of the union, he will kick the miners out of the Teamsters.” Mr. Brennan’s speech lasted between five (5) and ten (10) minutes.
IV. Legal Analysis and the Election Officer’s Findings
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.
Peter Landon
November 13, 1998
Page 1
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.
Once it is determined that a remark is not related to an issue of legitimate interest to the membership, the question then remains as to whether or not the remark can be considered incidental. 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 campaigning is not subsidized by the union. 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 normal interaction or small talk. 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 who engage in bare campaigning in an improper context.
The Election Officer has applied the “incidental” exception to deny protests based on 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). Those cases do not apply here. They are limited by their facts to situations where, for example, a single incident of campaigning occurs during speeches or during question-and-answer sessions, while the speaker is talking about otherwise-legitimate union business. A speech made with the avowed purpose of campaigning and which includes campaign content cannot be described as “incidental” to legitimate union business.
Peter Landon
November 13, 1998
Page 1
The analysis is different if the speaker intentionally makes campaign statements in a speech, not as a reaction or response to an incidental question, but as part of a pro-active presentation. 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” violated 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. The fact that the comment was not scripted by the IBT did not absolve the IBT of responsibility. See Hoffa,
P-925-IBT-MGN (September 20, 1996), aff’d, 96 - Elec. App. - 244 (October 3, 1996) (finding that a preliminary statement which, among 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).
The Election Officer finds, based on the facts gathered in the investigation, that
Mr. Keegel’s speech did not contain campaign advocacy or other election-advocacy content. None of the witnesses corroborated the protester’s allegation that Mr. Keegel gave a campaign speech. Mr. Keegel’s speech at the stewards’ dinner did not violate the Rules.
Peter Landon
November 13, 1998
Page 1
The facts concerning Mr. Brennan are different. A significant number of witnesses heard him put a campaign-related preface on his remarks and Mr. Brennan admits doing that. Witnesses further described a speech containing candidate advocacy. Both a witness provided by Mr. Brennan and a witness who has declared his support for the Hoffa Slate stated that they heard Mr. Brennan deliberately deliver campaign comments at the stewards’ dinner. The Election Officer recognizes the difficulty of making a credibility determination where submitted written statements conflict and witnesses are not interviewed personally. Two witnesses in particular, however, give strength to the protester’s allegations. The statement of the Local Union 299 president, a Hoffa supporter with no reason to support the protester, that he remembers Mr. Brennan contravening a specific instruction against campaigning, as well as the statement of the other Local Union 299 official that she recalls dropping her head to the table “in disbelief,” reflect the sort of accounts that the Election Officer finds corroborate the allegation. Consequently, Mr. Brennan’s account of the event is discredited and his assertion that the majority of his comments constituted legitimate non-campaign speech is irrelevant. The substance, placement and relative length of the disputed remarks goes only to the remedy. Because Mr. Brennan’s blatant campaign comments occurred in a speech to members at a union function, they violate the Rules and do not constitute campaigning which is “incidental to” transacting legitimate union business.
Consistent with the holding in In re Ranita, 96-Elec. App. - 130 (KC) (March 20, 1996), citing In re Hoffa, 95 - Elec. App. - 28 (KC) (October 26, 1996), the Election Officer finds that Mr. Brennan’s campaign related remarks at the stewards’ dinner constituted impermissible campaign conduct. The fact that Mr. Brennan prefaced his campaign rhetoric with the statement that “he would probably get a protest over this” demonstrates his wilful and deliberate disregard for both the Rules and the integrity of the election process. Accordingly, the Election Officer concludes that Mr. Brennan engaged in a calculated attempt to influence the outcome of the election at the stewards’ dinner on October 3, 1998, in Southgate, Michigan.
As Local Union 299 tried to prevent Mr. Brennan from campaigning at the dinner, the Election Officer does not find it responsible for the Rules violation here. Furthermore, the Election Officer finds that there was no “official” Local Union 299 receiving line prior to the start of the steward’s dinner. There is no excuse, however, for Mr. Brennan’s overt campaigning in support of Mr. Hoffa and the Hoffa Slate during a union-financed event, especially after receiving a direct request from Mr. Smith to refrain from any references to the rerun election.
Accordingly, the protest is DENIED as to Joint Council 43, Mr. Keegel, and Local
Union 299 and GRANTED as to Mr. Brennan.
