IN RE: MIKE SCHAFFER,
Protest Decision 2000 EAD 24
Issued September 21, 2000
OEA Case No. PR071301NA
This decision supplements the earlier decision in 2000 EAD 8 (August 1, 2000). In that decision, the Election Administrator addressed the validity of election accreditation petitions filed on behalf of candidates for the "Hoffa 2001 Unity Slate." The Election Administrator found, inter alia, that the Hoffa slate had violated Article VII, Section 11(c) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") by distributing, by facsimile to local unions, blank election accreditation petition forms for individual candidates and individual candidate petition forms with the names of candidates printed or written thereon. Based upon this finding, the Election Administrator determined that the Hoffa slate's election accreditation petitions were presumptively invalid, but that this presumption could be overcome by "evidence acceptable to the Election Administrator that the submitted petition forms do not find their source in petition forms or copies of petition forms that were faxed to local unions or other IBT bodies by the Hoffa campaign." 2000 EAD 8, p. 9.
The Election Appeals Master affirmed the decision in 2000 EAD 8 in part. 00 EAM 2 (August 17, 2000). Specifically, the Election Appeals Master affirmed the holding of the Election Administrator that the Hoffa campaign's facsimile transmittal of election accreditation petitions to IBT local unions violated the Rules. 00 EAM 2, p. 9, ¶2. The Election Appeals Master, however, modified the remedy for this violation in the following respect:
… the presumptive invalidity of Hoffa State accreditation petitions component in the remedy is vacated and dissolved. The Election Administrator will examine each petition submitted and determine, with specific findings of fact, whether the proffered sheet does or does not comply with the requirements of the Rules, including whether or not it is derived from materials found in his Decision to have been transmitted by the Hoffa Slate in violation of the Rules.
00 EAM 2, p. 12.
We have performed the tasks directed by the Election Appeals Master. In doing so, we find, for the reasons explained below, that the question of the invalidity of election accreditation petitions is moot for all Hoffa slate candidates except Robert Bouvier and Joseph McLean. We have, also for the reasons set forth below, declared 1152 Bouvier petition signatures and 1328 McLean petition signatures invalid under the holding in 2000 EAD 8, as modified.
Mootness. The Election Administrator accredited all Hoffa slate candidates with the exception of Teamsters Canada members Robert Bouvier, Joseph McLean and Garnet Zimmerman on September 15, 2000. In accrediting these candidates, the Election Administrator relied solely upon slate accreditation petitions distributed and signed by IBT members after the issuance of our August 1, 2000 decision in 2000 EAD 8. There is no evidence that the Hoffa campaign improperly transmitted such slate petition forms to IBT local unions or subordinate bodies by facsimile. Therefore, there is no question as to the validity of those slate petitions under the holding in 2000 EAD 8 (as modified) concerning the facsimile transmission of election accreditation petitions to local unions.[1]
Since the validity of individual candidate petitions submitted for the non-Canadian Hoffa slate candidates will not affect the results of the accreditation determination for such candidates, any determination of their validity is moot, and need not be resolved at this juncture.
A determination of the validity of non-slate petitions submitted for candidate Garnet Zimmerman is also moot at this time, since he would have insufficient valid signatures for accreditation even if signatures in dispute under Schaffer were counted. Thus, as announced by the Election Administrator on July 21, 2000, in his "Advisory on Accreditation of Candidates and Publication of Campaign Literature in The Teamster" (the "Accreditation Advisory"), Canadian regional officer candidates (such as Zimmerman) were required to submit 2,479 valid accreditation petition signatures to the Election Administrator by August 31, 2000. On that date, the Hoffa campaign submitted 505 facially valid[2] slate petition signatures in support of Zimmerman's candidacy. It also timely submitted 1891 facially valid single candidate petition signatures, some of which (999) would have been declared valid under the Schaffer remand and some of which (892) would have been declared invalid under the remand (since the latter category of signatures appeared on petitions that could not be distinguished from petitions admitted by the Hoffa slate campaign to have been transmitted by facsimile to IBT local unions).[3] But even if all three categories of these signatures were valid under the Schaffer remand, Zimmerman would have submitted only 2,396 facially valid signatures, 83 signatures short of the amount of valid signatures required for accreditation. Any determination of the validity of the 892 Zimmerman signatures in dispute under Schaffer as modified is thus moot at this time.
