IN RE: DAVID THORNSBERRY, Protestor.
Protest Decision 2005 ESD 32
Issued: December 12, 2005
OES Case No. P-05-029-110305-MW
David Thornsberry, a member and elected delegate of Local Union 89, 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"). He alleged that accredited International officer candidates James P. Hoffa and/or Thomas Keegel permitted use of Local 89's membership list to benefit the Zuckerman-Bolton slate in the Local Union election, in violation of the Rules.
Election Supervisor representative Joe F. Childers investigated this protest.
Findings of Fact
The tally of ballots for the election of delegates and alternate delegates at Local Union 89 was completed on October 27, 2005. Two slates competed in that election. The Zuckerman-Bolton Fighting for You slate (ZB slate) was led by incumbent Local 89 president Fred Zuckerman. Protestor Thornsberry headed the United Rank & File slate. The ZB slate is aligned with Hoffa 2006; the UR&F slate is opposed. The UR&F slate won all delegate and alternate delegate positions by a margin of roughly 200 votes on 3,905 valid ballots cast.
The election of local union officers is scheduled to be completed December 17, 2005. The local union election is a hybrid mail-ballot, walk-in election. Members whose worksites are more than 20 miles from the local union hall were mailed "absentee" ballots on November 16. Those members may cast their ballots by mail or, along with the rest of the membership, vote in person at the local in balloting to be held December 16 and 17. ZB and UR&F factions have slates that are competing in the local officer election as well. All members who are candidates on these slates in the local officer election were also candidates in the delegate and alternate delegate election.
The protest alleged that the membership list of Local Union 89 "has been given to a polling entity for the purpose of affording the Zuckerman slate an opportunity to campaign for local union office by conducting a telephone survey of Local 89 members, in which members are subjected to Zuckerman slate campaign propaganda against David Thornsberry, a candidate on the United Rank and File slate, in a campaign for local union office that is currently underway."
On the same date Thornsberry filed this protest with us, he filed a similar election protest with the Local 89 executive board, alleging that the ZB slate had been permitted access to the local union's membership list in violation of rules governing the local union election. On November 9, the executive board denied Thornsberry's protest, stating that "any misuse of the membership list in the polling process was not the fault of Local 89's officers and that the issues of improper use of the membership list you have raised must be resolved in the litigation you have commenced before the Election Supervisor."
Our investigation showed that Hoffa 2006 paid to have a poll conducted of Local 89 membership on November 1, 2 and 3, 2005. The poll was designed by Todd Thompson and Richard Leebove, Hoffa 2006 campaign operatives. According to Leebove, Thompson contacted him shortly after the delegate election and suggested that the Hoffa campaign commission an "exit poll." Leebove explained that Thompson was concerned that the Hoffa-affiliated ZB slate had lost in one of the largest locals in the IBT and one of the first to conduct a delegate election. Leebove and Thompson agreed that a poll would assist the Hoffa campaign in identifying the issues that motivated voters in the delegate election. They sought to determine whether the election turned on issues particular to Local 89 or of national application.
On August 31, 2005, we received accreditation petitions circulated in behalf of James P. Hoffa and Thomas Keegel. On September 13, we certified those individuals as accredited candidates for union-wide office. Accredited status permits a candidate to publish "battle pages" in IBT publications Teamster and Teamster Canada. Such status also permits a candidate to receive a complete list of IBT members. At their request, we supplied those candidates with a membership list on September 30, 2005.1
Thompson culled Local 89's membership information from the list and engaged Applied Technologies, a vendor with a national data base of telephone numbers, to provide a "phone match" for those members. Applied Technologies was able to supply telephone numbers for approximately 8,000 names, roughly one-half of the local's membership. Thompson then engaged Mitchell Research, a polling firm in East Lansing, Michigan, to poll the membership with the telephone numbers supplied by Applied Technologies.
