ELECTION APPEALS MASTER
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IN RE: MATT TAIBI,
2015-2016 EAM 33 (KAR) (ESD 306) PROTESTOR
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Protest Decision 2016 ESD 306 (ESD 280) was issued on October 17, 2016 (OES Case No. P-375-100616-NE). ESD 306 addressed a protest by Matt Taibi, principal officer of Local Union 251 and candidate for IBT Regional Vice-President on the Teamsters United slate. Mr. Taibi alleged that Joe Bairos, the head of the competing “251 Strong” slate, impermissibly used a membership list provided to Mr. Bairos by the Hoffa-Hall 2016 slate for Local Union 251’s delegates and alternate delegates election in order to solicit support for Barrios and the members of his slate in the local union officers election.
Decision of the Election Supervisor
Under the Article VII, Section 3(a) of the Rules, so-called “accredited” candidates for International office and, in addition, such candidates who have been nominated at the IBT convention to the member referendum ballot for International office are entitled to request and receive a copy of the IBT membership list. Pursuant to Section 3(a), the Election Supervisor released the entire IBT membership list, including Local Union 251’s membership list, to the Hoffa-Hall 2016 slate. The IBT membership list included each member’s first and last name, mailing address, local union number, and employer name, sorted by local union number but sortable by any of those fields. The list did not include members’ phone numbers.
Section 3(a) provides that:
No membership list may be used for any purpose other than advancing the accredited or nominated candidate’s campaign for nomination and/or election. Use of a membership list in support of the election of delegate and/or alternate delegate candidates shall not constitute misuse of the list, provided that the list is used solely to advance the accredited or nominated candidate’s campaign for nomination and/or election. In order to obtain a copy of the membership list, the accredited or nominated candidate must submit to the Election Supervisor an affidavit in a form approved by the Election Supervisor attesting that he/she will not use or permit use of the membership list for any purpose other than advancing that candidate’s campaign for nomination and/or election and that he/she will not provide the list to nor permit inspection or copying of the list by any third parties.
The Rules define “candidate” as “any member who is actively seeking nomination or election for any Convention delegate or alternate delegate position or international Officer position.” Rules, Definition 6. The definition does not encompass candidates for local union office.
The 251 Strong slate in the delegates and alternate delegates election was allied with the Hoffa-Hall 2016 slate of candidates for International office. Investigation showed that the Hoffa-Hall 2016 slate engaged a third-party vendor, TargetSmart Communications, LLC, to perform a “phone match” of the Local Union 251 portion of the IBT membership list, by which phone numbers of members could be obtained. This task was completed on February 12, 2016, and Hoffa-Hall 2016 transferred the Local Union 251 membership list, with phone numbers, to the Bairos slate on February 18, 2016. The Bairos slate used the membership list to campaign in the delegates and alternate delegates election, with the aim of winning that election and supporting the effort of the Hoffa-Hall 2016 slate candidates to gain nomination and election to International office. Ballots were mailed in Local Union 251’s delegates and alternate delegates election on February 22, 2016 and counted on March 19, 2016. All candidates on the Taibi slate were elected; all candidates on the Bairos slate were defeated.
Hoffa-Hall 2016 achieved convention nomination of 27 candidates for International office; as a result, the Election Supervisor issued an updated IBT membership list to the slate on August 22, 2016, subject to the same Rules provision regarding use of the list “solely to advance the accredited or nominated candidate’s campaign for nomination and/or election.”
Hoffa-Hall 2016’s vendor performed a phone match for the Local Union 251 segment of the updated IBT membership, just as it had on the first such list. On September 28, 2016, Hoffa-Hall 2016 transferred the list, including phone numbers, to the 251 Strong slate running in the Local Union 251 officers election.[1] Thereafter, the 251 Strong slate conducted a live phone-bank operation, calling the members whose names appeared on the list.[2] The callers used a script that advocated exclusively for the election of the 251 Strong slate to local union office. No advocacy was presented for Hoffa-Hall 2016. The script read as follows:
Hi, I represent the 251 Strong slate. I’m calling to let you know ballots have recently been mailed to elect new leadership for Local 251. The 251 Strong slate is asking for your vote, and the Right Team is on the right side of your ballot. Thank you for your support. Please remember to vote 251 Strong.