Bouvier and McLean. The Hoffa slate campaign submitted 505 facially valid slate signatures each on behalf of Bouvier and McLean, which we have allowed under the remand in Schaffer for the reasons discussed in the first full paragraph on page 2 of this decision. The Hoffa slate also submitted 910 facially valid non-slate signatures for Bouvier and 973 facially valid non-slate signatures for McLean, which we have allowed under the remand in Schaffer. We base this determination of propriety upon evidence supplied by the Hoffa campaign that the individual candidate petitions containing these signatures were "not … derived from materials found in [2000 EAD 8] to have been transmitted by the Hoffa Slate in violation of the Rules." 00 EAM 2, p. 12. Specifically, we find, based upon a sworn affidavit by the Hoffa campaign's Volunteer Campaign Manager, that each of the individual candidate petitions containing these signatures were distributed by the Hoffa campaign either during a Hoffa slate meeting on June 19, 2000, or by mail to the homes of Hoffa supporters. Further, our verification of the petitions bearing these facially valid signatures is based upon each petition's distinguishing physical characteristic, viz., the vertical alignment on each such petition of the typed name of the individual candidate and the position that candidate seeks.[4]
In addition, the Hoffa campaign submitted 1152 facially valid petition signatures on behalf of candidate Bouvier which were on petition forms that the Hoffa campaign concedes may have been faxed to local unions, and thus transmitted in violation of the Rules, as found in the partial affirmance in 00 EAM 2. Similarly, the Hoffa campaign submitted 1328 facially valid petition signatures on behalf of candidate McLean which were on petition forms that the Hoffa campaign concedes may have been faxed to local unions, and thus transmitted in violation of the Rules, as found in the partial affirmance in 00 EAM 2. If these facially valid signatures were declared valid under Schaffer (and if all other remaining validity determinations were positive as to these and other signatures),[5] they would put candidates Bouvier and McLean over the threshold of 2479 valid signatures required for accreditation in their region (Canada).
We cannot, however, declare these petition signatures valid under the terms of the remand in Schaffer. As to the petitions bearing such signatures, they were presented by the Hoffa slate in a manner whereby it was impossible for the Election Administrator to conclude that they were not "derived from materials found in [Schaffer] to have been transmitted by the Hoffa Slate in violation of the Rules." 00 EAD 2, p. 12. As the Hoffa slate campaign concedes, it cannot be determined by that campaign whether the petitions that bear these signatures found their source in petition forms transmitted by facsimile to local unions. Thus, in transmitting the Hoffa campaign's election accreditation petitions to the Election Administrator, campaign counsel J. Douglas Korney stated:
The Hoffa 2001 Campaign Petitions that are being filed as of [August 31, 2000] fall into the following three categories:
…
Individual Petitions that were distributed in a variety of different ways - some by hand delivery, some by mail, some via the Internet, and some faxed to the various local unions. These Petitions can be distinguished by the fact that the name of the candidate and the position sought are not vertically aligned. An example of such a Petition is attached hereto as Exhibit B. The Campaign cannot discern which of these Petitions were distributed by fax and which ones were distributed by some other means. The same holds true for blank Petitions.
(Korney Letter of August 31, 2000 - attached as Appendix A)(emphasis in original).
Our physical examination of these submitted accreditation petitions for candidates Bouvier and McLean (the "Paragraph 3 Bouvier/McLean Petitions") bears this out. Thus, while some of the petitions that the Hoffa campaign admits that it faxed to local unions were blank, most were typed in a discrete font with the name of the candidate and the position sought not vertically aligned. The same is true of the Paragraph 3 Bouvier/McLean Petitions.[6] As the campaign admits, it is physically impossible to distinguish between the faxed petition forms and petitions summarized in the above-quoted text based upon the manner in which they were distributed by the campaign.
Moreover, the Hoffa slate had sufficient opportunity to present evidence that the Paragraph 3 Bouvier/McLean Petitions were not "derived from materials found in [Schaffer] to have been transmitted by the Hoffa Slate in violation of the Rules." 00 EAD 2, p. 12. Thus, on July 21, 2000, the Election Administrator issued the Accreditation Advisory, which established August 31, 2000 as the deadline for submission of petitions for accreditation of candidates seeking publication of their campaign materials in the October 2000 issue of The Teamster, and September 7, 2000, as the deadline for submission of campaign materials for such publication. (Accreditation Advisory, p. 2, 3)
That advisory required the submission of all of a candidate's petitions at the same time, thus precluding rolling submissions. (Accreditation Advisory, p. 2) Nevertheless, on August 7, 2000, the Election Administrator informed the Hoffa slate that rolling submissions would be permitted, in order to allow time for the validation of petition signatures called into question by Schaffer. The Hoffa slate, however, did not turn in any petitions until August 31, 2000.