The 42-question polling script sought to identify members who voted in the delegate election and survey their opinions. The script's first four questions asked whether the respondent was a member of Local 89 and had voted in the delegate election. If the respondent had not voted in the delegate election, the interview was terminated. Questions 5 and 6 asked respondents whether the nation and the IBT were moving in the right directions. Questions 7, 8, and 9 and asked how James Hoffa, Local 89, and Fred Zuckerman2 were doing in their jobs, and whether Local 89's performance was worth the monthly dues expense. Questions 11 through 21 asked respondents whether they held favorable or unfavorable impressions of the following: "President George W. Bush," "The Teamsters Union," "President James P. Hoffa," Local 89, Fred Zuckerman, John Bolton, David Thornsberry, Darrell Hall, Ken Hall, "your Local 89 Business Agent," and "your shop steward." Zuckerman and Bolton were delegate candidates on the ZB slate and are incumbent local officers seeking reelection.3 Thornsberry and Darrell Hall were elected to delegate positions on the UR&F slate and are seeking local union office. Ken Hall is UPS national director.
Questions 22 and 23 sought respondents' views as to the first and second most important issues the Teamsters Union should focus on, selecting from the following list:4
Ending multiple salaries for officers
Increased organizing on non-union competition
Saving our pension and health care funds from further changes
Increasing our job security
Enforcing our contracts
Elect pro-union candidates for public office
Or Other/something else
Questions 24 through 29 sought respondents' views and impressions on pension and health and welfare issues, including where they assigned responsibility for recent changes made in the plans provided by Central States pension and health and welfare funds from among the following choices:
The Teamsters Union
The Central States Fund Trustees
Teamsters Local 89
The Bad Economy
Congress
President Bush
Teamsters Companies
Anti-Union Companies
Or Other/Something/Someone Else
Questions 30 through 34 are reprinted here in their entirety:
30. Now let me read you a couple of reasons members gave for having doubts about voting for Zuckerman/Bolton Fighting for You Slate and reasons members gave for having doubts about voting for Thornsberry/Rank and File slate. If you came to know the following reasons were true, would you have had serious doubts about voting for that candidate, some doubts, or would this have little or no effect on your decision for whom to vote? Here's the first one… (READ/ROTATE)
While the Thornsberry/Rank and File slate is critical of the management of pension and health benefits, they have no one on their team with any experience dealing with benefits nor do they have any solutions other than complaints.
31. The Thornsberry/Rank and File slate wants to take UPS out of Central States which would hurt all other Teamsters covered by the pension fund.
32. Fred Zuckerman draws multiple salaries and gets three pensions including the top-of-the-line Family Protection Plan.
33. Fred Zuckerman is part of the Hoffa Team that raised our dues and cut our pensions.
34. Now that you've heard a little bit more information, if the election for IBT delegates of Local 89 was being held today, would you still vote for the Zuckerman/Bolton Fighting for You slate or the Thornsberry/Rank and File Slate?
If Undecided, ask "Which way do you lean today?"5
Much of the balance of the polling script was devoted to questions seeking demographic information, such as gender (question 37), age (question 38), hourly wage (question 40), industry in which employed6 (question 41), and years as a member of the local union (question 42). Two questions (questions 35 and 36) asked respondents their best and second best sources of information in "the recent delegate elections." In addition, the script contained the following question:
39. In the most recent delegate election held within the last month, did you vote for the "Zuckerman/Bolton Fighting for You" slate or the "Thornsberry Rank and File" Slate?
Steve Mitchell of Mitchell Research told our investigator that Todd Thompson of the Hoffa campaign provided his firm with names and telephone numbers of Local 89 members. Mitchell stated that the methodology used to "randomize" the names was to select the nth, e.g. every tenth, name on the list until a sample of 300 was achieved.
