IN RE: HOFFA 2006, Protestor.
Protest Decision 2005 ESD 3
Issued: August 4, 2005
OES Case No. P-05-003-072005-HQ
Hoffa 2006 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 three independent committees have failed to file appropriate CCER reports as required by the Rules.
Election Supervisor representative Jeffrey Ellison investigated this protest.
Findings of Fact
The protest alleges that three independent committees violated Article XI of the Rules, two by failing to file CCER reports for the period ending May 31, 2005, and the third by failing to disclose an "in-kind" contribution it made during that reporting period. Thus, the Committee for New Leadership (CNL) and the Central States Pension Improvement Committee (CSPIC) are said to have violated the Rules by failing to file reports. Further, the Teamsters for a Democratic Union (TDU) is said to have failed to disclose an "in-kind" contribution it made to CNL.
On Wednesday, July 13, 2005, counsel for the protestor corresponded with our office inquiring, pursuant to Article XI, Section 2(e) of the Rules, whether TDU, CNL and CSPIC had filed CCERs.1 We sent a written reply to this inquiry on Friday, July 15, which the protestor's counsel read on Monday, July 18. This protest was filed two days later, on July 20.
CNL. CNL was formed in May 2005 with the aim of assembling "the program and leadership team that can defeat Hoffa in next year's IBT election." The committee has solicited contributions from Teamster members. According to CNL's records, however, by the end of the first reporting period, May 31, 2005, CNL had not yet collected or expended $1,000 in funds.
CSPIC. CSPIC was formed in 2002. CSPIC states that its purpose is to address four principal issues with the Central States Pension Fund: 1) restrictions on members' rights to hold jobs after retirement from covered employment; 2) a freeze on pension benefits; 3) increases in the cost of retiree health insurance; and 4) accountability of union-appointed trustees of the fund. It has devoted its efforts to educating the membership, organizing support, and financing litigation around these issues.
To that end, CSPIC periodically has published newsletters describing its progress. Some of these newsletters reference the delegate election governed by the Rules, in the context of bringing about a change in the IBT constitution that ends appointment of union pension trustees and requires their election by the relevant membership pool. Thus, the following appears in Update #19, published in March 2004, under a headline of "Winning Accountability: Now and Into the Future" and a sub-headline of "Local Elections, Delegate Races and the IBT Convention":
Currently, members have no direct say over our benefit fund trustees. But we do have the right to vote for the local union officers who name representatives to the selection boards and for International Union officers at the top of our union.
We need to use these rights in local elections and in the 2006 IBT election to choose officers who will defend our benefits.
The more pressure we build now, the more likely we will win benefit improvements before the next IBT election.
We also need to look down the road for ways to win more accountability. An important change would be to give members the right to vote for benefit fund trustees.
This change can be made at the 2006 IBT Convention by an amendment to the Teamster Constitution.
In 2006 we need to go to the convention with more delegates, greater momentum for change, and a mandate to win this important right.
Local union delegate elections start in the fall of 2005. Plans for those elections need to start now.
Building the CSPIC network and recruiting to TDU are two steps we can take now to prepare for the important battles ahead.
Similarly, Update #21 published in June 2004 states:
4. Looking to the future. The immediate goal is to stop the cuts. Some long-term goals can play a role by adding pressure on the IBT and the fund.
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Local elections 2004. We need to make the cuts an issue in every election. Wherever possible we need to elect officials committed to reform. |
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Delegate elections. The delegates to the next Teamster convention will be elected in late 2005 and early 2006. Initial plans can and should start now for electing delegates who will take the pension issue to the floor of the next Teamster convention. We need to put motions and resolutions forward that address the need for democracy and accountability from union pension fund trustees. |
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IBT election 2006. The next Teamster election will be a huge opportunity. The IBT officials responsible for the benefit cuts, the lies and the coverup will have to face election. We need to start organizing now in order to have the largest possible impact in the 2006 elections. |
Update #23, published in September 2004, states CSPIC's goal to "build accountability into the Teamster Constitution" by "bringing pension issues to the floor of the 2006 Teamster Convention and making benefit cuts a focus of the next IBT general election." Update #24, published in November 2004, elaborates on this point:
One way to get more accountability from the IBT and the funds on benefits is to build it right into the Teamster Constitution. In 2006, at the next Teamster Convention, we will have the chance to do exactly that. But to be strong enough to win motions on the convention floor we need to start working now - by winning local union elections and by preparing for the delegate elections that will take place starting next year.
This update quotes a member of Local Union 667: "Starting one year from now every local union will hold elections so members can choose the delegates that will represent them at the 2006 Teamster Convention. We need to start preparing now to win those delegate races. In Memphis we are going to do whatever it takes to make sure that Local 667 Teamsters are represented by 'No Pension Cuts' delegates at the convention. We need to be there to demand accountability and a restoration of benefits."
Finally, Update #25, published in January 2005 (the last such update published on CSPIC's website, www.nopensionfreeze.org), states: "The answer is to strengthen our union and our pension plan. We can send delegates to the Teamster Convention in 2006 committed to pension accountability, reform and new leadership for our pension funds. It worked before, and it will work again."