Accompanying the August 31 petition submission was the above-referenced letter from counsel for the Hoffa slate (Appendix A hereto), which asserted the grounds for validation under 2000 EAD 8 as modified of the Hoffa campaign's slate petitions, as well as the individual candidate petitions referred to in paragraph 2 of that letter. The letter was not accompanied by any other evidence of validity, but, after a discussion between the Election Administrator and the Hoffa slate's counsel, affidavit testimony was submitted. (This affidavit testimony is attached hereto as Appendix B.) Finally, the Election Administrator offered the Hoffa slate an additional opportunity to submit evidence of the validity of the Paragraph 3 Bouvier/McLean Petitions under Schaffer, but no additional evidence of validity was provided.
Based on the foregoing, we have no alternative but to disallow 1152 facially valid petition signatures for candidate Bouvier and 1328 facially valid petition signatures for candidate McLean. The Hoffa slate has acknowledged that these petitions cannot be physically distinguished from petitions "derived from materials found in [Schaffer] to have been transmitted by the Hoffa Slate in violation of the Rules." 00 EAD 2, p. 12. And the Hoffa slate has offered no other evidence that allows the Election Administrator to determine that the Paragraph 3 Bouvier/McLean petitions are not tainted by the Rules violation found in 2000 EAD 8 as modified.
Remedial Issues on Remand. Our decision in 2000 EAD 8 contained a cease and desist order and required a notice posting. The Election Appeals Master's decision in 00 EAM 2 left these remedies undisturbed. We have accordingly revised the Notice To All Local Unions included in 2000 EAD 8 to reflect the modification in the Schaffer remedy that was ordered by the Election Appeals Master and, in addition to the determinations set forth above, restate the terms of our modified order as follows:
The Election Administrator orders the Hoffa campaign to cease and desist from any future violation of the Rules with respect to the use of union resources in the distribution of campaign materials. Further, the Election Administrator orders the Hoffa campaign to fax a copy of the attached Notice to each IBT local union no later than five (5) days after receipt of this decision. Within one (1) day after so faxing the Notice, the Hoffa campaign shall file an affidavit with the Election Administrator demonstrating compliance with this decision.
An order of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, c/o International Brotherhood of Teamsters, 25 Louisiana Ave., NW, Washington, DC 20001, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2000EAD24
NOTICE TO ALL LOCAL UNIONS
The Election Administrator has determined that the Hoffa slate violated the Election Rules by its fax transmission of certain election accreditation petitions to virtually all IBT local unions throughout the United States and Canada. In issuing this decision, the Election Administrator has ordered the Hoffa slate to cease and desist from any future violation of the Rules with respect to the use of union resources in the distribution of campaign materials.
Further, each local union must assure that campaign literature on behalf of any candidate is distributed by each local union only on campaign literature tables open on a non-discriminatory basis to all candidates. Election accreditation petitions may not be sent by any campaign to a local union for distribution at campaign literature tables, or for distribution other than by a candidate mailing consistent with Article VII, Section 7 of the Rules.
Further, all campaign literature sent by a candidate or campaign to a local union for non-discriminatory distribution must contain the following language on each page of the document to be distributed:
Union resources may not be used to copy this document. Campaign literature may be distributed by a local union only in a non-discriminatory manner through the use of a literature table open to all candidates.
___________________________
James P. Hoffa
Candidate for General President and head of the Hoffa 2001 Unity Slate
This is an official notice prepared and approved by William A. Wertheimer, Jr., Election Administrator for the International Brotherhood of Teamsters.
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Rd.