Mitchell Research produced two reports of poll results. The first, summary report consisted of 7 pages and listed the responses in percentage terms to each of the questions. The second, more detailed report ran 288 pages and listed the responses for each possible answer to all questions, expressed both in gross numbers and percentages. In addition, the second report cross-tabulated the responses to each substantive question (questions 5 through 34) against the demographic information the poll gathered (questions 3, 4a, 10, and 38 through 42). For instance, question 9, concerning Zuckerman's job performance as local president, was cross-tabulated against the responses to questions 3 ("Did you vote in the delegate election?"), 4a ("Do you generally vote in union elections?"), 38 (age), 39 ("In the most recent delegate election within the last month, did you vote for the 'Zuckerman/Bolton Fighting for You' slate or the 'Thornsberry Rank and File' Slate?"), 40 (hourly wage), 41 (industry), 42 (length of union membership), and 10 ("Generally speaking, do you think you get your money's worth from the dues you pay to Local 89, or not?"). The report contained similar cross-tabulations for all other substantive questions, including by example the job performance of James Hoffa, and the respondents' impressions of Hoffa, Zuckerman, Bolton, Thornsberry, and Darrell Hall, and their views on the pension issues the poll raised.
Steve Mitchell states that Mitchell Research has not returned the phone-matched membership list to the Hoffa campaign, nor has it conveyed any documents that might permit the Hoffa campaign to identify the poll respondents. Leebove corroborates this point, stating that the Hoffa campaign has not and will not ask for information that would identify how particular members voted.
Thornsberry told our investigator that he was contacted by the polling firm and recalled being asked each of the questions described above, including questions 30 through 33. Darrell Hall also was contacted, according to data that appeared on his caller ID, but he was not home to receive the call. Our investigator spoke with other poll respondents identified by Thornsberry and Hall; in the main, these witnesses recalled being asked most or all of the poll questions, including questions 30 through 33.7 The poll results show that each of the questions in the poll had the same gross number of responses, including questions 30 through 33.
Zuckerman denied to our investigator that he knew of the poll prior to it being conducted. He first learned of it when he was contacted by individuals who had been polled. His next information about the poll was the protest in this case. He denied receiving or reviewing the poll results, whether in summary or detailed form; he further denied discussing or being advised of the results.
Leebove corroborated Zuckerman's statements, denying to our investigator that the poll results were shared with Zuckerman or any other candidate or representative of the ZB slate, or that the results were used in any way in the local union election campaign.
Thompson stated that the only persons who had access to the poll results (aside from the polling firm and our office) were himself, Leebove, and campaign counsel David Hoffa. Each received the poll results in electronic form during the period November 6 through 8.
Leebove works for both Hoffa 2006, and for Zuckerman and the ZB slate in the local union election. As a consultant to Hoffa 2006; he agreed to the need for the poll, collaborated on the poll questions and received the polling data. As a consultant to Zuckerman and to the ZB slate in the local union election, Leebove discussed campaign strategy with Zuckerman in mid-November and developed a flyer that the ZB slate has distributed in the local union election campaign. That flyer was directed at a segment of the local union membership that the poll suggested may be receptive to the message the flyer conveyed.
Leebove denied that he prepared the flyer because of the data he received from the poll, or that the data played any role at all in the decision to prepare the flyer or the content to include in it. Zuckerman corroborated Leebove's statement: he told our investigator that he knows his membership well and conceived the idea for the flyer based on that knowledge rather than polling data to which he had no access. He stated further that Leebove did not suggest the membership segment to be targeted or the message to be conveyed; instead, Zuckerman told Leebove the purpose, content, and target membership for the flyer he wanted and directed Leebove to prepare it.
On September 30, we produced a CD-Rom containing the portion of the IBT membership list recorded on TITAN to Brian Kildee, identified to us as a volunteer for the Hoffa campaign. However, we failed first to obtain from candidates Hoffa and Keegel the affidavits required by Article VII, Section 3. On October 19, we wrote David Hoffa, requesting that he forward the required affidavits. Hoffa did not respond to this request. We wrote him again on October 28, repeating the request for the affidavits. Hoffa has not responded to this request.
The Hoffa campaign's Thompson conceded that he released the membership list to Allied Technologies without obtaining an affidavit from that firm promising not to retain copies or to allow third parties to inspect or copy the list. However, he stated that a written contract between the campaign and the vendor that required the vendor to maintain confidentiality.
Further, Thompson engaged Mitchell Research and produced the phone-matched list directly to that firm rather than requesting that we deliver to Mitchell a random sampling of the Local 89 membership. Moreover, Thompson produced the phone-matched list to Mitchell without first obtaining the required affidavit.