The Election Supervisor found that Hoffa-Hall 2016 was aware that the 251 Strong slate intended to use the Local Union 251 membership list that it sent the slate in September 2016 to phone-bank for the local union officers election, and that providing the list constituted a violation of the Rules, noting that the restrictive language of Article VII, Section 3(a) “was adopted precisely to prevent use of the lists for any other purpose, including campaigns for local union office. Enhancing that list with telephone numbers and distributing it for use in an election other than for International Union Convention Delegate or International Officer is exactly the sort of misuse that the Rules prohibit.”
With respect to remedy, the Election Supervisor ordered the 251 Strong slate, Mr. Bairos, all other candidates on his slate for local union office, and all supporters of his candidacy or that of his slate to cease and desist immediately from using any list of members of Local Union 251 that traces its origin to any list Hoffa-Hall 2016 provided to assist in the campaign for local union office or for any purpose other than advancing the candidacy of candidates on the Hoffa-Hall 2016 slate for election to International office. The Election Supervisor further ordered Mr. Bairos, no later than Wednesday, October 19, 2016, to take custody of all copies of said list(s) that are in printed form and surrender them to Hoffa-Hall 2016. In addition, the Election Supervisor ordered Mr. Bairos, no later than Wednesday, October 19, 2016, to delete the list from any and all electronic media or storage facilities under the custody or control of himself, any other candidates on his slate for local union office, and all supporters of his candidacy or that of his slate. Finally, “in recognition of the value the list provided to the 251 Strong slate’s Local Union officer campaign,” the Election Supervisor further ordered the 251 Strong slate to pay a remedial fine of $3,000 to OES, no later than Wednesday, October 19, 2016,[3] and that Mr. Bairos submit a declaration of compliance with the imposed remedy, made under penalty of perjury, to OES no later than Thursday, October 20, 2016.
The Election Supervisor ordered Hoffa-Hall 2016 to cease and desist immediately from using or permitting use of any membership list it obtained pursuant to Article VII, Section 3 of the Rules for any purpose other than pursuing election of members of its slate to International office, even if it has enhanced the list through the services of a vendor or otherwise. The Election Supervisor ordered Hoffa-Hall 2016, no later than Wednesday, October 19, 2016, to recover all printed copies of the list from the 251 Strong slate, Mr. Bairos, all other candidates on Mr. Bairos’s slate for local union office, and all supporters of Mr. Bairos’s candidacy or that of his slate members that Hoffa-Hall 2016 can reasonably determine to be in possession of such a list. The Election Supervisor further ordered Hoffa-Hall 2016 to identify to OES, no later than Wednesday, October 19, 2016, any other person, candidate, or slate of candidates for local union office to whom Hoffa-Hall 2016 has transferred any list it obtained pursuant to Article VII, Section 3 of the Rules where it knows or has reason to believe the list was, will, or may be used for a purpose not permitted by that provision. The Election Supervisor ordered Hoffa-Hall 2016 to pay a remedial fine of $6,000 to OES, no later than Wednesday, October 19, 2016, noting that “the 251 Strong slate is comprised of announced supporters of Hoffa-Hall 2016, and it is plain that the Hoffa-Hall 2016 slate provided this International Union membership list to support its friends in their local union election contest. The list cannot be used for that purpose, however, and there is no item to which it can be readily compared to determine the value of the benefit.” The fine imposed by the Election Supervisor was “a liquidated sum, twice that of the estimated value received directly by the 251 Strong slate, to reflect both the value of this unique resource and the Hoffa-Hall 2016 campaign’s misuse of it. Hoffa-Hall 2016 shall submit its declaration of compliance with this remedy, made under penalty of perjury, to OES no later than Thursday, October 20, 2016.”
The Election Supervisor noted that “the unlawful use by the 251 Strong slate of the membership list it obtained from Hoffa-Hall 2016 may affect the outcome of the Local Union 251 officers election. We have no jurisdiction over that election. However, we have jurisdiction over violations of the Rules, and we have found a violation here. In the event any candidate or slate that is opposing the 251 Strong slate presents any allegation that the results of the local union officers elected were affected by the unlawful use of the IBT membership list by or on behalf of the 251 Strong slate and prevails on that allegation (whether in the Union’s internal remedial system or under Title IV of the LMRDA), we order Hoffa-Hall 2016 to pay the actual attorneys’ fees and costs of the candidate or slate presenting that allegation, up to the sum of $40,000.00.[4] We order Hoffa-Hall 2016, no later than Wednesday, October 19, 2016, to establish an escrow bank account in this amount, fund it with verified funds, and provide OES with the name and address of the financial institution where the account is established, and the number of the account. Hoffa-Hall 2016 shall submit its declaration of compliance with this remedy, made under penalty of perjury, to OES no later than Thursday, October 20, 2016. Any request for disbursement of funds from that account shall be made to OES, which shall make the final determination on whether the condition for release from escrow is satisfied. If no candidate on the 251 Strong slate is elected in the Local Union 251 officers election, or there is no post-election challenge to the result, we will dissolve this aspect of the remedial order.”