Suite 1551
Bingham Farms, MI 48025
Tom Leedham
18763 South Highway 211
Molalla OR 97038
Barbara Harvey
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
James P. Hoffa
General President
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
C. Thomas Keegel
General Secretary-Treasurer
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
Randy Cammack
Vice President
845 Oak Park Road
Covina, CA 91724-3624
Fred Gegare
Vice President
1546 Main Street
Green Bay, WI 54302
Chester Glanton
Vice President
300 South Ashland Avenue
Chicago, IL 60607
Thomas R. O'Donnell
Vice President
1 Hollow Lane
Lake Success, NY 11042
Ralph J. Taurone
Vice President
P. O. Box 30749
Salt Lake City, UT 84130
Jose Cadiz
Trustee
352 Del Parque Street
San Juan, Puerto Rico 00912-3702
Ron McClain
Trustee
2425 Delaware Avenue
Des Moines, IA 50317
John Steger
Trustee
3100 Ames Place, N.E.
Washington, D.C. 20018
Patrick W. Flynn
Vice President Central Region
4217 South Halsted Street
Chicago, IL 60609
Walter A. Lytle
Vice President Central Region
2644 Cass Street
Fort Wayne, IN 46808
Dotty Malinsky
Vice President Central Region
9409 Yukon Avenue South
Bloomington, MN 55438
Lester A. Singer
Vice President Central Region
435 South Hawley Street
Toledo, OH 43609
Philip E. Young
Vice President Central Region
4501 Van Brunt Blvd.
Kansas City, MO 64130
Robert Bouvier
President Teamsters Canada
2540 Daniel Johnson, Ste 804
Laval, Quebec, Can. H7T 2S3
Garnet Zimmerman
President, IBT Local 31
1 Grosvenor Square
Delta, B.C., Canada V3M 5S1
Joseph McLean
Vice President
Teamsters Canada
460 Parkdale Avenue, North
Hamilton, Ont., Can. L8H 5Y2
Jack Cipriani
Vice President Eastern Region
P. O. Box 35405
Greensboro, NC 27425-5405
Dan DeSanti
Vice President Eastern Region
2003 US Route #130
Suite B
North Brunswick, NJ 08902
John F. Murphy
Vice President Eastern Region
765 East Third Street
Boston, MA 02127
Richard Volpe
Vice President Eastern Region
6 Tuxedo Avenue
New Hyde Park, NY 11040
Ken Wood
Vice President Southern Region
5818 East MLK Jr. Blvd.
Tampa, FL 33619
Tyson Johnson
Vice President Southern Region
1007 Jonelle Street
Dallas, TX 75217
Chuck Mack
Vice President Western Region
P. O. Box 2270
Oakland, CA 94621-0170
Jon L. Rabine
Vice President Western Region
553 John Street
Room #28
Seattle, WA 98109
Jim Santangelo
Vice President Western Region
9960 Baldwin Place
El Monte, CA 91731-2288
Mike Schaffer
4580 Rhode Island Drive
Apt. 4
Youngstown, OH 44515
Hoffa 2001 Campaign
P.O. Box 2829
Alexandria, VA 22301
[1] The Election Administrator is currently investigating two Leedham campaign protests that challenge the validity of the Hoffa slate petitions. However, we have found no evidence in that investigation that the Hoffa campaign transmitted Hoffa slate petitions to IBT local unions by facsimile. Instead, the Leedham campaign challenges the validity of the Hoffa slate petitions based upon its allegation that petition circulation instructions were faxed by the Hoffa campaign to IBT local unions and other subordinate bodies. Because this issue is currently before the Election Administrator, we conditioned our accreditation of the non-Canadian Hoffa slate candidates upon the outcome of these protests. We will address these allegations in a separate decision that will be issued upon completion of our investigation.
[2] The reference in text to "facially valid" petition signatures refers to signatures that contain the information required by Article X, Section 4(a)(1) of the Rules. In addition to the determination of facial validity under Section 4(a)(1), under Section 4(a)(2) of that Article the Election Administrator randomly checks the membership status of the pool of those whose signatures are facially valid, in order to determine statistically what proportion of facially valid signatures on a candidate's petitions should be counted in meeting the threshold set for the candidate under Article X, Section 1 of the Rules. Given our determinations here, it was not necessary to subject the Hoffa slate Canadian candidates' petitions to this Section 4(a)(2) analysis.
[4] Consistent with this finding, the faxed petitions supplied by the protestor in Schaffer were not in this format (except for individual candidate petitions for Mr. Hoffa). Instead, the name of the candidate and the position sought were unaligned on such petitions and, when the candidate's name and position sought was inserted in typeface, a different font from that of the vertically aligned valid petitions was used.
[6] Each of the Paragraph 3 Bouvier/McLean Petitions has the name of the candidate and the position sought typed in (none are handwritten in), and each has the name and position sought vertically unaligned in the same fashion as the Bouvier and McLean petitions that the Hoffa campaign concedes (in a letter to the Election Administrator dated September 12, 2000) were faxed to local unions. We cannot conclude that any of the Paragraph 3 Bouvier/McLean Petitions found their source in blank petitions sent to the petition solicitors either by facsimile to a local union or in a legitimate manner, and the campaign offered no such evidence as to any such petition.