Analysis
Article VII, Section 3(a) permits access to and use of membership lists by candidates for International office on the following terms:
The Election Supervisor is authorized to release a copy of the appropriate membership list to an accredited or nominated candidate for International office forty-five (45) days before the date for mailing of ballots for an election for Convention delegates and/or alternate delegates or for the election of International Officers. 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.
Thornsberry, through his counsel Barbara Harvey, contends that Hoffa 2006 violated this provision in the following respects:
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The membership list was used to influence voter opinion in the local union election. Therefore, Hoffa 2006 violated the Rules' requirement that the list be "used solely to advance the accredited … candidate's campaign for nomination and/or election." In particular, Thornsberry through Harvey argues that the activity of the polling firm constituted partisan "phone banking" because the questions critical of Thornsberry were intended to influence future voter action in the local union officer election rather than to measure voter opinion in the completed delegate election. Further, the protester argues that conducting the poll after the delegate election but before the local officer election reflects a deliberate strategy to use the poll to promote the ZB slate and have it win the local union election over the UR&F slate that won the delegate election. |
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The membership list was used to find out members' secret ballot vote. Thornsberry through Harvey argues that each respondent would have known that the Hoffa campaign alone had the coin to undertake a canvass and would have felt compelled to answer the question or suffer adverse consequences for not answering. |
The Hoffa campaign rejects this analysis. Through David Hoffa, it observes that delegates "aligned with Hoffa were soundly defeated in this predominantly UPS local." The poll's purpose, therefore, "was to ascertain the issues that influenced voters in Local 89 so that the accredited International Officer candidates would be in a position to address those issues in Local 89 and other locals as the International Officer election proceeds."
Alleged misuse of membership lists has been addressed under a previous version of the Rules. Thus, in Hoffa, P770 (1996), the Election Officer held that the Carey campaign violated this provision by using a membership list to influence the results of a local union election. In Hoffa, delegate and local union elections at a particular local were separated by about three weeks. The Carey-aligned slate lost in the delegate election. Thereafter, in the local union election, the Carey campaign permitted use of the membership list it had obtained from the Election Officer to run a phone bank operation for the slate aligned with it. The Carey campaign justified this use as permitted under the Rules, stating that "having the pro-Carey candidates win the local officer election would directly 'advanc[e Carey's] campaign for nomination and/or election,' a purpose authorized by the Election Rules." The Election Officer rejected this argument, writing:
In this matter, information from Mr. Carey's list was supplied to a phone bank to support campaigning by candidates for local union office. The script of the message did not mention Mr. Carey at all. Thus, the use of the list was solely for the purpose of aiding candidates in a local union officer election. It had no connection to the International election, except as the Carey Campaign loosely argues: "the election of pro-Carey local union officers at Local 743 would have … pro-Carey candidacy ramifications for the general election." Even if true, it is impossible to square the vagueness of such an interpretation of the standard with the elaborate restrictions and safeguards in Article [VII], Section 3.
In reaching this holding, the Election Officer articulated six principles governing use of membership lists by accredited candidates. Because of the importance of this issue in the present context, and to refresh all candidates and other interested parties on these fundamental principles, we reprint them here:
(1) The "accredited or nominated candidate for International office" who obtains a membership list from the Election Officer is personally responsible for its maintenance and use. The section provides for the transmission of lists to the candidates themselves. It further requires the candidates to sign an affidavit swearing not to provide the list to third parties and not to permit third parties to inspect or copy it.
(2) Candidates may appoint agents to handle and use lists for legitimate purposes. As a practical matter, the Rules could not require International candidates to perform all list functions generally. In Cipriani, P420 (March 1, 1996), aff'd 96 EAM 123 (March 13, 1996), the Election Officer found that "dissemination of the list may only be made to agents of the candidates - that is, to persons appointed by the candidate for this purpose, who have the specific authority to act for the candidate in connection with the list." Such agents may be individuals designated for the purpose of handling the list, such as a campaign manager. Agency relationships may also be created with mail houses or computer firms to convert portions of the list into labels, in which case the Election Officer requires such agents to execute affidavits swearing to observe appropriate controls and safeguards, similar to the affidavit that the Election Officer requires from the International candidate under the Rules.
