Barbara C. Deinhardt, Esq. Neutral Monitor 52 Third Street Brooklyn, NY (fax)

Transcription

1 Barbara C. Deinhardt, Esq. Neutral Monitor 52 Third Street Brooklyn, NY (fax) October 7, 2012 DECISION Protest TWUS Use of Union resources By dated September 10, 2012, Attorney Dean Hubbard, on behalf of the Transport Workers United Slate and Joseph Campbell, filed a protest alleging that the Union and the Stand United Slate violated the law and the Union constitutions and By- Laws by engaging in a pattern and practice of electioneering on the Union s time and at the Union s expense. The protester cites the following features of the website and a mailing done in September. The Local posted a photograph of former Local 100 president Roger Toussaint standing with presidential candidate Joe Campbell to support Samuelsen s campaign rhetoric that supporting Joe Campbell and Transport Workers United is akin to brining Roger Toussaint back to the Local. The Local notes that the photo of Toussaint and Campbell was removed by Wednesday, September 12. I find that this issue is moot. The protester alleges, The Local s website has become replete with other content showcasing Samuelsen and members of his slate as well as their campaign themes, citing specifically a photo of Samuelsen giving a radio interview for Labor Day, a photo of Angel Giboyeaux, the Stand United candidate for Administrative VP, with an audio link to a radio interview touting his Administration s contract strategy and response to the 2010 mass layoffs, an article about a new shift and worksite pick for workers in the Line Equipment and Signal Division that includes a quote from Samuelsen and an article about a safety award given by Local 100 to its Bus Operator Action Committee and a bulletin about an ongoing contract

2 arbitration regarding the requirements that REMs wear uniforms. Protester takes the position that these articles constitute electioneering in that they gratuitously publicize President Samuelsen and they are intended and timed to respond to specific criticisms of the Samuelsen Administration by Transport Workers United Slate. The protester also objects to a mailing done to Local 100 members announcing that the Union has been able to achieve significant guaranteed increases in the Supplemental Life Insurance Program and other benefits. Enclosures with the letter included a return card on which members could choose a free gift of a pen, mini- flashlight or calculator, an offer that protester characterizes as compensation in exchange for votes. Protester alleges that the benefits are not new and are being publicized now only because of the election. Protester characterizes the free gift offer as essentially compensation in exchange for votes. The Election Rules prohibit any candidate from receiving a contribution from a labor organization. Under the Rules, 5. A. 1. No candidate for election shall accept or use any contributions or other things of value received from any employer, representative of an employer, foundation, trust, union or similar entity. Nothing herein shall be interpreted to prohibit receipt of contributions from fellow employees and members of Local 100 or the International Union, unless that employee or member is an employer and is contributing money from his/her business. 5. A. 2. No employer shall be permitted to contribute anything to any campaign. The prohibition on employer contributions extends to every employer regardless of the nature of the business, or whether any union represents its employees, and includes but is not limited to political action organizations (other than a candidate s or slate s campaign organization), nonprofit organizations such as churches or civic groups, law firms, and professional organizations. These prohibitions include a ban on the contribution and use of stationery, equipment, facilities and personnel. 5. A. 3. The prohibition on campaign contributions extends to all labor organizations, whether or not they are employers, except as permitted below. 5. B. No Local Union services, facilities, equipment or goods including, but not limited to, time, staff, copying machines, fax machines, telephones, printing and postage shall be used to promote the candidacy of any individual or slate unless the Local notifies all candidates of the items available for use and all candidates are provided equal access at equal cost to such goods and services. The use of the Local Union s official stationery, or its logo or its name is prohibited irrespective of 2

3 (LMRDA) provides: compensation or access. 29 U.S.C. sec. Section 401(g) of the Labor Management Reporting and Disclosure Act No moneys received by any labor organization by way of dues, assessment, or similar levy, and no moneys of an employer shall be contributed or applied to promote the candidacy of any person in an election subject to the provisions of this subchapter. While LMRDA 401(g) broadly prohibits the use of union funds to promote candidates, it also contains a "safe harbor" which expressly states that "such moneys of a labor organization may be utilized for notices, factual statements of issues not involving candidates..." 29 U.S.C Sec 401(g). In interpreting these provisions, courts have held that the critical issue is whether the literature in question went beyond the scope of legitimate coverage of newsworthy activities and into the realm of violative union- financed campaign literature. Such a determination necessarily revolves around the timing, tone and content of the literature in question, in the context of the surrounding circumstances. McLaughlin v. AFM, 700 F.Supp. 726 (S.D.N.Y. 1988). The Second Circuit has affirmed that held that coverage of incumbent candidates in their respective representative capacities as active participants in matters of interest to the membership is permissible. Sheldon v. O Callaghan, 335 F.Supp. 325, 328 (SDNY 1971), aff d sub nom Usery v. Intern. Organization of Masters, Mates and Pilots, 538 F.2d 946, 949 (2 nd Cir. 1976). Citing the Sheldon court, the District Court for the District of Columbia held that [d]uly elected union officials have a right and a responsibility to advise and report to the membership on issues of general concern. In accordance with this responsibility, elected union officials are entitled to use union publications to express their views and to have their union activities reported in said publications. They are not ordinarily required to give space therein to the expression of contrary views. So long as such coverage is addressed to the regular functions, policies and activities of such incumbents as officers involved in matters of interest to the membership, and not as candidates for re- election, there is no violation. Camarata v. international Brotherhood of Teamsters, 478 F.Supp. 321, 330 (DDC 1979), aff d 108 LRRM 2924 (DC Cir, 1981). 3

