IN RE: TEAMSTERS FOR A DEMOCRATIC UNION and ROB HACKETT, Protestors.
Protest Decision 2005 ESD 2
Issued: July 15, 2005
OES Case No. P-05-002-060605-ME
Teamsters for a Democratic Union (TDU), an independent committee, and Rob Hackett, a member of Local 957, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleges that the International Brotherhood of Teamsters (IBT) made a prohibited campaign contribution to the Hoffa 2006 campaign by conducting polling that had the purpose, object or foreseeable effect of influencing the election of James P. Hoffa as General President.
Election Supervisor representatives William Kane, Jeffrey Ellison and Maureen Geraghty investigated this protest.
Findings of Fact
The protest asserts that a firm engaged by the IBT conducted an opinion poll of members of the IBT's carhaul division on or about May 22, 2005 and, during the course of that poll, asked respondents' impressions concerning General President James P. Hoffa. Such a poll, funded by the IBT, is said to violate Article XI, Section 1(b)(3) of the Rules.
Our investigation revealed that the IBT commissioned a poll of its carhaul members in May 2005. The poll, conducted by Schroth & Associates on May 21 and 22, sought to assess members' opinions concerning recent developments in the carhaul industry. The poll consisted of some 38 questions and was directed to 500 respondents.
The IBT's carhaul division consists of approximately 11,000 members employed by 8 major employers, of which Allied Transportation is the largest. The multi-employer collective bargaining agreement, a 5-year contract, entered its third year on June 1. The initial 2 years of the contract carried a wage-freeze for members. However, the contract required an hourly rate increase effective June 1; an increase in the employers' health and welfare contributions also occurred in the third year of the contract.
In the period immediately preceding June 1, Allied Transportation requested that the IBT excuse it from paying the contractual wage increase, citing its serious financial difficulties. The IBT rebuffed Allied's requests and, at about the same time, commissioned the poll at issue here to assess its members' opinions concerning Allied's request and to gauge support for the various strategies the IBT might pursue if Allied failed to pay the contractual increase.
Brad Slawson, Sr., an international representative and vice president of Local Union 120, told our investigator he was asked by General President Hoffa and General Secretary-Treasurer Thomas Keegel to investigate the carhaul industry generally and Allied's situation in particular and make recommendations concerning the IBT's course of action. Because only a short time existed between Allied's requests to the IBT and the scheduled wage increase, Slawson determined that the most expeditious means to assess the attitudes of carhaul members was by poll. The questions that directly addressed the carhaul situation were prepared initially by Richard Leebove, a consultant to the IBT, and reviewed by IBT employee Todd Thompson.
The poll's initial 12 questions sought respondents' opinions with respect to whether "things in the United States" and "things with the International Brotherhood of Teamsters" are "moving in the right direction" or "are off track and moving in the wrong direction." This section also asked respondents their views with respect to President George W. Bush's job performance, and the performance of the Teamsters Union at the national and local levels and within carhaul specifically. The initial section concluded with questions asking members to identify the specific areas of their jobs that are either "going well" or are "falling short of what they should be", e.g., wages, fringes, safety conditions, pension benefits, and job security.
Centered within the poll's initial section was the following "favorability" question:
4. Now I'd like to ask you your impressions of some people and organizations you may have heard of. As I read each one, just tell me whether you have a very favorable opinion of them, a somewhat favorable opinion, a somewhat unfavorable opinion, or a very unfavorable opinion. If you don't recognize one, that's okay, just let me know. Here's the first one. George W. Bush. Allied Transportation. Hugh Sawyer. James Hoffa. Doc Condor. The International Brotherhood of Teamsters. The president of your Teamsters local. Your business agent of your Teamsters local. Your Teamsters steward. Your employer. Your terminal supervisors.1
The poll's second section, consisting of 26 questions, addressed the state of the carhaul industry directly, including the financial difficulties faced by Allied Transportation and the June 1 wage increase.
The poll concluded with demographic questions that categorized the respondent by gender, age, income level, job, and length of Teamsters membership, among other categories.
Schroth & Associates has provided polling services to the IBT since 2002. In 2004, Schroth conducted 9 polls for the IBT. Five of these polls assessed respondents' opinions of candidates for U.S. president. Of these, one targeted individuals who were Democrats or independents and members of a union, but not necessarily the IBT; a second questioned respondents who were Democrats; the remaining three were directed at U.S. Teamsters. The additional 4 polls conducted in 2004 were targeted to members employed by particular IBT employers and concerned contractual issues involving those employers.
Of the 2 polls conducted thus far in 2005, one occurred immediately after President Bush's State of the Union address in January; it dealt principally with health care, retirement, and Social Security. The second poll was the carhaul poll at issue here.