(3) "No membership list may be used for any purpose other than advancing the accredited or nominated candidate's campaign for nomination and/or election." This provision restricts use of the list to activities that directly support the International candidate (except as allowed by the following sentence of the section, discussed next). Thus, the Election Officer found a violation in Baudo, P702 (May 10, 1996), where an accredited International candidate conveyed portions of his list to an unaccredited candidate as his agent, who then improperly used the information to campaign for himself. As an unaccredited candidate, he was not entitled under the Rules to receive and use the list personally. As agent for the accredited candidate, he was bound by his agency and the Rules to use the list only for the purpose of directly supporting the accredited candidate.
(4) "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." This is an exception to the preceding sentence of the section, and it allows International candidates to use their lists to support delegate election candidates if, in the International candidate's judgment, such support may advance the International candidate's campaign. As explained in Cipriani, the practice during the 1990-1991 International election was not to subject that judgment to review. See, e.g., Dalton, P397 (February 15, 1991), aff'd, 91 EAM 79 (February 27, 1991) ("if an accredited candidate decides that release of membership lists to non-committed candidates would further his/her campaign, then so be it"). Thus, the Election Officer does not require delegate election candidates receiving such support to campaign directly for the International candidate. Kent, P783 (June 4, 1996) (not a violation for delegate candidate as agent for International candidate "to advance [International candidate's] campaign by campaigning on behalf of himself and his slate in the delegate election"). Review is confined to ensuring that such activity entails no improper dissemination of membership list information. See, e.g., Miraglio, P658 (April 4, 1996) (no improper dissemination found), aff'd, 96 EAM 177 (April 24, 1996).
(5) All uses of lists must be strictly controlled to prevent dissemination. For example, a common method in making campaign mailings is for an International candidate to provide an agent, such as a mail house, with address labels that are consumed in the mailing. See, e.g., Coburn, P748 (May 7, 1996); Furtado, P705 (April 16, 1996). In any event, all information from a list remaining after an activity is completed must be recovered. In Cipriani, the Election Officer recognized that the campaign volunteers at a telephone bank may have to possess portions of a list during the operation. However, "the accredited candidate and his/her intermediate agents (i.e., delegate/alternate candidates) remain responsible for instructing all volunteers in the requirements imposed by the rule and scrupulously recovering all portions of the list from the volunteers."
(6) The liability of an International candidate for dissemination or misuse of his/her list is strict. See, Cipriani; Baudo. Thus, an International candidate is automatically liable for any dissemination or misuse of a list by his/her agent, regardless of the International candidate's actual knowledge or involvement. Strict liability is intended to caution International candidates to treat the requirements of Article [VII], Section 3 seriously and to choose agents carefully.
The sole change in the text of the governing rule from 1996 to present is the elimination of its final sentence, which stated that "[a] violation of this paragraph is punishable by contempt, pursuant to the Opinion and Order of the United States District Court for the Southern District of New York (Hon. David N. Edelstein), dated August 22, 1995." That sentence related to implementation of the Election Officer provisions of the Consent Decree in the 1996 IBT international officer election. The deletion of the sentence in the current Rules does not signal that the parties intended to relax restrictions on the handling of membership lists.
On the facts presented here, we find that the Mitchell Research poll was conducted as a post-election poll to identify respondents' reasons for voting as they did in the delegate election; it was not conducted in whole or part to influence their votes in the local union election. In this respect, the poll met the Rules' requirement that the list be used solely to advance the accredited candidates' candidacy.
The protestor cites the poll's questions that were negative to Thornsberry as proof that the effort, in its essence, constituted a "push poll." The protestor asserts that the questions providing unfavorable information about Thornsberry stated falsehoods at a critical time in advance of the local union election and were intended to push voters away from Thornsberry and to Zuckerman. In particular, the protestor argues that Thornsberry and the UR&F slate have never stated that members employed at UPS should be pulled from the Central States funds.
