Protest Decisions

IN RE: TOM LEEDHAM SLATE and HOFFA UNITY SLATE
Protest Decision 2001 EAD 410
Issued: July 19, 2001
OEA Case Nos. PR062713NA and PR062714NA

(See also Election Appeals Master decision 01 EAM 82)

The Tom Leedham Rank and File Power Slate (the "Leedham slate") filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). The protest alleges that supporters of the Hoffa Unity Slate (the "Hoffa slate") intimidated voters as they proceeded to the polls on June 27, 2001 to vote for nomination of regional International Vice-President candidates. The Hoffa slate also filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules. It alleges Election Administrator William Wertheimer, Jr., and General Counsel Michael Nicholson reacted to the alleged conduct of Hoffa slate supporters in a manner that demonstrated a political bias towards members of the Leedham slate.

In 2001 EAD 404 (July 2, 2001), the Election Administrator designated Jeffrey Ellison "to investigate and determine the merits of each of the above-referenced protests, and to determine the appropriate remedy if he finds any violation of the Rules." This decision was not appealed.

In the course of the investigation, the undersigned obtained statements of 18 witnesses, scrutinized two videotapes of the hallway events protested by the Leedham slate, and reviewed and considered the statements of position made respectively by the Leedham slate, the Hoffa slate, and the IBT.

Findings of Fact

The setting. The IBT held its convention June 25 through 29 in Las Vegas, Nevada, during which candidates were nominated for International office. Candidates for the positions of Trustee and at-large Vice President were nominated June 26, those for regional Vice President June 27, and General Secretary-Treasurer and General President June 28. During the evening of each day floor nominations occurred, the Election Administrator conducted secret ballot voting on that day's nominations pursuant to Article III, Section 5(g) of the Rules. Voting for regional Vice President nominees commenced at 5:00 p.m. on June 27. Each such candidate was obliged to poll at least 5% of the delegate votes cast in the candidate's region in order earn a place on the ballot for this Fall's rank-and-file election.

Convention proceedings were conducted in a large auditorium in Le Convention Centre at the Paris Las Vegas Resort and Casino. Balloting on the nominations was held in the Gold ballroom of the adjacent Bally's Las Vegas Casino and Hotel. Paris and Bally's are connected structures. On June 27, the convention adjourned shortly before 5:00 p.m., and most delegates made their way immediately along the winding, rough-bricked "streets" of the Paris facility, through the carpeted casino of Bally's to a hallway approximately 150 yards in length that led to the voting area. Some sixty yards down the hallway from the casino are Palace 1 and 2, the side-by-side, double-doored conference rooms the Hoffa slate used as campaign headquarters. Forty yards further is a side corridor leading to Palace 6 & 7, the Leedham slate headquarters. Immediately adjacent to Hoffa headquarters, the hallway doglegs 45 degrees for approximately twenty yards before it angles back to continue the route to the voting area.

The "gauntlet." Jim Santangelo, incumbent Vice President for the West region seeking reelection to that position as a Hoffa slate member, established a position in the dogleg area of the hallway to campaign among voters arriving from the adjourned convention proceedings. With him initially were some two dozen supporters. Santangelo said, "we set up a gauntlet" [1]and described two irregular lines running the length of the dogleg area of the hall so that the natural flow of hall traffic had to pass between the lines. As guests and alternate delegates arrived from the convention hall, the lines quickly grew and the dogleg area massed with Hoffa partisans. [2] 

Some of the Hoffa slate supporters passed out "slate cards" to delegates to encourage them to vote for the Hoffa slate members standing for election that evening. Virtually all of the others participated in boisterous and enthusiastic rhythmic chanting, including:

san - TAN - ge - lo, san - TAN - ge - lo

and:

HO - bart, san - TAN - ge - lo, MACK

HO - bart, san - TAN - ge - lo, MACK[3]

This activity commenced at about 4:45, as delegates were arriving for voting. Campaigners for the Leedham slate, stationed against the wall on both sides of the hall 20 to 40 yards past the dogleg, heard the commotion and went to the dogleg to see what was happening. Tony Perlstein, member of Local 556, convention guest and Leedham supporter, saw Santangelo at the center of one of the lines of the gauntlet participating avidly. Perlstein reported the lines of the gauntlet were so close that persons could not walk two-abreast through the lines. Individuals wearing squash-yellow Hoffa vests were cheered, back-clapped and hugged, while voters wearing Leedham buttons and shirts were booed and jeered. Perlstein said the physical affection shown Hoffa supporters coming through the gauntlet slowed the flow of traffic such that it occasionally stopped completely, with the effect that Leedham supporters caught in the back-up were subjected to prolonged booing and jeering. With traffic volume near its peak, the Hoffa campaigners broke into a chant of "TDU sucks" he described as "raucous."

