IN RE: HOFFA 2006, Protestor.
Protest Decision 2005 ESD 12
Issued: September 30, 2005
OES Case No. P-05-010-083005-HQ
The Hoffa 2006 campaign 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 alleged that Thomas O'Donnell, IBT vice president at large and president of Local Union 817, violated the Rules by distributing campaign literature to joint councils via fax.
Election Supervisor representative Jeffrey Ellison investigated this protest.
Findings of Fact
The protestor alleged that O'Donnell faxed an announcement of his candidacy to various joint councils, which caused the joint councils to expend union resources receiving the transmissions.
Investigation showed that O'Donnell sent a two-page fax to 36 joint councils. The fax consisted of a cover page addressed to "Joint Council Officers" and a second page announcing O'Donnell's candidacy for IBT General President and criticizing the performance of incumbent General President James P. Hoffa.
O'Donnell paid to send the announcement from fax machines available at two area office supply stores.
Analysis
Article VII, Section 11(c) of the Rules states the following, in relevant part:
Union funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in campaigning unless the Union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance.
In Ostrach, 2000 EAD 29 (October 2, 2000), the Election Administrator summarized the law concerning use of union resources with respect to faxing of campaign literature to union fax machines. Citing the Election Appeals Master's decision in Shaffer, 00 EAM 2, p. 9, the Election Administrator wrote the following:
Campaign literature can be sent to local unions by election campaigns, provided that the candidate requests that the literature be distributed to the membership by the local union, at the campaign's expense, and provided further that the materials that are sent to the local union are intended for campaign literature table distribution and are not intended "for distribution outside the confines of the local union."
Our Advisory on the Use of Literature Tables or Bulletin Boards for the Distribution of Campaign Literature Inside Union Halls elaborates on this point as follows:
The purpose of requiring locals to set up literature tables or bulletin boards at union halls is to allow candidates to communicate directly with members who make use of the hall. It is not to allow candidates to communicate directly with union officials in the guise of providing campaign literature for literature tables or bulletin boards. It remains a violation of the Rules for candidates to use literature tables or bulletin boards: 1) to communicate directly with campaign loyalists as opposed to the general membership; or 2) to distribute literature that by its nature or terms is meant for further circulation outside the union hall, like accreditation petitions. Shaffer, 2000 EAD 8 (August 1, 2000), aff'd as modified, 00 EAM 2 (August 17, 2000); Ostrach, 2000 EAD 29 (October 2, 2000), aff'd, 00 EAM 7 (October 10, 2000)
The advisory further cautions as follows:
Candidates and slates can distribute their literature to the local by mail, fax, e-mail, or hand delivery. Any literature distributed to locals must include a cover sheet with the following information: 1) the name and address of the candidate or slate, 2) the candidate or slate representative to contact for purposes of charging any costs of reproduction, 3) a statement that union resources may not be used for reproducing the literature (except the first 50 copies as described [in the advisory]), 4) specific instructions as to how the slate wants the literature distributed, 5) where it should be placed (bulletin board or table), 6) how many copies should be reproduced, and 7) the following disclaimer:
"Campaign literature may only be distributed or made available by a local union in a non-discriminatory manner through mailing or use of a literature table or bulletin board open to all candidates. The candidate or slate responsible for this literature is responsible for paying copying and distribution costs as defined by the Election Administrator."
Here, candidate O'Donnell's fax cover page was addressed to "All Joint Council Officers" and identified O'Donnell as the sender. Otherwise, the cover page and the announcement of candidacy itself contained none of the information and cautionary instructions required by decisions of the Election Officer, the Election Administrator, the Election Appeals Master, or our advisory on the subject. Further, the fax appears not to have been intended for distribution to union membership generally but rather to union officers. Accordingly, the announcement should have been sent to the home addresses of the recipients rather than to their union offices. For these reasons, O'Donnell's faxing of his announcement of candidacy to union fax machines constituted an improper use of union resources for the purpose of receiving information that was not properly designated for distribution on literature table or bulletin board.
Accordingly, we GRANT the protest.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed 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.
We order Thomas O'Donnell to cease and desist from any further violation of the Rules with respect to improper use union resources in the distribution of campaign materials. We further order O'Donnell, within two (2) business days of receipt of this decision, to sign and fax the attached Notice to the joint councils to which he faxed his campaign announcement. Finally, we order O'Donnell, within one (1) business day of faxing the attached Notice, to transmit his affidavit to our office attesting to his compliance with this remedy.
We decline to adopt the additional remedy suggested by the protestor, consisting of a monetary penalty and distribution of the protestor's campaign literature at O'Donnell's expense, as unwarranted in the circumstances presented.
A decision of the Election Supervisor takes immediate effect unless stayed. Lopez, 96 EAM 73 (February 13, 1996).
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. 20006-1416, 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
2005 ESD 12
NOTICE TO JOINT COUNCILS
The Election Supervisor has determined that I violated the Election Rules by faxing certain campaign materials to IBT joint councils. Campaign materials may be faxed to IBT local unions only for display and distribution on literature tables or bulletin boards, and faxed materials must be sent with the instructions and cautionary warning required by earlier decisions issued under the Election Rules, and by the Advisory on the Use of Literature Tables or Bulletin Boards for the Distribution of Campaign Literature Inside Union Halls (available at www.ibtvote.org). The campaign materials I faxed did not include the required instructions and cautionary warning.
In issuing this decision, the Election Supervisor has ordered me to cease and desist from any future violation of the Election Rules with respect to the use of union resources in the distribution of campaign materials, and to fax this notice.
_____________________________________
Thomas R. O'Donnell
Candidate for IBT General President
This is an official notice prepared and approved by Richard Mark, Election Supervisor for the International Brotherhood of Teamsters.
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
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Thomas R. O'Donnell
President, Local 817
1 Hollow Lane
Lake Success, NY 11042
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com