We reject this argument. The National Council of Public Polls, an association of mainstream polling organizations, defines "push poll" as -
a telemarketing technique in which telephone calls are used to canvass vast numbers of potential voters, feeding them false and damaging "information" about a candidate under the guise of taking a poll to see how this "information" affects voter preferences. In fact, the intent is to "push" the voters away from one candidate and toward the opposing candidate. This is clearly political telemarketing, using innuendo and, in many cases, clearly false information to influence voters; there is no intent to conduct research.
The survey here cannot fairly be characterized as a "push poll." First, although questions 30 and 31 stated information that was unfavorable to Thornsberry, questions 32 and 33 stated information similarly unfavorable to Zuckerman. This fact alone destroys the suggestion that the poll was intended to establish support in the local union election for Zuckerman and undermine it for Thornsberry. Indeed, Thornsberry, as a respondent in the poll, had first-hand knowledge of the fact that questions unfavorable to both Zuckerman and him were asked, yet we were required to expend investigative resources to verify what Thornsberry already knew and to dispel the argument advanced by his counsel that the poll was undertaken to attack Thornsberry.8
Moreover, the poll script offered substantial evidence that it sought only to identify the issues that caused the Hoffa-aligned slate to lose the delegate election. Questions 3, 34, 35, 36, and 39 referred expressly to the recently conducted delegate election; no reference was made to the upcoming local union election. While respondents were asked their "impressions" of Zuckerman, Bolton, Thornsberry and Darrell Hall, all of whom are candidates in the local union election, all were candidates in the delegate election as well. Finally, although respondents were asked how they viewed Zuckerman's performance as local president, they were not asked whether he should be reelected to that post. The data this poll generated would undeniably be of use to the Hoffa campaign in assessing how to run its campaign, especially in large local unions with diverse industries and a substantial UPS presence. Moreover, the data would assist the campaign in assessing whether voters rejected Zuckerman as a delegate candidate because of his alignment with Hoffa or because of his job performance as local president.
Second, the timing of the poll, on the first three days of November, came four days after the tally of ballots in the delegate election and some six weeks before the walk-in portion of the local officer election, when the bulk of ballots will be cast. The timing convinces us that the Hoffa campaign sought to measure the attitudes that motivated voters in the delegate election at a time when those attitudes were fresh and before they were influenced unduly by the campaign rhetoric of the local union election.
Third, the size of the polling sample supports the Hoffa campaign's submission that the poll was conducted for research purposes rather than to influence the results of the local union election. At 300 respondents in a local union of roughly 16,000 members, the poll did not "canvass vast numbers of potential voters" as a "push poll" might.
We might view the purpose of the poll as impermissible had the Hoffa campaign conducted it much closer in time to balloting in the local union election, referred to that election in the poll's script, canvassed a substantially larger segment of the membership, and formulated questions that supported its aligned candidate and attacked the candidate it opposed. This poll did none of these things. For these reasons, we find that the act of polling and the content of the poll did not violate the Rules because they did not use of membership list "for any purpose other than advancing the accredited" candidates' campaign.
Although the protest did not allege it, we also examined whether the results of the poll were used in the local union campaign for, while the Rules expressly prohibit use of the membership list for a purpose other than advancing the candidacy of the accredited candidate, they also implicitly prohibit use of information derived from that membership list. On this point, our investigation found no evidence that the results of the poll were communicated to the ZB slate.
This finding does not dispose completely of the issue whether polling data may have been used for the benefit of the ZB slate in the local union election. Leebove worked for both Hoffa 2006 and for the ZB slate. As a consultant to the Hoffa campaign with access to the membership list, Leebove has a Rules-based duty to insure that the list is not "used for any purpose other than advancing [Hoffa or Keegel's] campaign for nomination and/or election." As a consultant to the ZB campaign for local union office, Leebove was engaged to provide advice on campaign strategy. In that context, about one week after he received the poll results, Leebove prepared a campaign flyer for the Local 89 officer election that targeted a particular segment of the Local 89 membership that the poll results suggested might be receptive to such campaigning.