Doug Sabin, a Local 206 delegate and Leedham supporter, came down the hallway to vote between 5:10 and 5:15. He said sparse lines of Hoffa leafletters began near the elevators in the hallway, some 45 yards short of the dogleg. By the time he reached the dogleg, the lines were three feet apart with partisans standing shoulder to shoulder chanting loudly. He tried to work his way through the dogleg but the line of "people in front of [him] stopped" and he was "hemmed in" and delayed nearly a minute while loud chanting carried on about him.

Mike Brannan, delegate from Local 763 and Leedham supporter, came upon the gauntlet within five minutes after the convention adjourned for the day. He said the lines began before the start of the dogleg and continued "quite a bit past Hoffa headquarters." He said the natural flow of traffic led through the gauntlet, but he forced his way through one of the lines so he could avoid passing between them. He then stopped to observe the activity for a few moments and reported the chanting grew "thunderous" with non-voters and returning voters "filling in the lines." He was concerned that "our people would have to walk through this."

Dan Scott, delegate from Local 174 and Leedham supporter, came around the corner of the dogleg to find a "sea of yellow" Hoffa vests filling the area with a narrow passage down the middle that "funneled down to its narrowest point near Santangelo." He said campaigners were "sticking [Hoffa literature] in my face." Scott said, "I don't get scared easily," but when he saw the gauntlet, he thought, "Whoa, this makes me uncomfortable."

Sharon Anderson, another delegate from Local 174 and a Leedham supporter, was unnerved by the loud chanting. When Hoffa buttons and slate cards were "shoved in [her] face," she thought about going back to her room but said, "No, I can do this." She had addressed the convention twice that day as a Leedham delegate and believed she was recognized as such by the hallway throng. One Hoffa partisan declared to her, "You don't want to go vote now." Another outsized Hoffa campaigner blocked her path until she accepted a "Hoffa 2001" pin from him, which she did solely to gain passage. Before this convention, she was inexperienced in union political activity of this nature and concluded the gauntlet "was not a very nice thing to do."

Timo Shannon, security officer with O&R Protective Services, was posted in the dogleg area at the time. He stated the two "irregular lines" formed "slowly on either side of the hall." They were "really close together - about five feet apart" for 15 to 20 minutes, accompanied by loud chanting.

Hoffa partisans corroborated Leedham witnesses in large degree with respect to the physical events but diverged when describing the tenor of the activity. Randy Cammack, at large Vice President and candidate for reelection on the Hoffa slate, stated the hallway campaigning for Santangelo was "my idea to help Jim out." He said the campaigners stood along the walls "making jokes." He reported the mood of those assembled was "very light" and "joyful." Although he acknowledged the chanting of Santangelo's name, he could not recall any other chant and expressly denied the chanting of "TDU sucks."

Steve Vairma, Local 435 delegate and Hoffa supporter, said the lines were initially 4 feet apart but got squeezed to 3 feet apart by returning voters seeking to exit the area. He agreed there was loud chanting but denied a "TDU sucks" chant.

Edward Reynoso, Local 63 member, convention guest, and Hoffa supporter, claimed the lines were always at least 10 to 12 feet apart, enough for persons to walk freely in both directions between them. He acknowledged chants of "Santangelo" but denied "TDU sucks."

Meline Hall, Local 63 alternate delegate and Hoffa supporter, said a mere 20 partisans formed the gauntlet, 10 on each side, and the lines extended the length of the dogleg. She said the group was "having fun" chanting "Santangelo" and "Jimmy;" she was emphatic they did not chant "TDU sucks."

Santangelo, the intended beneficiary of the campaigning, described a happy crowd, complete with opposition delegates warmly greeting him with "How ya' doin', Jim." He firmly denied any chants of "TDU sucks," and further denied any arguments, threats, or profanity[4] by participants.

Videotape reviewed for this investigation[5]showed two dense irregular lines of vest-donned Hoffa supporters facing each other, with additional campaigners backing the lines. The partisans in one line stood some 3 to 6 feet from those they faced in the opposite line, but they reached out as voters passed between the lines, making the passageway correspondingly more narrow. The throng met arriving voters with loud chants of "Santangelo." Moreover, despite denials from all Hoffa witnesses recounted thus far, tape shows demonstrably that voters were addressed with prolonged and determined "TDU sucks" chants.

Wertheimer attempts to quell the disturbance. Stefan Ostrach, Leedham slate treasurer, observed the massed campaigners at the dogleg and concluded the activity had to be stopped. As he later wrote in the protest filed in this matter:

The Hoffa Campaign organized a goon squad which massed at approximately 4:45 p.m. today near the Hoffa office and proceeded to intimidate delegate voters who were coming to vote. Their loud screams, obscenities and chants were designed to intimidate and were specifically aimed at any delegate not wearing Hoffa vests and paraphernalia. They massed in the hallway to form a narrow gauntlet so that delegates had to file through the middle of the mob, at times even closing the gauntlet.

Ostrach saw Michael Nicholson, Election Administrator General Counsel, coming through the gauntlet from the direction of the casino two or three minutes after 5:00 and told him above the din, "You've got to stop this."