4 In the case of New Watch- dog Committee v. NYC Taxi Drivers Union, 428 F.Supp (SDNY 1977), the Court stated: the press exposure received by the incumbent officers is substantially attributable to their participation in newsworthy events of interest to the Union, and that the Union paper has not been used as a campaign organ in violation of LMRDA 401(c), 29 U.S.C. 481(c). Plaintiffs have pointed to no instances of overt or express electioneering material in the newspaper issues submitted to the court. Rather, plaintiffs rely on the theory that simply because the Union officials have been featured in the newspaper and plaintiffs' candidates have not, the cumulative effect of such treatment in the months preceding the Union election must inevitably be to influence members to recognize, approve of, and ultimately vote for the incumbent officials, thus constituting misuse of the Union paper. This theory, though not implausible, must fail on the facts of this case. The defendant officials have been featured or included in a variety of articles The defendant officials also appear occasionally in smaller "color" items, such as articles or photo displays concerning local workshops and seminars, Union scholarship awards, visits to neighborhood garages, and Union supported recreational clubs. Defendants, in their official capacities, also co- author a regular editorial column entitled "The Message," through which they express the views of the Union executives on economic and political issues of interest to Local As noted previously, plaintiffs consider none of the foregoing activity to be overt campaigning. Instead, they claim that in sum it constitutes discriminatory use of the Union paper because it highlights the incumbents' activities while ignoring other candidates entirely. It is clear that the newspaper coverage of the defendant officers is addressed to their regular activities and duties as officers and not as candidates for re- election. Although this court recognizes that to an extent incumbent officers in a pre- election period must be potentially regarded as de facto though unannounced candidates for re- election, it cannot conclude that as a consequence all reporting concerning an incumbent official is to be treated as impermissible campaigning for the incumbent- candidate. The reporting reviewed by the court is certainly not a paragon of objective journalism, for it is uncritical of the defendant officers and plainly implies that they are diligently discharging their Union responsibilities. However, this without more cannot be construed as discriminatory electioneering or promotional literature so as to constitute a violation of LMRDA 401(c), 29 U.S.C. 481(c), and require the issuance of an injunction. As has been observed in this same situation, This is a judgment decision which is made with full appreciation of the character of the [Union newspaper] and similar publications of other national unions. We are aware that defendant [Goldberg], as the President of the union running for reelection, will in the nature of things be an important participant in many matters of interest to the membership and be more likely to have his participation in these matters the subject of inclusion in any report to the membership through the [Union newspaper]. A line must be drawn between the use of the [Union newspaper] to report the activities of defendant [Goldberg] as President, which is permissible, and the use of the [Union 4

5 newspaper], in such a way in reporting such activities, as to promote the candidacy of said defendant. Yablonski v. United Mine Workers of America, supra, 305 F.Supp. at 871. There is absent from this case such use by the incumbent president of the union paper to publicize severe criticism of opposing candidates and lavish campaign promises on his own behalf as was held unlawful in Hodgson v. Liquor Salesmen's Union, Local No. 2,334 F.Supp. 1369, (S.D.N.Y.), aff'd,444 F.2d 1344 (2d Cir. 1971). Nor is there here "electioneering for the incumbent candidate [and] ad hominem attacks upon an opposition candidate" such as were found to be present in one publication in Sheldon v. O'Callaghan, supra, 335 F.Supp. at 327 and n.2. Rather, as the Sheldon court held with respect to a second allegedly misused publication, the Union paper here displays [Goldberg] and other incumbent candidates in their respective representative capacities as active participants in matters of interest to the membership. It does not discuss members who are not active participants who are candidates for office. It is not unusual for the publication to publish pictures of incumbent officers in the performance of their related activities. This is not "excessive coverage... given to defendant..." Id., at 328 (citation omitted). Accord, Yablonski v. United Mine Workers of America,307 F.Supp (D.D.C.1969); cf. Hodgson v. Liquor Salesmen's Union, Local No. 2, supra; Hodgson v. United Mine Workers of America,344 F.Supp. 17, (D.D.C.1972). In examining the website and applying the factors set out above, I find that it does not constitute campaign literature. The timing of the articles does not support the protest as it is legitimately explained by the timing of the events that are the subject of the articles and not coincidental with any particular election event. Nor were they proximate to the voting, a critical factor in evaluating the impact of the publication. The content related to legitimate, pertinent issues confronting the Union. The fact that they may also have been issues that were the subject of TWUS campaign materials does not mean that the Union publicized the issues in response to TWUS coverage. Finally, the tone, while laudatory, was not so extreme as to constitute more than legitimate pride in the Union s leadership s actions. In these circumstances, in my opinion, they do not constitute improper use of Union resources for partisan purposes. The mailing in question was done by M3 Technology, a vendor of insurance products for Local 100 members. The card was identical in wording to one sent out in While purportedly signed by President Samuelsen, in fact the mailing was done by the vendor and was sent to those members who are in the company s data base as not already having life and/or disability insurance, about 10,000 members. The timing was determined not by President Samuelsen or anyone else in the Union but by the company, which has the right under the 5

6 contract with the Union to send out up to four mailings a year to members. The mailing makes no mention of the election. Under these circumstances, I find that the mailing did not violate the Election Rules or federal law. The protest is denied. In accordance with the International Constitution and the Election Rules, any interested party unsatisfied with this determination may appeal to the Transit Workers Union of America Committee on Appeals. Any appeal shall be in writing and shall be filed in accordance with the procedure set forth in Article IV(6)(I)(1) of the Election Rules and Articles XV and XXII of the International Constitution for the appeal to the International from decisions of Local Unions. Barbara C. Deinhardt Neutral Monitor By K. Dean Hubbard, Jr., Esq. Manio DiPreta, Esq. Arthur Schwartz, Esq. Larry Cary, Esq. Elections Committee 6