Had Leebove prepared the flyer based solely on his knowledge of the poll results, even though he never communicated those results to Zuckerman, that would violate the Rules by using information derived from the membership list for a purpose other than advancing the candidacies of Hoffa or Keegel. However, we also find, based on Zuckerman's years of experience in a leadership capacity in Local 89 and for lack of evidence to the contrary, that Zuckerman already was aware that this particular segment could be reached with targeted campaigning and, from his own knowledge, instructed Leebove to prepare the flyer. For this reason, we cannot conclude that the membership list was used even indirectly to advance the ZB slate's campaign in violation of the Rules. Accordingly, we DENY the protest in this respect.
The protestor argues that, to avoid violation of the Rules, the poll should either have been conducted earlier, during the delegate election campaign, or later, after the tally of ballots in the local union election. An earlier poll would, according to the protestor, pass muster under the Rules because its results could legitimately have been used to assist the Hoffa-aligned ZB slate. A later poll, after the conclusion of the local union election, would avoid any taint to that election that the poll might introduce.
Our role is to enforce the Rules, not to identify the optimal time that a campaign may exercise its rights under the Rules. A poll conducted before voting occurred in the delegate election would not indicate why members voted the way they did. Likewise, a poll conducted nearly two months after the delegate election would be of little use because the passage of time and the intervening local union election would cloud the memories of those members.
For these reasons, we conclude that the poll conducted November 1 through 3 did not violate the Rules because it was undertaken to assess opinions that the Hoffa campaign may use to achieve election of the Hoffa-Keegel slate. Accordingly, we DENY the protest in this regard.
However, we find that the Hoffa campaign violated Article VII, Section 3 of the Rules in its handling of the membership list. As indicated in Hoffa, supra, an accredited candidate to whom a membership list has been entrusted is personally responsible for its maintenance and use. The Rules require that the accredited candidate himself must sign an affidavit swearing to use the list solely to advance his own campaign for nomination and/or election and not to provide the list to third parties or permit third parties to inspect or copy it. Here, neither James Hoffa nor Thomas Keegel provided the required affidavit. As indicated previously, we erred in producing the membership list to an agent of the Hoffa campaign without first obtaining the required affidavits. After discovery of our error, we twice sought the affidavits from counsel for the campaign. However, campaign counsel has neither supplied the affidavits nor otherwise responded to our requests. We find this failure to produce the affidavits unacceptable.
Further, while the Hoffa campaign permissibly engaged Allied Technologies to produce telephone numbers for the Local 89 membership, it did not require that vendor to execute an affidavit swearing to observe appropriate controls and safeguards, as required by Hoffa, supra. The written contract between the campaign and the vendor provides some safeguards against misuse, but the obligations of the contract only run between Hoffa 2006 and Allied. The Rules require an affidavit submission so that a promise to comply is made under oath to the Election Supervisor. The vendor, like the candidate, must promise under oath to comply with restrictions on use of the list and is subject to sanctions for violation of that oath.
Finally, the Hoffa campaign violated the Rules by providing the membership list directly to Mitchell Research, the polling firm. A separate provision governs opinion polling of the type undertaken here, viz.
An opinion polling entity working for any accredited or nominated International Officer candidate has the right to obtain from the International Union a random sampling of the names, addresses and telephone numbers of members of the Union or any portion or segment thereof for the purpose of conducting opinion polling. The opinion polling entity shall not reveal the list or any portion thereof to any candidate or candidate's campaign organization or any person not conducting the opinion poll. Such list shall not be disclosed or used for any purpose other than conducting the opinion poll.
The request for such list shall be made to the Election Supervisor, who shall obtain the list from the International Union. The Election Supervisor shall not reveal the name(s) of the candidates on whose behalf the list is requested. The International Union shall comply with any request of the Election Supervisor within five (5) days. No such list shall be released by the Election Supervisor prior to obtaining adequate assurance from the opinion polling entity that it will comply with all non-disclosure and non-use provisions of this section.
Article VII, Section 3(b).