Before seeing Ostrach, Nicholson arrived at the dogleg and "found [himself] in the midst of people wearing Hoffa slate vests and other paraphernalia … very loudly yelling." The "two uneven lines" within "five feet of each other" brought him to a standstill because "the formation had stopped traffic flow on the way to the polls." Seconds later, Ostrach waded through to Nicholson and told him he had to stop the demonstration. Nicholson said nothing in response as he sought to assess the situation and determine what should be done. He then saw Election Administrator Wertheimer at the far end of the dogleg and went over to him.

Wertheimer had come to the dogleg from the direction of the voting area. He stood to one side momentarily and watched what was occurring. He said Hoffa partisans were formed in a gauntlet that he concluded was "clearly inappropriate." He then saw Nicholson coming through the gauntlet and "pulled him out," asking him what he thought of the situation. Nicholson told Wertheimer he thought the activity had to be stopped. Wertheimer concurred.

Wertheimer scanned the room for a sergeant-at-arms; finding none, he looked to no avail for a face he recognized, such as Todd Thompson, Hoffa slate campaign manager. He finally saw Santangelo and approached him, telling him, "Jim, we've got to stop this. This is inappropriate." Wertheimer reports his tone at this point was moderate but loud enough for Santangelo to hear above the crowd. Wertheimer was confident Santangelo would end the demonstration, but he did just the opposite. He said, "We have the right to do this! This is bullshit!"

Surprised at Santangelo's reaction, Wertheimer commenced to break up the gauntlet himself. Speaking loudly enough to be heard, he explained to the crowd that they could campaign but not form a gauntlet. To Wertheimer's view, the multitude began to respond to his statements to disperse the gauntlet, until Todd Thompson entered the scene.

Thompson spurs the crowd. Thompson had arrived from the convention hall around 5:00 and saw supporters passing out literature and voter guides and "lots of people standing around." He walked into Palace 1 and turned moments later to see Wertheimer in the dogleg trying to address the crowd, which was chanting "Santangelo." Thompson walked out of Hoffa headquarters into the dogleg and told Wertheimer, "This is free speech. We can do this. It's just like TDU street theater."

Thompson's free speech reference was to a conversation he had with Wertheimer on Sunday, June 24, following a demonstration by Leedham supporters carried out in front of Hoffa headquarters. The choreographed demonstration sought to satirize Hoffa's performance as lead negotiator on the Northwest Airlines contract. The demonstrators were uniformed flight attendants who, air sickness bags in hand, warned the audience to expect "turbulence" if Hoffa negotiates their contract.

When the flight attendants presented this rehearsed send-up of Hoffa in front of Hoffa headquarters, Thompson complained they had violated the Rules. Wertheimer replied that the demonstration constituted free speech and campaigning permitted by the Rules so long as hall traffic was unimpeded.

Seeing Wertheimer attempt to disperse the Santangelo crowd, Thompson seized on Wertheimer's reaction to the Sunday parody to argue the voter gauntlet was the same thing. He entered the fray and contradicted Wertheimer's directive to disperse, instead telling partisans merely to make the passageway wider. They complied, moving the lines 10 to 12 feet apart. Hoffa supporter Vairma reports that Thompson told Wertheimer, "You said it was no problem with us staging a skit," to which Wertheimer replied, "This isn't a skit. You're intimidating people. You have to disband this."

Thompson ignored Wertheimer's instruction and instead walked the lines, giving the campaigners directions. The videotape records his words to the crowd as follows:

This is a programmed, rehearsed skit, just like TDU and Tom Leedham. Just like we practiced. No joke. Back up. Back up. Just like we practiced this morning. This is our street skit. You can do anything you want. You just have to keep this open. I encourage you to be as vocal as possible.

With this last statement, the tape shows Thompson waving his arms and exhorting the crowd, which responds with a very noisy "TDU sucks" chant.

Wertheimer breaks up the gauntlet. Wertheimer was not satisfied with the gauntlet as modified by Thompson. Although the passageway was wider, the sheer number of very loud people was, to his view, intimidating. He went quickly to the voting area to determine whether the chanting could be heard there. Finding it could be, he directed the voting be stopped. He pulled a sergeant-at-arms from duty in the voting reception area and the two of them returned to the dogleg.

The videotape records the ensuing events. The crowd chants loudly and the wider path Thompson had established moments earlier has eroded. A sergeant-at-arms first comes into view with his arms high in the air attempting to get the attention of the crowd. Wertheimer follows directly, with Thompson at his flank. Wertheimer and the sergeant-at-arms are heard telling the crowd that voting has been stopped because the chanting can be heard in the voting area. They instruct the crowd to disperse, but Thompson once again intervenes to contradict Wertheimer. He tells the crowd the voting has been stopped because of the chanting. However, he urges them to remain in position, telling them he is leaving to discuss the matter with Wertheimer. Thompson then encourages them to maintain their lines and continue campaigning. At this, Wertheimer interrupts, declaring emphatically, "Wrong. Wrong. Wrong. We have stopped the voting. You cannot chant. You cannot stand here like it's a gauntlet. People need to come in to vote. No demonstrations here right now. That's it. Go about your business." Even as Wertheimer finally gets the throng to follow his direction, Thompson complains to him, "But we scripted this. We scripted this." The crowd then begins to disperse. As they do, a voice is heard telling Santangelo, "Hey, Jim, thanks for f***ing getting us in trouble."