Each poll conducted in 2004 and 2005 contained the favorability question quoted above with respect to James P. Hoffa, although the list of persons and organizations in which his name appeared varied from poll to poll. For example, a poll of Iowa union members conducted in January 2004 sought respondents' impressions of a list of U.S. presidential candidates and labor leaders; Hoffa's name appeared in that list. Similarly, a September 2004 poll directed at Teamsters members employed by a particular employer under contract with the IBT contained Hoffa's name on a list that included the named employer, the IBT, and the respondent's Teamsters local and steward, among others.
The IBT and the polling firm explained that the favorability question with respect to Hoffa and union leadership at the local and shop levels is intended to identify the best messenger for the message the IBT elects to communicate to its members.
In addition to the favorability question found in all polls, five of the polls conducted in 2004 and 2005 asked respondents their opinions as to Hoffa's job performance. The last such poll to pose this question was put in the field to 600 U.S. IBT members from January 19 to 26, 2005, and asked the following:
How would you rate the job that Teamsters General President James Hoffa is doing - excellent, good, only fair or poor?
After concluding its questioning of respondents in a given poll, Schroth typically compiles the polling data into two reports. The first so-called "top lines" report consists usually of a half dozen or fewer pages and lists the polling questions and the gross percentages compiled for each possible answer. The second "cross tabs" report is typically much longer (the carhaul cross tabs runs 144 pages) and contains a statistical analysis of polling results for particular questions as correlated against the results for others and demographically. For example, the cross tabs for the carhaul poll show the percentage of respondents who have a favorable impression both of Hoffa and of the IBT's job performance in the carhaul industry.
Schroth's contract with the IBT shows that the carhaul poll cost $24,450. The charges for polls vary by number of respondents and length of interview. The charge for a poll of 500 respondents roughly equates to $650 per minute of interview length.
Although James Hoffa has not yet formally announced his candidacy, he is currently a candidate for re-election to the office of General President, as indicated by his counsel, David Hoffa. The evidence as to when Hoffa became a candidate is as follows.
According to David Hoffa's initial statement to our investigator made June 15, the campaign was commenced in "early May" 2005, "a few days after" the Rules were published for comment on May 3. However, in a letter to our investigator dated July 7, David Hoffa stated the following:
I did not "previously indicate [to you] that James Hoffa became a candidate for reelection in early May 2005." What I have said, on numerous occasions, is that in May of 2005 Mr. Hoffa was seriously exploring his option to become a candidate for reelection, but had not finalized his decision or taken any overt steps that would constitute "actively seeking" nomination or election, until at the very earliest when I notified Mr. Mark of my engagement by the Hoffa 2006 Campaign (on or about May 23, 2005) and/or until contributions were accepted on his behalf, as reported on the Hoffa 2006 Campaign's initial CCER.
(Original emphasis.)
David Hoffa was engaged as counsel by written agreement dated May 25 and accepted by the campaign on June 3. Gary Kushner, accountant to past Hoffa campaigns, stated that he is serving as accountant to Hoffa 2006. He first performed work on Hoffa 2006 in late April or early May 2005, when he applied to the Internal Revenue Service for a tax identification number for the campaign. The IRS issued the tax ID number on May 4, 2005.
The Hoffa 2006 campaign has reported that its first financial activity - a loan of $500 from James Hoffa - occurred on May 16, 2005.
Leebove and Thompson, drafters of the carhaul poll, both played key roles in the Hoffa 2001 campaign. Each told our investigator on June 14, 2005 that he had not been engaged as yet in the Hoffa 2006 campaign but each indicated that he would serve, if requested. However, Thompson telephoned our office on May 16, advising that he in fact already was a campaign manager for Hoffa 2006.
Chuck Mack, Western Region vice president, told our investigator that he discussed slate formation with James Hoffa in December 2004, telling Hoffa that he had not yet decided whether to seek reelection on the Hoffa slate; according to Mack, Hoffa replied that the decision was Mack's to make and that he should let Hoffa know when he had made it. Mack stated to our investigator that he told Hoffa in early March 2005 that he would run on the Hoffa slate. David Hoffa disputes Mack's statement, stating that "Mack did not make a decision to run for re-election until April, and that Mr. Mack did not discuss this decision with Mr. Hoffa." Nonetheless, Mack established a "Hoffa Mack 2006" website on April 21, 2005; the site promotes the reelection of Hoffa and Mack to IBT office.
Hoffa himself made a public statement possibly suggesting candidacy for reelection prior to the time the formal campaign structure was erected. Thus, Hoffa posted a letter on the IBT website on January 28, 2005, in which he deflected a suggestion that he pursue the presidency of the AFL-CIO, stating:
As flattering as your suggestion is, I have no interest in being the President of the AFL-CIO. I am already the President of the strongest and most highly respected labor union in the United States and intend to continue in that position as long as the membership believes I am the right person for the job.
