IN RE: TOM GILMARTIN,
Protest Decision 2001 EAD 443
Issued: September 6, 2001
OEA Case No. PR082311NA
Tom Gilmartin, a member of Local 559 and candidate for International General Secretary-Treasurer on 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"). It alleges that the IBT, General President James P. Hoffa and General Secretary-Treasurer Tom Keegel have used union resources in support of the election of themselves and other members of the Hoffa Unity slate ("Hoffa slate"), in violation of Article XI, Section 1(b)(6) of the Rules.
Election Administrator representative Michael Nicholson investigated the protest.
Findings of Fact
On August 6, 2001, Gilmartin wrote to International officers Hoffa and Keegel asking that they provide him with the most recent financial information available on the IBT's finances so that he and his fellow slate members could review it and incorporate any conclusions in the last battle page issue of the IBT magazine and/or in the upcoming presidential debate.[1] His letter states that the Officers' Report distributed at the IBT convention in June 2001 "did not include a copy of the audit required for the twelve months ending December 31, 2000 …" and claims that "[t]he twelve month audit report is needed to put the published five year report in perspective…" The letter further claims that Hoffa and Keegel, in their roles as International officers and as candidates, "have made statements taking great pride that [they] have 'stopped the hemorrhaging' or put 'our financial house in order…,'" and then takes issue with such statements. The letter claims that its author's views would be validated by the financial information sought in the letter. The letter further seeks release of "a copy of the operating results for the six-month period ended June 30, 2001, as well as a copy of the regularly conducted six month audit for that period." The letter, as well as Gilmartin's position statement on the protest, claims that the failure to release this information will "have a very partisan effect…" Receiving no response, Gilmartin filed his protest on August 23, 2001.
The IBT responded to Gilmartin's August 6 correspondence on August 28, 2001. This letter, by General Secretary-Treasurer Keegel, notes that the IBT has informed the Department of Labor that the IBT may filed an amended LM-2 report with additional affiliate information, and that the amended report will be available to Gilmartin and all IBT members, as required by law. The letter also addresses various questions previously posed by Gilmartin. The letter further states that the fiscal year 2000 audit "will be printed in the October issue of The Teamster." And, the letter advises that the audit for the six-month period ending June 30, 2001 is not complete and that "the independent auditors have only recently begun to compile the materials necessary to furnish that report."
During the investigation, we asked Gilmartin to provide any evidence of actual use by Hoffa slate incumbents of IBT financial information unavailable to members. In response, counsel for Gilmartin noted that the Hoffa slate incumbents will have had access to the fiscal 2000 audit for some time prior to its release in the October 2001 Teamster. Further, the protestor notes that he has not received "the information prepared for the incumbent GEB members for the first or second quarter of 2001…," information that would be available prior to the completion of the first half 2001 audit.
Nevertheless, while Gilmartin notes that the incumbent officers have received financial information not yet reported to the membership, including information in preliminary and unaudited form, he has failed to provide evidence that this information has been used by Hoffa slate candidates for political or campaign purposes.
Instead, Gilmartin argues that "the incumbent officers have effectively used the information available to them by the very act of not disclosing it." Thus, says Gilmartin, if the incumbents, "after reviewing the information … found any of the financial reports to be favorable to their campaign, they had the opportunity in their official duties to publicize those favorable results by publishing the results in the [Teamster] or on the [IBT] web page, forwarding copies to all locals, issuing a press release or referring to the results in speeches." But stating that the incumbents have not done so, Gilmartin claims that this means that "they have looked at the [so far undisclosed financial] results and found that there is nothing there that is helpful to their campaign."
According to Gilmartin, the incumbent IBT officers have thus violated the Article XI prohibition against use of union resources to support their campaigns by deliberately choosing not to release financial information that would be detrimental to them as candidates. As he argues, "[i]f the information had been favorable, and the incumbents taken the opposite approach and released the information in a campaign ad before releasing through official channels, it would be a clear election rule violation by abusing their access to the information. The decision not to release that information (or to delay the release so that dissemination to the members is severely reduced) is no less a violation since they are making a decision on how to use union resources based on the benefit or harm it has to their re-election campaign."
Analysis
We DENY the protest. The protestor does not claim that any IBT officer has used non-disclosed IBT financial information for campaign-based reasons. In fact, the protestor argues just the opposite, viz, that the incumbents have chosen to withhold certain preliminary and other financial information from disclosure in order to shield their campaigns from the bad news that the protestor believes this data will proclaim.
The protestor offers no evidence in support of this claim. Nor does the protestor point to any affirmative duty of the officers to release the disputed information at this time. Moreover, our examination of the campaign materials of the opposing slates reveals an ongoing and healthy debate concerning the financial state of the IBT, based on the data available to both campaigns. In the absence of any evidence of misconduct by IBT incumbent officers concerning the release or non-release of financial information, we are not prepared to conclude that non-incumbent candidates must have access to IBT financial information, including preliminary data, at the same time as it is available to incumbents. Incumbents will always have prior access to such data by virtue of their role as such. That non-incumbents receive such information only at a later date does not in itself constitute improper incumbent use of union resources for campaign purposes.
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 15th Street NW, Tenth Floor, Washington, DC 20005 (facsimile: 202-454-1501), all within the time 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
2001 EAD 443
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Patrick Szymanski
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[1] Gilmartin had made requests earlier in 2001 for IBT financial information. The IBT responded, inter alia, on May 23, 2001, providing Gilmartin with copies of the IBT's LM-2 reports for the 1998, 1999 and 2000 fiscal years.