The Hoffa witnesses' rendition of these events is at substantial variance with the videotape's depiction. Thompson declared that Wertheimer "screamed for the crowd to leave. He had a tantrum." Thompson also claims Wertheimer told the crowd, "You need to stop this right now. You have to leave. You put the South in jeopardy. If they come in at less than 5%, I will rerun the election."

Santangelo claims Wertheimer - who Santangelo described variously as "screaming," "out of control," his "neck popping veins" - "came in like a bulldog and frightened some girls,"[6] saying, "Stop this immediately. This is illegal. If you don't stop this now, we're going to have a rerun in the South."

Reynoso asserts Wertheimer said, "You can't do this. This is illegal. I'm going to order a rerun in the South."

The other Hoffa supporters who gave statements about the dogleg incident, Cammack and Hall, heard nothing from Wertheimer concerning a rerun of the South regional election.[7]

Shannon, the security guard, said the chanting continued at high volume until an "older gentleman" came in and said, "You can't be doing this. Everyone has a right to vote." Shannon heard nothing about a rerun election.

The videotape is silent as to a threatened rerun of any election, the South region in particular. Wertheimer emphatically denies saying anything about a rerun election to or in the presence of Santangelo or anyone else while in the dogleg.

Nicholson's activities. After Wertheimer and Nicholson initially agreed the gauntlet should be dispersed, Nicholson immediately asked people standing near Cammack to move along while Wertheimer made the same request of Santangelo. Nicholson was "not sure those I spoke to even heard me because the shouting was so loud." He heard someone say, "They're doing the same thing down the hall," which he understood to mean that Leedham partisans also had established a gauntlet. Nicholson made his way through the crowd to the area of hallway where Leedham campaigners were active. There he found "no impairment of crowd flow and no chanting. Instead, there were a few Leedham people quietly passing out literature." Nicholson proceeded to the voting area to see whether the Hoffa supporters' chanting could be heard there. It could. He then went back to the dogleg and found himself walking with Thompson; he told Thompson the chanting could be heard in the voting area. Presently, the sergeant-at-arms and Wertheimer moved into the gauntlet and, after overcoming Thompson's interference, Wertheimer broke it up. Nicholson reports he said nothing else in the hallway.

Thompson contradicts Nicholson. In the protest subsequently filed, Thompson accuses Nicholson of announcing "in front of potential voters that if the election in the South was close he would unilaterally declare the Leedham candidates nominated or he would order a rerun election." When interviewed three hours after filing the protest, Thompson abandoned the allegation that Nicholson threatened to "declare the Leedham candidates nominated." He maintained, however, that Nicholson made the rerun threat in a loud voice directly in front of Palace 1. When questioned closely on this point, Thompson claimed to recall words Nicholson uttered, not sentences. He said Nicholson "mentioned 5%;" he "mentioned South;" he used the phrase "jeopardizing this election" and the word "rerun."

Thompson could not identify any person who was present when he claims Nicholson made these threats. Santangelo asserts merely that "a guy in a suit" (presumably Nicholson, who was wearing a suit and thus stood out from the crowd) yelled, "Knock it off immediately. Get out of here. Do what you're told." Vairma said "somebody in a dark suit followed" Wertheimer, while Cammack recalled only that "somebody was with" Wertheimer, but neither could recall what that person did or said, if anything. Reynoso did not "see anyone with the EA," and Hall did not know whether Wertheimer was accompanied at all.

Nicholson calls Thompson's allegation "utterly false." He states he did not perceive a connection between the Hoffa slate's supposed purpose for the gauntlet and the vote in the South region until a Leedham operative connected the two after the gauntlet was dispersed. Further, Nicholson asserts he would not make the announcements Thompson claimed because it is Wertheimer's role - not his - to determine remedies for Rules violations.

Videotape evidence disputes Thompson's allegation against Nicholson. Nicholson is not shown saying, announcing, yelling or declaring anything. Instead, he is depicted standing passively observing the events previously described.

After the gauntlet was dispersed, Nicholson went to Leedham campaign headquarters to continue the investigation of another protest. There he heard the contention for the first time that the gauntlet was intended to frighten off Leedham slate voters in the South region. Nicholson left briefly and reported this claim to Wertheimer. He returned momentarily and observed Ostrach preparing a convention protest form in longhand. Nicholson asked Ostrach, "Are we getting another protest?" Ostrach replied he was filing one over the hallway incident. A few minutes later, Nicholson reported this fact to Wertheimer, Korney and Thompson. The typed version of Ostrach's protest was filed less than an hour later.