The Hoffa campaign bypassed this provision by supplying the phone-matched membership list directly to the polling firm. The danger inherent in proceeding as the campaign did is that, in fulfilling its obligation to recover all portions of the membership list from the polling firm, its agent-vendor, after the purpose of the agency has been completed, the campaign will acquire data indicating how individual, named respondents answered the poll's questions, including the question as to how the respondent voted in the delegate election. Whether supplying the campaign with raw individualized data - including voter responses on their ballot choices - would violate the Rules need not be determined here because we find it did not occur.
The Hoffa campaign's provision of the list directly to Mitchell Research, instead of following the procedure set out in Article VII, Section 3(b) of the Rules, is a serious violation. The Rules do not tolerate the careless handling of the membership list exhibited here. Because the Hoffa campaign failed its obligation to provide to us and obtain from its vendors the affidavits required by Article VII, Section 3(a), and because it supplied a polling firm with a membership list in violation of Article VII, Section 3(b), we GRANT this portion of 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 the Hoffa campaign, within three business days of receipt of this decision, to supply the affidavits of James P. Hoffa and Thomas Keegel that are required by Article VII, Section 3(a). Should the campaign fail to do so within this time frame, we order it to return the original disc and all copies it has made of the membership list we provided it on September 30.
We further order the Hoffa campaign, within the same time frame, to obtain and supply to us the affidavits required under Election Officer precedent from its vendors.
We further order that Mitchell Research is prohibited from allowing the Hoffa campaign, or any agent thereof, access to information that indicates how particular identified respondents answered the questions of the poll it conducted in behalf of the Hoffa campaign. Mitchell Research may permit such access to the aggregate statistical data it accumulated, provided that the data cannot be used to identify individuals who responded to the poll.
Finally, we order the Hoffa campaign to cease and desist from further violations of the rule governing maintenance and use of the membership list entrusted to its accredited candidates.
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. 20007-5135, 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 32
1. The list we supplied had previously been produced to us by the IBT and consisted of the membership information appearing on TITAN, in the form of member name, address, local union number, and employer. The great bulk of Teamsters members appears on TITAN. However, several locals do not participate in TITAN, and the membership lists of GCC, BMWE, and BLET are maintained separately. Membership lists for the non-TITAN locals, the GCC, and the two Rail Conference Divisions were not supplied to the Hoffa campaign on September 30 because the IBT had not produced them to us. We now have these additional lists but, for the reasons articulated below, we have not produced them to the Hoffa campaign.
2. Question 9 read: "The current president is Fred Zuckerman. How would you rate the job that Local 89 President Fred Zuckerman is doing[?] [E]xcellent, good, only fair, or poor?"
3. The poll-takers had instructions to rotate the order in which they read the list of names to respondents. Presumably, the names were rotated so that the responses, considered collectively, would not be influenced by the names being read in an unvarying sequence.
4. The poll-takers were instructed to rotate the order in which they read this list of issues to respondents.
5. The poll-takers were instructed to rotate the sequence in which they asked questions 30-33.
6. The script listed the following choices: "UPS fulltime, UPS parttime, Master freight, Other trucking, Industrial, Grocery, Carhaul, Some other industry."
7. Two witnesses recalled being asked all four of these questions; another recalled one negative question about Thornsberry and two about Zuckerman; one recalled a negative question about Thornsberry and no negative questions about Zuckerman.
8. The instructions to rotate the order of lists of issues and questions provide further support for the finding that the poll was not a "push poll." Rotation of issues shows that the poll-taker wanted to produce a body of data free from bias that could be generated by sequencing statements in a way to persuade the respondent to follow a particular course of action later.
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
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Mitchell Research
314 Evergreen, Suite B
East Lansing, MI 48823
steve@mitchellresearch.net
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fzuckerman@teamsters89.com
Robert Colone
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
rmcolone@teamsters89.com
David Thornsberry
785 Kingswood Drive
Taylorsville, KY 40071
davidthorny@msn.com
United Rank & File Slate
P.O. Box 991175
Louisville, KY 40269-1175
Rankandfile2005@msn.com
Ann Curry Thompson
Kelman Loria, PLLC
660 Woodward Avenue, Suite 2300
Detroit, MI 48226
acthom@kelmanloria.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com