Finally, the Election Supervisor ordered Local Union 251 to post the notice attached to his decision on all worksite bulletin boards under its jurisdiction as well as on its website and Facebook page, if any. “The posting shall remain through and including November 15, 2016 and shall not be defaced or covered up. The postings made on electronic media shall be done so that the hyperlinks are active. The postings shall be completed no later than Wednesday, October 19, 2016. Local Union 251 shall submit its declaration of compliance, made under penalty of perjury, no later than Thursday, October 20, 2016.”
Appeal of ESD 306
The Hoffa Campaign filed an appeal of ESD 306 on October 18, 2016, including a request for stay of remedy pending appeal. The request for a stay was ultimately resolved by agreement between the Hoffa Campaign and the Election Supervisor. A telephonic hearing on the appeal took place on October 25, 2016, attended by Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor; Peter Marks (Office of the Election Supervisor); David J. Hoffa, Esq., on behalf of the Hoffa-Hall 2016 Slate; Julian J. Gonzalez, Esq., on behalf of Matt Taibi and the Fred Zuckerman Teamsters United Slate; and Bradley Raymond, Esq., on behalf of the International Brotherhood of Teamsters. Prior to the hearing, the Election Appeals Master received submissions from the Election Supervisor, Mr. Hoffa, and Mr. Gonzalez.
In its appeal and at the hearing on October 25, the Hoffa Campaign challenged the Election Supervisor’s finding of a violation of the Rules and the remedy imposed.
On October 30, prior to the issuance of a decision by the Election Appeals Master, the Election Supervisor reported that:
Votes were tallied in the Local Union 251 officers election last evening. All candidates on the United Action slate headed by incumbent principal officer Matt Taibi were elected. No candidate on the 251 Strong slate headed by Joe Bairos, the slate that was the subject of the protest decided in ESD 306, was elected. Procedure governing post-election protests to local union officers elections is laid out in Article XXII, Section 5(b) of the IBT constitution. Under that procedure, any member may file a protest “concerning the conduct of the election” but must do so within 72 hours.
On November 4, the Hoffa Campaign withdrew its appeal, stating, “[a]s you know, the 251 Strong candidates did not win in the Local 251 election and the 72hr time period for protests over the result has expired, therefore, per the decision the $40,000 escrow scheme dissolves on its own.”
On November 9, 2016, prior to the issuance of an order regarding the withdrawal of the appeal, the Election Supervisor reported:
I am writing to alert you that a post-election protest in the Local Union 251 officers election was apparently timely filed with Joint Council 10 per the procedure laid out in the IBT constitution. The protest challenged alleged electoral misconduct that it contended affected the results of the election. The protest was filed by the third slate competing in the election, the Members United slate and its lead candidate, Jim Croce. Among the allegations the Croce post-election protest made to the joint council is that the phone banking undertaken by the 251 Strong slate using the membership list impermissibly obtained from the Hoffa-Hall 2016 affected the results of the election. Joint Council 10 has acknowledged receipt of the Croce protest and indicated that it will set the matter for hearing at a date to be determined. I received a copy of the protest and the joint council acknowledgment of the protest yesterday afternoon, and I attach them here for your Honor’s consideration.
Under the terms of the Election Supervisor’s decision in ESD 306, the attached protest triggers the funding of an escrow account in the amount of $40,000 by the Hoffa-Hall 2016 slate, a requirement that is stayed pending the current appeal of ESD 306 but which will become effective upon your order acknowledging that the appeal has been withdrawn.
On November 9, 2016, the Hoffa Campaign withdrew its withdrawal of the appeal of ESD 306, and requested that the appeal be reinstated.
Reinstated Appeal
On November 14, 2016, the Election Appeals Master reinstated the appeal of ESD 306, as applied by the Election Supervisor on November 9. A further telephonic hearing was held on November 22, attended by Mr. Ellison, Mr. Hoffa, and Mr. Gonzalez.