The aftermath. Immediately following the break-up of the gauntlet, Thompson and Wertheimer walked the 75 yards back to the Election Administrator offices in the Platinum ballroom. All witnesses, Thompson included, agree Thompson was very upset. Gwen Randall, Election Administrator representative, was staffing the reception desk immediately inside the double doors of the waiting area. She heard Wertheimer and Thompson before they entered. According to Randall, Wertheimer said, "Calm down. Come into the office." Thompson entered the waiting area immediately while Wertheimer stopped short of the doors to speak for a few seconds with Nicholson.

Nicholson told Wertheimer he had heard from Leedham slate representatives that the gauntlet "was an attempt to scare people away from the polls" because the Hoffa slate knew the race in the South region would be close. Wertheimer told Nicholson that "if the conduct did interfere with the election, he would either do a rerun or declare the Leedham slate candidates in the South nominated." Wertheimer then followed Thompson into the EA waiting area; Nicholson returned to the Leedham slate headquarters to continue an investigation of another protest.

When Wertheimer caught up with Thompson the latter was, according to Randall, "very angry, shouting and swearing." Thompson accused Wertheimer of "jamming" him, arguing that Wertheimer had told him they "could campaign anywhere outside the polling area." Thompson also accused Wertheimer of "jamming" him concerning the "truck."[8]  Thompson was, according to Randall, "very agitated, and refused to be calmed down" by Wertheimer, who told him several times, "That wasn't the deal. You can't intimidate people and you can't campaign right outside the balloting area."

A few minutes later, Hoffa slate lawyer Korney arrived for a previously scheduled 5:30 p.m. meeting on another issue. About a minute after that, Nicholson joined the group. Wertheimer, Randall and Nicholson report that Nicholson listened to the conversation for a short time before saying, "You're going to get a protest from the Leedham slate over this." Wertheimer responded by telling Thompson and Korney that if the conduct affected the election results in the South he would not hesitate to rerun that election or perhaps declare the Leedham slate candidates from that region nominated.

The Leedham slate protest. Stefan Ostrach filed a protest for the Leedham slate at 6:15 p.m. on June 27, about an hour after the gauntlet dispersed but nearly two hours before polls closed. Characterizing the incident as "organized intimidation of voters," Ostrach alleged as follows:

The voting for nominations for the Regional Vice Presidents has been seriously tainted. This gauntlet of intimidation lasted for at least 30 minutes and likely had the desired effect of reducing the number of Leedham Slate votes for the Regional Offices.

The Hoffa Slate has conducted an organized campaign to intimidate and/or offer favors to targeted Southern Region delegates in an effort to reduce Leedham Slate votes in an attempt to make it impossible for the Leedham Slate to be nominated in the South.

We ask that the Leedham Slate Regional Candidates to [sic] be declared nominated, or in the alternative, that the nomination vote for regional candidates be reconducted after a proper remedy has been effected to correct the impact of the organized voter intimidation.

The Hoffa slate protest. Thompson for the Hoffa slate responded with a protest filed at 7:30 p.m. that same evening against Wertheimer and Nicholson "for their conduct during the voting." The protest made the following allegations:

EA Wertheimer made remarks in front of delegates who had not voted that had the potential to influence their votes and showed bias against the Hoffa Unity Slate with his comments.

General Counsel Nicholson solicited a protest from the Leedham Slate and further announced in front of potential voters that if the election in the South was close he would unilaterally declare the Leedham candidates nominated or he would order a rerun election.

What is most disturbing about this conduct is that Messrs. Wertheimer and Nicholson's comments give the appearance that they are "counting votes" and participating in electoral strategy for the Leedham Slate.

By singling out the potential impact of the alleged violation on the Southern Region but not other regions who were voting simultaneously, Messrs. Wertheimer and Nicholson have shown that they are more concerned with the political fortunes of the Leedham Slate rather than legitimate violations of the Rules.

We hereby request that both Mr. Wertheimer and Mr. Nicholson recuse themselves from any decision on the regional candidate nominations pending a full investigation of their conduct on Wednesday evening.

The results of regional Vice President balloting. Balloting was conducted for Vice President nominees in Canada, the Central, South and West regions on June 27.[9]   With 5% of the ballots cast in each region as the minimum necessary to achieve placement on the rank-and-file ballot, all nominees from both slates achieved that minimum vote except one. In Canada, the Central and West regions, all candidates surpassed the minimum threshold by at least a dozen votes.

In the South, 117 votes were cast, and a candidate was required to garner 6 votes in order to be nominated. The Hoffa slate's Tyson Johnson and Ken Wood far exceeded this number with 110 and 99 votes, respectively. Leedham slate candidate Willie Hardy polled one vote more than the minimum; the other Leedham candidate, Randy Brown, tallied 3 votes.

One delegate from the South region did not vote.

The Hoffa slate immediately requested a manual recount of the South region votes. The recount request was granted and was carried out the next day. The hand-counted results were identical to the machine tally.