CSPIC denies that it has solicited or expended any funds for the purpose of supporting or opposing any candidate for International office, and we have found no evidence to contradict this denial. The excerpts quoted from newsletters, which are typical of CSPIC's statements, describe CSPIC's position on pension fund issues but the statements do not identify delegate candidates or international office candidates for support or opposition.
TDU. TDU publishes Convoy Dispatch, a newspaper; it also maintains a website at www.tdu.org. Both of these vehicles carried an article announcing the formation of the Committee for New Leadership. The Convoy issue was printed on June 8 and mailed on June 9. The CNL article was posted on the website at the same time. The first CCER reporting period ended on May 31, 2005.
Analysis
Timeliness. Respondents first challenge the timeliness of the protest. The Rules, at Article XIII, Section 2(b), require that pre-election protests be filed "within two (2) working days of the day when the protestor becomes aware or reasonably should become aware of the action protested or such protest shall be waived."
Here, the uncontradicted evidence is that protestor, through its counsel, first learned that CNL and CSPIC had not filed CCERs when he read correspondence to this effect from our office on July 18, 2005. The protester could only learn whether CNL or CSPIC had made a CCER filing by making a written request for that information, Rules, Article XI, Section 2(e), and the correspondence from this office, read on July 18, provided the protester with factual information that formed a basis for the protest. The protest, filed July 20, was therefore timely.
The merits. The Rules define "independent committee" as "any person or entity not controlled by a candidate or slate who/which has accepted any campaign contribution as defined by these Rules, or who/which has made any expenditure, where the purpose, object, or foreseeable effect of the contribution or expenditure is to influence the election of International Officer candidate(s)." Definition 22 (emphasis added).
The Rules require that Campaign Contribution and Expenditure Reports (CCERs) be filed by "[e]very independent committee which has received or solicited contributions in excess of $1,000, whether of money or of any other thing of value, or made expenditures in excess of $1,000 whether of money or of any other thing of value, where the purpose, object or foreseeable effect of any such contribution or expenditure is to influence the election of one or more International Officer candidates, whether or not any such candidate is as yet declared, accredited or nominated." Article XI, Section 2(a)(3), in relevant part.
For those independent committees required to file CCERs, the Rules require that the first such report cover activity occurring during the period ending May 31, 2005. Article XI, Section 2(d)(1)(i).
In contrast to the requirement that independent committees supporting or opposing candidates for International Office file CCERs, no such requirement is imposed on independent committees for activity relating only to the delegate elections. Thus, Article XI, Section 2(b)(1)(B) requires each independent committee to contributions received for delegate elections "are made only by members;" Section 2(b)(1)(C) requires each independent committee to maintain records of expenditures exceeding $50 made "in connection with the International Union delegate and alternate delegate elections;" and Section 2(b)(1)(A) requires each "independent committee participating in the International Union delegate and alternate delegate elections to keep records sufficient to demonstrate compliance with these Rules" and submit to audit by the Election Supervisor upon notice. But an independent committee has no obligation to file a CCER if it does not receive or expend funds in support of or opposition to a candidate for International Office.
Based on these provisions, we find that CNL was not required to file a CCER for the period ending May 31, 2005. One purpose of CNL is to draft candidates to defeat incumbent International Officers. CNL was not required to file a CCER, however, because it did not, receive or expend "money or any other thing of value" in excess of $1,000 during the reporting period "to influence the election of one or more International Officer candidates." CNL did not reach a level of activity under the Rules' that triggers an independent committee's filing obligation.
Regarding CSPIC, we find that organization did not, during the reporting period, meet the Rules' definition of "independent committee." CSPIC's activities have focused on pension reform, not the election of International Officers. One of CSPIC's goals in this regard is to effect constitutional change in the manner in which pension trustees are selected - change that can be made by action of the delegate body at the International Convention. However, through May 31, 2005, CSPIC had not raised or expended funds in support of or opposition to particular candidates for delegate or alternate delegate, and therefore had no obligation (even a recordkeeping obligation under Article XI, Section 2(b)(1)) under the Rules. Regarding CCER filings, because CSPIC has not received or expended funds to support or oppose any candidate for International Office, it was not required to file a CCER during the period in question.
Finally, TDU's announcements of the formation of CNL did not occur during the reporting period at issue here. We express no opinion as to whether such announcements constitute reportable "in kind" contributions from TDU to CNL, as the protestor contends, as the matter is not ripe for decision on the facts presented here.
Accordingly, we DENY the protest.
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 1450, 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 3
Footnotes:
1. The protester initially requested information about filed CCERs on July 7, 2005, shortly after the June 30 filing deadline for the first CCER. The protester was informed on July 12 that the request did not comply with Article XI, Section 2(e) of the Rules, and a new request that complied with the Rules was submitted the next day.
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
Ann Curry Thompson
Kelman Loria, PLLC
660 Woodward Avenue, Suite 2300
Detroit, MI 48226
acthom@kelmanloria.com
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Jeffrey J. Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com