IN RE: STEFAN OSTRACH, Protestor.
Protest Decision 2005 ESD 39
Issued: December 21, 2005
OES Case No. P-05-045-120605-HQ
Stefan Ostrach, a member of Local Union 206 and treasurer of the Tom Leedham Strong Contracts, Good Pensions slate, 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 the Hoffa 2006 campaign violated the Rules by circulating slate accreditation petitions for individual candidates who are not part of a slate.
Election Supervisor representative Steven R. Newmark investigated this protest.
Findings of Fact
The Hoffa campaign filed a slate declaration form with our office on August 17, 2005 listing James P. Hoffa and C. Thomas Keegel as slate members. In response to our decision in Ostrach, 2005 ESD 29 (December 5, 2005), the campaign filed an amended slate declaration form on December 9 changing the identity of the campaign treasurer; no candidates were added to the slate by this amendment and no additional slate declaration forms have been submitted on behalf of the campaign.
Accreditation petitions listing Hoffa and Keegel as candidates for union-wide office were submitted to our office on August 31, 2005; we accredited these candidates on September 13.
By a memorandum dated November 5, 2005 appearing on Hoffa 2006 letterhead and posted on its website, candidates Hoffa and Keegel announced that "we are now kicking off a Petition Drive to accredit regional Hoffa-Keegel candidates." The memo detailed "all the information you should need to gather signatures from Hoffa-Keegel 2006 Slate supporters in your area." In particular, the memo specified that "for the Hoffa-Keegel 2006 Slate to become accredited we must gather signatures from 2.5% of the general International membership. To show the support and strength of the Hoffa-Keegel 2006 Slate regional candidates we would like to gather significantly more signatures."
Accreditation petitions may be circulated only on the two forms approved by the Election Supervisor: Form 5 (individual candidate) and Form 16 (slate of candidates).1 Form 5, the accreditation petition form for individual candidates, has a space to insert one candidate's name, the local union to which the candidate belongs, and the office the candidate seeks. Below that there are 15 lines for petition signatures. The notice at the top of the form states: "This is a petition to have the person listed below declared to be an 'Accredited Candidate' for the IBT International Union Office listed below."
Form 16, the accreditation petition form for candidates running on a slate, has space to insert 14 candidate names (with the local union to which each candidate belongs and the office each one seeks). Below that there are 14 lines for petition signatures. The notice at the top of the form states: "This is a petition to have each person listed on the slate below declared to be an 'Accredited Candidate' for the IBT International Union Office listed next to their name." Form 16 also has space at the top to insert "Name of Slate (Optional)."
Although to date, the Hoffa campaign has filed slate declaration forms listing only Hoffa and Keegel as members of the Hoffa 2006 slate, its November 5 cover memo for slate petition forms announced a drive to accredit "Hoffa-Keegel 2006 Slate regional candidates." Separate slate petition forms were made available for each of the U.S. regions of the IBT.2 Thus, a slate petition form bearing a slate name "Hoffa 2006 - East" listed Jack Cipriani and John Murphy as candidates for Eastern Region vice-president. A slate petition form bearing a slate name "Hoffa 2006 - South" listed Tyson Johnson and Ken Wood as candidates for Southern Region vice-president and Henry Perry as candidate for trustee. A slate petition form bearing a slate name "Hoffa 2006 - Central" listed Pat Flynn and Walt Lytle as candidates for Central Region vice-president. Finally, a slate petition form bearing a slate name "Hoffa 2006 - West" listed Al Hobart, Chuck Mack, and Jim Santangelo as candidates for Western Region vice-president. All of these slate petition forms also listed Carl Haynes, Randy Cammack, Ralph Taurone, Fred Gegare, and Ken Hall as candidates for at-large vice-president.
Counsel for the Hoffa campaign confirmed in a December 7 letter response to the protest that, "[w]hile petitions for various candidates have indeed been circulated as indicated on the Hoffa 2006 website, the only Hoffa-related existing Slate Declaration Form is the one currently listing only Mr. Hoffa and Mr. Keegel as being on the Hoffa-Keegel 2006 Slate. . . . We understand that these petitioners are likely to be submitting signed Slate Declaration(s) along with their petitions by the December 15 deadline."