On Thursday, June 28, Wertheimer convened a meeting of the two slates and the IBT to discuss measures he would impose to prevent voter interference during that evening's balloting on the nominations for General President and General Secretary-Treasurer. Wertheimer requested and the IBT granted a phalanx of sergeants-at-arms to line the hallway leading to the voting area. Campaigning was permitted but gauntlets and massed partisans were not. The show of force by sergeants-at-arms had the intended effect and the voting that evening occurred without incident.

The requested remedies. When it was filed before polls closed, the Leedham slate protest sought a declaration that its candidates in the South region are nominated in the event they failed to achieve the 5% threshold at the ballot box. In the alternative, the slate sought a rerun of the South region's election.

When the tally showed Brown fell three votes short of the 5% with only one delegate not voting, the Leedham slate withdrew its requested remedy and sought instead the posting of a union-wide notice concerning voter intimidation and interference.

The Hoffa slate initially requested a rerun of the South election as well. Its argument for this remedy was two-fold. First, it claimed Wertheimer and Nicholson had prejudiced the election's outcome by the statements attributed to them in the dogleg. Second, Thompson claimed that when Wertheimer broke up the gauntlet the Hoffa slate was left with no one leafleting in the hallway for at least 15 minutes; Thompson claimed the potential effect of this lack of campaigning was that Willie Hardy got votes he otherwise would not have gotten.

Thompson was not a witness to the alleged lack of campaigners after the gauntlet was dispersed. Cammack reports leafleting continued immediately after the gauntlet ended. Vairma confirms this point, as does security guard Shannon.

Two days after filing the protest, the Hoffa slate dropped its request for a rerun of the South election and requested instead an order that Wertheimer and Nicholson cease and desist from engaging in biased behavior and prejudicing election outcomes.

Analysis

At this stage of the democratic movement within the IBT, it should hardly be a controversial notion that voters must be permitted the unimpeded and uncoerced opportunity to exercise their suffrage.

However, the Hoffa slate has, by its vigorous litigation of these protests, contested this fundamental democratic idea. With its remarkable position statement submitted in these cases, the IBT has effectively signed on to the Hoffa slate's principal argument.

I find the hallway gauntlet had the foreseeable effect of interfering with and intimidating voters seeking access to the polling place. Because of the Hoffa slate's failure to exercise any moderation over its forces, I find the chants could be heard inside the voting area and therefore breached the no-campaign rule for that area. I further find the gauntlet and chanting were activities planned by Santangelo and vigorously encouraged by Thompson.

I reject the Hoffa slate's argument that the intimidating behavior it fomented in the hallway near the voting area was permitted under the Rules. I similarly reject the argument that Wertheimer violated the Rules or otherwise acted inappropriately by dispersing the throng. I further find that the charges of bias and impropriety Thompson has leveled against Nicholson have utterly no basis in fact and are false. Accordingly, I GRANT the Leedham slate's protest and DENY the Hoffa slate's protest. The rationale supporting my decision follows.

The Leedham slate protest. Article VII, Section 1(g) of the Rules bars "[r]etaliation or threat of retaliation by … any member of the IBT, … or other person … against a Union member … for exercising any right guaranteed by this or any other Article of the Rules."

Article IV, Section 2[10] states in relevant part:

No person … shall limit or interfere with the right of each IBT member to independently determine how to cast his/her vote and to cast and mail the ballot himself/herself.

U.S. Department of Labor regulations concerning conduct of internal union elections include the following warning:

Interference or reprisal.

Title IV expressly provides for the right of a member to vote for and otherwise support the candidates of his choice without being subject to penalty, discipline, or improper interference or reprisal of any kind by the labor organization conducting the election or any officer or member thereof.

29 CFR 452.105.

The gauntlet the Hoffa slate established in the dogleg area adjacent to Hoffa campaign headquarters violated these Rules and DOL provisions. The clot of bodies and the thunderous chanting had the foreseeable effect of creating an intimidating environment through which opposition voters were obliged to pass if they sought to exercise their franchise.

For delegates wearing the colors of and intending to vote for Hoffa slate candidates, and for those manning the skirmish lines in the gauntlet, the demonstration may well have been an inspiring and empowering experience. I cannot find, however, that it was the "light" or "joyful" event described by various witnesses presented by the Hoffa slate. Instead, the intense volume of the chants, the sheer numbers of partisans present, and the fact they were intentionally organized as a gauntlet all compel the conclusion that interference with if not intimidation of opposition voters was the foreseeable effect of the activity.

In reaching this conclusion, I credit the description of the activity presented by Leedham slate witnesses, Wertheimer, Nicholson, and security guard Shannon. Their statements are consistent with and corroborated by the videotape record of the event.

The version of the event the Hoffa slate witnesses presented is disputed in several important respects by the videotape. In particular, the universal denial by Hoffa witnesses that the crowd chanted "TDU sucks" is utterly discredited by the videotape. The tape further shows that Thompson's contention lacks merit that the lines of the gauntlet remained at a fixed separation after his initial intervention.