(Emphasis supplied.)
The Hoffa campaign, per David Hoffa, denies that this letter constitutes a statement of candidacy for reelection to IBT office, stating instead that it is a "simple, straightforward response to a member's inquiry as to whether Mr. Hoffa had thought about leaving the IBT and running for AFL-CIO President." Further, David Hoffa writes that "it would be naïve and inaccurate to assume that the IBT General President is a cloistered position in which there is no interaction with the membership other than in campaigns occurring every five years, and that the only way for the membership to communicate with him about whether it believes him to be 'the right person for the job' would be through the election process scheduled to be completed in 2006."
Analysis
The Rules prohibit contributions by a labor organization to any candidate, viz.
No labor organization, including but not limited to the International Union, Local Unions and all other subordinate Union bodies, whether or not an employer, may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object, or foreseeable effect of the contribution is to influence, positively or negatively, the election of the candidate, except as permitted by subparagraphs (5) and (6) below. No candidate may accept or use any such contribution. These prohibitions extend beyond strictly monetary contributions made by a labor organization and include contributions and use of the organization's stationery, equipment, facilities and personnel.
Union-sponsored polling concerning a candidate's standing with potential voters has been held to be a violation of the Rules. Thus, in Giacumbo, P-001 (September 29, 2005), aff'd as modified, 95 EAM 32 (November 1, 1995), the Election Officer considered an IBT-sponsored poll that queried members about their attitudes concerning Ron Carey, the incumbent general president and candidate for re-election, including whether they regarded him favorably or unfavorably, approved or disapproved of his job performance, and regarded his job performance as better or worse than previous union presidents. The Election Officer found that these questions sought "information that would be directly useful and relevant to Ron Carey as a candidate for reelection." The responses gave the candidate "an in-depth view of how members perceive him and his leadership. This information could be utilized to influence his reelection as general president." Accordingly, the Election Officer found the polling to constitute a prohibited union contribution and ordered the Carey campaign to reimburse the IBT for the cost of the polling.
The Election Appeals Master affirmed the finding of a violation, emphasizing that the polling at issue was prohibited only because Carey was a candidate at the time it was conducted. Thus, "[o]nce a union officer becomes a candidate, that officer may not permit the union to fund activity which has the purpose, object or foreseeable effect of promoting his or her candidacy, even though the identical activity was properly funded by the union prior to that officer's candidacy." Giacumbo, 95 EAM 32 at 5. The Appeals Master broadened the remedy ordered by the Election Officer, directing that the Carey campaign, in addition to reimbursing the IBT for the costs of the poll, distribute the data derived from the prohibited questions to all other candidates for international office.
The first issue to resolve, then, is when Hoffa became a candidate as defined by the Rules. 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. The term includes any member who has accepted any campaign contribution as defined by the Rules or made any expenditure, where the purpose, object or foreseeable effect of the contribution or expenditure is to influence the election of that member to any such position.
Rules, Definition 6. In Martin, P10 (August 17, 1995), aff'd, 95 EAM 18, the Election Officer instructed that, to determine whether a member is "actively seeking nomination or election," one must examine the indicia of candidacy, including "a declaration or announcement of candidacy or other statement of intent to seek a delegate, alternate delegate, or International officer position." In Pope, 2000 EAD 4 (August 1, 2000), aff'd, 00 EAM 3, the Election Administrator held a member to be a candidate because he made a "classic 'stump' speech," even though his candidacy was otherwise undeclared. In Guzman v. SEIU 32B-32J, 151 F.3d 86, 158 LRRM 2971 (2d. Cir. 1998), the Court held the plaintiff a candidate because he "made noises like a candidate," reasoning that -
there is good reason to leave open the possibility that a union election campaign could begin before any candidate announced an intention to seek office - a familiar phenomenon in campaigns for public office. Otherwise a union would be free to support an undeclared incumbent until the incumbent announced an intention to seek re-election or were formally challenged, as long as the union refrained from explicitly endorsing the incumbent's candidacy.
As we observed in Miner, 2005 ESD 1 (May 27, 2005), the threshold for establishing candidacy is low. Here, we find that James Hoffa has established candidacy for re-election because he has, among other things, formed a campaign committee, made a loan to that committee, installed a campaign manager, established a bank account, and engaged accounting and legal representation for Hoffa 2006. The first act to establish the formal structure of the campaign occurred in late April or early May 2005 when the campaign's accountant requested the IRS to issue a tax identification number (TIN), which was a prerequisite to the opening of the campaign's bank account. Additional acts that preceded the carhaul poll at issue in this protest include engaging a campaign manager and accountant and making a loan to the campaign. Based on these facts, Hoffa unequivocally became a candidate prior to the date the carhaul poll was put in the field on May 21.