At the hearing on the Reinstated Appeal, the Hoffa Campaign confirmed that the Reinstated Appeal pertains solely to the escrow remedy, as applied by the Election Supervisor to the Croce post-election challenge.
Decision on Reinstated Appeal
The Hoffa Campaign reasserts its contention on appeal that the Election Supervisor abused his discretion in imposing the escrow remedy, and further argues that, in any event, the escrow remedy should not be applied to Mr. Croce. The Hoffa Campaign also asserts that the amount of the escrow is arbitrary and excessive.
Article XIII, Section 4 of the Rules provides:
If as a result of any protest filed or any investigation undertaken by the Election Supervisor with or without a protest, the Election Supervisor determines that the Rules have been violated or that any other conduct has occurred which may prevent or has prevented a fair, honest, open and informed election, the Election Supervisor may take whatever remedial action is appropriate.
The Hoffa Campaign asserts that the Election Supervisor lacked authority to impose the escrow remedy because it does not relate to any IBT election. As noted above, the Election Supervisor acknowledges that he does not have jurisdiction over local union elections. The Election Supervisor does, however have broad jurisdiction to remedy violations of the Rules. To the extent a violation of the Rules may affect the outcome of a local union election, the remedy may, of necessity, pertain to the affected local election. That includes appropriate remedial compensation to a union member who may suffer financial harm as a result of the violation. The escrow remedy does not put the Election Supervisor in the position of supervising the local election or adjudicating Mr. Croce’s charge. Rather, the escrow remedy is narrowly tailored to afford compensation to Mr. Croce if he is ultimately successful in establishing his right to attorneys’ fees as a result of the violation of the Rules by the Hoffa Campaign. In the absence of this remedy, the liability, if any, for attorneys’ fees payable to Mr. Croce as a result of the Rules violation would be borne unfairly by Local 251.
The Hoffa Campaign further argues that Mr. Croce should not benefit from the escrow remedy because he did not file a protest with the Election Supervisor and did not participate in the appeal of ESD 306. Nothing in the Rules requires a candidate to file a protest in order to benefit from remedial relief awarded as a result of an investigation by the Election Supervisor. See Article XIII, Section 4.
Finally, I find that the amount of the escrow is neither arbitrary nor excessive, but represents a reasonable estimate of fees that could potentially be incurred, even at modest hourly rates, if Mr. Croce should pursue his claim and prevail in in the Union’s internal remedial system or under Title IV of the LMRDA.
The appeal of the escrow remedy imposed in ESD 306 is denied, and ESD 306 is affirmed in all respects.
SO ORDERED.
/s/____________________________________
KATHLEEN A. ROBERTS
ELECTION APPEALS MASTER
DATED: December 9, 2016
[1] The Election Supervisor found that extensive email correspondence between Kelley McNally, on behalf of 251 Strong, and Christy Bailey, campaign manager for Hoffa-Hall 2016, demonstrated that McNally requested and Bailey supplied the Local Union 251 membership list with phone numbers for the use of the 251 Strong slate to phone bank local union members for the local union officers election over the period October 4 through 6, 2016, with a follow-up automated call service (i.e., robo-call) to be conducted during the week of October 10, 2016.
[2] According to calculations performed by the IBT General Secretary-Treasurer’s office, Local Union 251 had an average membership of 5,218; the phone match vendor was able to locate phone numbers for 3,711 of these members.
[3] The Election Supervisor noted that “because the membership list is not available in local union elections in the way it was provided to the 251 Strong slate here, there is no ready comparison to determine the actual value of the benefit conferred on the 251 Strong slate. Evidence from another protest shows that the actual cost of preparing and mailing a postcard works out to approximately $0.80 per member. See Toole & Scaglia, 2016 EAM 28 (August 25, 2016) (postcard mailing to approximately 4,000 members cost $3,193.93). The actual costs of enhancing the membership list with phone numbers is likely considerably less than the cost of printing and mailing an equivalent number of postcards. We nevertheless use the $0.80 per member figure to account for the value of having access to a forbidden resource. Multiplying the unit figure by the 3,711 phone-matched names yields a figure of $2,968.80, which, in our discretion, we round up to $3,000.”
[4] The Election Supervisor noted that attorneys fees may be awarded to a party that prevails in LMRDA Title IV litigation. See Usery v. Local Union No. 639, Int’l Bhd. of Teamsters, 543 F.2d 369, 387-88 (D.C. Cir. 1976); Yablonski v. United Mine Workers, 466 F.2d 424, 431-32 (D.C. Cir. 1972).