The "TDU sucks" chant plays an important role in my finding that the scene had the foreseeable effect of intimidation. In giving his statement, Thompson downplayed the significance of the chant, saying it did not even constitute campaigning. This remarkable statement is undercut by the fact that the Hoffa slate has produced and distributed thousands of buttons bearing the phrase, and it was unusual to see a Hoffa supporter at the convention who did not sport such a badge. Further, the phrase has a derogatory connotation which, at the volume at which it was chanted, is foreseeably threatening to those who do not support the Hoffa slate.

Thompson's argument that the gauntlet constituted permissible free speech cannot be credited. His contention conflates the flight attendant demonstration, which was carried out by a dozen individuals and did not disrupt hall traffic or occur in conjunction with balloting, with the massed activity that impeded the progress of voters toward the polls.

Of course, the Rules protect the right of free expression that is subsumed within the right to campaign. Convention delegates who espouse opposing but fervently held positions about candidates must be permitted free rein to express their views without censorship by the union or undue limitation by the election monitor. Indeed, the precedents under these Rules that refuse to punish false campaign rhetoric or interfere with the "heated words" that occasionally accompany union politics have special relevance at a convention where candidates are formally nominated for office.

The Rules and DOL regulations, however, give special cautionary attention to the rights of voters to exercise their suffrage, and substantial effort must be made to harmonize voters' protections with campaigners' rights of expression. Hence, while leafleting was permitted in the approaches to the voting area, the Election Administrator, and the Election Officer before him, prohibited campaigning inside the polling place. In particular, delegates were obliged to shed their partisan vests, buttons, pins, and necklaces, and pocket their campaign leaflets when entering the polling place in order to maintain the voting area as a campaign-free zone. For the same reason that visual campaign devices were barred, so too was the sound of campaign activity, such as chanting from the hallway.

Moreover, campaign activity cannot be permitted to interfere with or intimidate those seeking to exercise their right to vote. Candidates and their political organizations must refrain from massed demonstrations of the type that occurred here. When they do not, the Election Administrator has the duty to insure that voters are permitted free access to the polls.

Indeed, Article I of the Rules grants to the Election Administrator "the authority to supervise all phases of the International Union delegate and officer election, including, where necessary, the authority to conduct, overturn or rerun any phase of that election." Further, the Election Administrator "has the authority to take all necessary actions, consistent with these Rules, to ensure fair, honest, open and informed elections."

The Rules are thus clear that, while the Election Administrator has a substantial adjudicatory function (see Article XIII), he also has a supervisory function to insure fair and open elections. For this reason, where the gauntlet interfered with voters' access to the polls and the chanting of the massed demonstrators could be heard inside the voting area, Wertheimer not only had the authority to disperse the gauntlet, he had the duty to do so.

This point is not at all controversial. Indeed, John Murphy, East region Vice President, Hoffa slate member, and a principal architect of the Hoffa campaign, acknowledged candidly that "planned incidents near polling places will get you in trouble."

That no less a partisan than Murphy would acknowledge this fact renders the IBT's position in this matter even more extraordinary. It must be remembered that, just the day before Santangelo and his supporters, with the animated encouragement of Thompson, set up the gauntlet, the convention adopted the much-heralded "democracy package," which placed the principle of "one Teamster - one vote" in the IBT Constitution. Juxtaposed to that important accomplishment, the IBT declared a day later that "demonstrations in the hall leading to the polling area, by either slate, would be protected by the Rules … as long as they are not accompanied by actual threats or violence."[11]   This position would, unfortunately, permit the very type of intimidating environment witnessed in the hallway near the voting area on June 27, where no "actual threats" were uttered and no "violence" occurred. Such a position is inconsistent with the Rules, the DOL pronouncements on the subject, and the fundamental notion of a free suffrage.

For all these reasons, I find the gauntlet the Hoffa slate established violated the Rules and that Wertheimer was obligated by his supervisory mandate under Article I to disperse it. His prompt action, taken some 15 minutes into the 3 hour period the polls were open, served substantially to eliminate the possibility that the election's outcome might be affected by the violation.

The Hoffa slate protest. Although not stated expressly, Thompson's protest against Wertheimer and Nicholson is premised on the last sentence of Article I, which reads:

The Election Administrator … and [his] … representatives, shall at all times discharge their duties and responsibilities faithfully and impartially.

In denying this protest, I find no credible evidence to support the allegation leveled against Wertheimer or either allegation made against Nicholson. The rationale for this holding follows.

Thompson claimed "Wertheimer made remarks in front of delegates who had not voted that had the potential to influence their votes and showed bias against the Hoffa Unity Slate with his comments." The only activity Thompson cites to support this contention is that Wertheimer dispersed the gauntlet. As set forth above, Wertheimer was obliged to disperse the gauntlet in order to insure a fair and free election. Thompson interfered with Wertheimer's effort twice, in the process inciting the crowd to ever louder chanting. Under these circumstances, it strains logic for Thompson to suggest that Wertheimer displayed bias by his act of correcting a Rules violation. Indeed, the Rules expressly reject such a notion, at Article XIII, Section 1, to wit:

No protest of any person or entity shall be considered if such person or entity, or anyone acting under their direction or control or on their behalf, caused or significantly contributed to the situation giving rise to such protest.