When the Election Officer determines that the Rules have been violated, he “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 finds that the following factors are significant to the choice of remedy. First, Mr. Brennan wilfully and deliberately violated the Rules. Mr. Brennan’s own remarks make clear that he knew how to act within the Rules when speaking at a union function. Despite that knowledge, he chose to give a campaign speech prohibited by the Rules. Second, by making the remarks at a stewards’ dinner,
Mr. Brennan deliberately chose a forum where his remarks could appear to have the imprimatur of Local Union 299 and Joint Council 43. Third, by speaking to an audience of stewards,
Peter Landon
November 13, 1998
Page 1
Mr. Brennan plainly had an audience that could be expected to transmit his speech and message to shops throughout the jurisdiction. He chose an audience that would carry his endorsement message, and its official context, to the membership. Fourth, by making this speech in the month before the start of balloting, Mr. Brennan committed a violation at a time when the usual remedies of publication, notice or equal opportunity to disseminate a competing message would be difficult to implement promptly. The time needed to investigate this matter thoroughly has further impacted the effectiveness of the remedies usually employed by the Election Officer to “level the playing field” and maintain the integrity of the election.
For these reasons, the Election Officer has concluded that remedies in addition to the usual correctives are necessary. The ballot period is open until December 3, 1998. All officers, members and employees of the IBT should know that misuse of union resources in this time period will have immediate and serious consequences. The Election Officer will therefore impose a contingent fine on Mr. Brennan to deter him from committing any other Rules violations from now through the certification of the election results. All slates and independent candidates are receiving a copy of this decision, and are hereby put on notice that they are also subject to the contingent fine provisions for any intentional violation of the Rules occurring between the date of this decision and the certification of the election results.
Accordingly, the Election Officer orders as follows:
1) Mr. Brennan shall immediately cease and desist from improperly utilizing local union resources to campaign for any candidate in the Rerun Election;
2) By November 18, 1998, the Leedham Campaign, the Metz Campaign, and those independent candidates who are running for union-wide positions, specifically Kenneth Hollowell running for union-wide office (general secretary-treasurer), Robert Spearman (at-large vice-president) and C. Sam Theodus (at-large vice-president), may, if they so choose, each submit a one page piece of 8 ½ x 11 campaign literature, printed on one side, to Mr. Brennan. By November 19, 1998, Mr. Brennan shall sign and mail the attached “Letter to All Members of Local Union 299" by First Class Mail to all Local Union 299 members and shall include with each letter a copy of each piece of literature provided to him by the Leedham campaign, the Metz campaign, and by the above-mentioned independent candidates.
Mr. Brennan shall also insure that copies of the signed letter are posted by a representative of Local Union 299 on all bulletin boards at the offices of Local Union 299. Mr. Brennan shall pay for all of the costs associated with the reproduction of the Leedham campaign, Metz campaign literature and above-mentioned independent candidate literature, the production of the letter to the Local Union 299 stewards, and the mailing of all of the items to all of the Local Union 299 members;
3) For any intentional violations of the Rules committed after the date of this decision and up to the date that the election results are certified, Mr. Brennan shall be subject to a remedial fine payable to the Office of the Election Officer. The fine for the first violation shall be $5,000. The amount for each subsequent violation shall increase by $5,000; and
4) By November 19, 1998, Mr. Brennan shall submit a signed affidavit to the Election Office detailing his compliance with this order and attaching evidence of payment of the costs of the mailing to Local Union 299 members.
Peter Landon
November 13, 1998
Page 1
Furthermore, all slates and independent candidates shall be held strictly liable for their supporters compliance with the terms of remedial paragraph number 3, above.
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). Due to the late-term nature and severity of the violation, the Election Officer will closely review the compliance required by this decision and reminds Mr. Brennan that failure to comply with the order in a timely manner will result in further fines being levied against him.
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,
Michael G. Cherkasky
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Letter to All Members of Local Union 299
In a recent decision, the Election Officer has found that I improperly utilized union resources to promote a candidate for International office in the rerun election while attending the Local Union 299 stewards’ dinner on October 3, 1998, in violation of the Election Rules. Under the Election Rules, union resources may not be used for campaigning.
I shall cease and desist from using union resources to assist the campaign of any candidate in the International officer election.
_________________ _________________________________
Date Larry Brennan
President, Joint Council 43
President, Local Union 337
This is an official notice which must remain posted through December 3, 1998, and must not be defaced or altered in any manner or be covered with any other material.
Approved by Michael G. Cherkasky, IBT Election Officer