In contrast, we are unwilling to conclude that Hoffa was a candidate before the January 2005 poll was initiated. While he may have discussed slate formation with Chuck Mack in December 2004, we have found no evidence that such discussions of incipient candidacy resulted in a decision to seek reelection prior to January 19, 2005, the date that month's poll commenced. Further, we are not persuaded that the IBT website posting of January 28 signaled that a decision to seek reelection had been made; the statement is ambiguous and, in any event, came after the January polling had been completed.
Based on these facts, we find that Hoffa was a candidate within the meaning of the Rules in May 2005, when the carhaul poll was conducted, but not in January 2005, when the poll of U.S. IBT members was carried out.
We make this finding of candidacy even though Hoffa has to date not formally announced his campaign for reelection. Although a member may first declare his candidacy by such a formal announcement, candidacy is more often established by a less direct statement of intention to stand for election (see Guzman, supra), such as a stump speech (Pope), a letter to potential supporters (Martin) or, as here, behind-the-scenes assembly of a campaign organization.
Once Hoffa became a candidate, union resources cannot be used to promote the candidacy, even where the union activity involved could have been undertaken properly before the candidacy. Giacumbo, 95 EAM 32 at 5.
Turning to the carhaul poll itself, we note initially that the overall purpose and scope of the poll pursues a legitimate union function of assessing its members' opinions concerning the strategy to pursue in a particular industry. Nonetheless we find that the question it contains with respect to Hoffa's favorability is the same as one of the questions the Election Officer found improper in Giacumbo. The Election Officer and the Election Appeals Master both cited specific questions in the December 1994 survey that would yield information that could foreseeably have the effect of aiding then-President Carey's candidacy. See Giacumbo, 95 EAM 32 at 5 ("Specifically, the following questions asked in the survey provide very useful information to Mr. Carey in formulating his campaign strategy"). The questions identified in Giacumbo as providing "useful information" included one asking the respondent's favorability reaction to a collection of people and organizations including the General President. Such a question also was included in the carhaul poll. Compare May 2005 Schroth Poll, Question 4 (asking members to rate their feelings about certain public figures, including James Hoffa) with December 1994 Hart Poll, Question 5 (asking members to rate their feelings about certain public figures, including Ron Carey). "An analysis of these survey responses would provide [Hoffa] with detailed information concerning his political strengths, weaknesses, and popularity, as perceived by the IBT membership. … It is clear that such information has the foreseeable, indeed, the likely, effect of aiding [Hoffa's] campaign for re-election." Giacumbo, 95 EAM 32. While one question would not provide information as rich as could be obtained from a multiple question survey, the one question asked here still elicits information that could foreseeably be useful to the campaign.
Accordingly, we GRANT the protest, finding that the IBT violated the Rules by polling on a candidate's "favorability," and finding further that the candidate, Hoffa, violated the Rules by permitting such polling.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is appropriate". Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
1. The IBT has agreed, through the date election results for international officers are certified, to refrain from polling that seeks respondents' opinions as to the "favorability," job performance, or similar information with respect to any incumbent IBT officer, including the General President. The IBT further has agreed to provide all results from the question found to be prohibited here to all accredited candidates for international office. Such distribution will occur under our supervision to insure both that such candidates receive the required information and that the union's legitimate interest in the confidentiality of the remainder of the poll is protected. Based on these agreements, we deem the protest RESOLVED with respect to the IBT.
2. Consistent with the Election Officer's decision in Giacumbo, we order the Hoffa 2006 campaign to reimburse the IBT the cost that the Hoffa campaign would have incurred had it undertaken, at its own expense, a poll that asked 500 respondents their impressions of James Hoffa. Based on our investigation, we find that such a poll, including demographic questions, would require an interview length of three to four minutes. At an allocated cost of $650 per minute for the activity entailed in asking one question and related demographic information as part of a poll, the sum of $2,000 represents a reasonable estimate of the cost, and we direct that the Hoffa campaign, within seven (7) days of receipt of this decision, tender payment in that amount to the IBT and provide an affidavit of compliance to our office.
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 Supervisor 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 the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2005ESD 2
Footnotes:
1. Sawyer is CEO of Allied Transportation. Condor is the outgoing director of the IBT's carhaul department
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
pszymanski@teamster.org
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
braymond@fwslaw.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net
David J. Hoffa
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48334
david@hoffapllc.com
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Rob Hackett
17 McCabe Way
Dayton, OH 45439
chillyno1@woh.rr.com
William B. "Bill" Kane
242 Old Haymaker Road
Monroeville, PA 15146
Jeffrey J. Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com
Maureen Geraghty
The Geraghty Law Firm
426 Old Salem Road
Winston-Salem, NC 27101
mg@geraghtylawfirm.com