Some Hoffa slate witnesses state that Wertheimer, while attempting to disperse the crowd, threatened loudly to rerun the South region election. I do not credit these witnesses for two principal reasons. First, videotape discredits such statements. Second, I find Wertheimer was unaware - nor is it readily apparent even to an interested observer - that a gauntlet in support of a West region candidate would have the purpose of persuading South region delegates to avoid the polls. I credit Wertheimer's assertion that he did not conceive of the connection between the gauntlet and the South region until Nicholson relayed to him the Leedham slate's concern in that regard after the gauntlet was dispersed.

Thompson's allegations against Nicholson are without any factual foundation. First, Thompson backtracked substantially in his claim against Nicholson a mere 3 hours after filing the protest when he recanted the allegation that Nicholson announced in front of Palace 1 that he would "unilaterally declare the Leedham candidates nominated." Second, videotape contradicts Thompson's contention that Nicholson announced the South region contest would be rerun. Third, as noted above, the connection between the gauntlet, established for a West candidate, and the South region contest was not apparent to Nicholson until after the gauntlet was dispersed. Fourth, Nicholson is not a decision-maker on remedial issues of the nature at issue here, and I find he would not have made such an announcement in the setting alleged. Finally, Thompson proved himself completely lacking in credibility by his inability to recount any type of sentence structure he attributes to Nicholson. The great weight of these defects in Thompson's allegation against Nicholson, coupled with Nicholson's emphatic and credible denial of the charge, compel me to conclude the accusation is false.

Thompson's second claim is that Nicholson solicited the Leedham slate protest. I find this allegation untrue as well. Thompson's only evidence is that Nicholson informed Wertheimer, Korney and Thompson that the Leedham slate intended to lodge a protest over the hallway incident. Investigation established convincingly that Ostrach was already preparing the protest when he informed Nicholson it would be filed. I note further that Ostrach has not displayed any reluctance to file protests thus far in this election cycle, and an incident as egregious as the one recounted here was certain to draw one from the Leedham campaign. Accordingly, I credit Nicholson's denial of this allegation.

Remedy

When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interference with the election process.

The following remedy is ordered:

By Friday, July 27, 2001, the Hoffa slate is directed to mail to all convention delegates, alternate delegates, and registered guests the notice attached to this decision. The slate is further directed to cease and desist from any actions that have the purpose, object or foreseeable effect of intimidating voters in the free exercise of their franchise.

I reject the Leedham slate's request for a union-wide posting and instead limit the distribution of the remedial notice to those in attendance at the event where the violation occurred. To the extent that news of the Hoffa slate's voter intimidation has spread beyond those present, news of the finding of a Rules violation and the remedy imposed therefor will also disseminate.

A decision of the Election Administrator takes immediate effect unless stayed.

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, 727 15^th Street NW, Tenth Floor, Washington, DC 20005 (fax: 202-454-1501), all within the time prescribed above. A copy of the protest must accompany the request for hearing.

___________________________________

Jeffrey Ellison

Election Administrator designee

cc: Kenneth Conboy

2001 EAD 410

NOTICE TO MEMBERS OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS WHO ATTENDED THE IBT CONVENTION

Under the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"), no person or entity may interfere with or intimidate a member seeking to exercise a right protected by the Rules, including the right to vote.

The Election Administrator will not permit such interference or intimidation.

Investigation has determined that the Hoffa Unity slate and its supporters engaged in activity that had the foreseeable effect of interfering with or intimidating delegates proceeding to the polls for the purpose of voting. In particular, investigation shows the Hoffa slate established a gauntlet at the Convention on June 27, 2001, through which voters had to pass in order to vote.

To remedy this violation, the Hoffa Unity slate has been ordered to cease and desist from voter interference and intimidation.

The Hoffa Unity slate has also been ordered to mail this notice to all delegates, alternate delegates, and registered guests who attended the IBT convention held June 25 through 29, 2001, in Las Vegas, Nevada.

___________________________ _____________________________

James Santangelo Todd Thompson

IBT Vice President Campaign Manager

West Region Hoffa Unity Slate

DISTRIBUTION LIST VIA 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 Road

Suite 1551

Bingham Farms, MI 48025

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

Tom Leedham c/o Stefan Ostrach

110 Mayfair

Eugene, OR 97404

Jim Santangelo

9960 Baldwin Place

El Monte, CA 91731

Todd Thompson

Hoffa Unity Slate

209 Pennsylvania Avenue, SE

Washington, DC 20003

 

William Wertheimer, Jr.

727 Fifteenth Street, NW

10^th floor

Washington, DC 20005

Michael Nicholson

122 S. Main, Suite 210

Ann Arbor, MI 48104

Andrew Schilling

Assistant United States Attorney

100 Church Street

19^th floor

New York, NY 10007