On December 15, Hoffa 2006 campaign manager Todd Thompson delivered filled out Form 16 petitions to our office. In addition to the petition forms appearing on the Hoffa campaign's website described above, Thompson delivered completed Form 16 petitions for Canadian candidates Robert Bouvier, Tom Fraser, and Don McGill and a second Western Region form listing Hobart, Mack and Santangelo as Western Region vice-president candidates and three of the five candidates for at-large vice-president previously mentioned.
To date no slate declaration form has been filed identifying any of the candidates on the petitions the Hoffa campaign submitted as members of a slate, whether "Hoffa-related" or otherwise. Further, Tyson Johnson copied the Election Supervisor on a December 12, 2005 letter addressed to James P. Hoffa in which Johnson stated that he is a candidate for IBT General President and that "many members of the General Executive Board . . . are joining me to form a slate in the 2006 Election . . . ."
Analysis
Article X of the Rules provides that "[a] candidate for any International Officer position may be certified by the Election Supervisor as an accredited candidate, and thereby obtain access to membership lists pursuant to Article VII, Sections 2 and 3 of the Rules and have his/her campaign literature published in the IBT Magazines pursuant to Article VII, Section 10 of the Rules …"
To become accredited, a candidate "must obtain signatures on petitions of at least two and a half percent (2.5%) of the membership of the relevant membership pool (i.e., candidates running for union-wide office must obtain signatures on petitions of two and a half percent (2.5%) of the union-wide membership, while candidates running for any regional office must obtain signatures on petitions of two and a half percent (2.5%) of the membership of the particular region in which they are a candidate)." Article X, Section 1.
The Rules describe the petition requirements as follows:
2. The Petition
(a) Such petitions may only be circulated by a member in good standing and after the effective date of the Rules. The petition shall include the following:
(1) Identification of the candidate(s) by name, Local Union number(s) and title of office(s) sought;
(2) Space for each signatory to sign his/her name, to print his/her name, and to list his/her Local Union number and Social Security number; and
(3) Space at the bottom for each circulator to state his/her name, Local Union number and Social Security number and to certify the validity and accuracy of the petition's contents.(b) Members of a slate of candidates formed in accordance with Article VIII of the Rules may circulate a single petition for some or all of the members of the slate. Such petitions may identify the slate by name or title. However, no slate petition shall include regional Vice President candidates from more than one (1) region.
Article VIII of the Rules permits candidates to form slates, and describes the exclusive procedure for documenting the formation of a slate:
(b) To form a slate, there shall be mutual consent between and among all candidates running on the slate. Such mutual consent shall be evidenced by the signing of a declaration by all members of the slate, giving the position that each candidate seeks and the name, if any, of the slate to be formed. Slate declaration forms for . . . International Officer nominations and elections shall be submitted to the Election Supervisor. Amended declarations may be submitted adding additional candidates, provided that the deadlines specified in Subsection (c) below are met.
(c) . . . . In the case of International Officer nominations and elections, such slate declarations shall be filed at the earliest possible date but in no event later than August 31, 2006 . . . .
The Rules further provide that "[o]nce a candidate declares his/her intent to run as a member of a slate, he/she may not retract such declaration." Article VIII, Section 2(a).
The protest alleged that the petitions the Hoffa campaign circulated violated the Rules in two respects. First, the protest contends that slate accreditation petitions may be circulated only for slates properly formed under Article VIII of the Rules. The protest further contends that any slate petition that is circulated must contain all members of the slate.
As indicated above, pre-convention accreditation makes available two important benefits: publication of the candidate's literature in Teamster and Teamster Canada, and access to IBT membership lists. The Rules do not make these benefits available to any self-declared candidate; rather, only those candidates who have demonstrated that they enjoy substantial support among the membership may avail themselves of these benefits. Petition signatures are the sole means the Rules provide for a candidate to demonstrate such support.
A. Status of Form 16 Petitions Listing Candidates
Not Named on Any Slate Declaration
A signature on a Form 16 petition (slate of candidates) counts as support for each and all the candidates listed on the petition. When candidates solicit member support using Form 16, the solicited member knows, without any ambiguity, that all of the listed candidates have mutually pledged to run for International Office on a slate. The solicited member presented with a Form 16 petition cannot select among the listed candidates and sign for fewer than all of them; equally, a group circulating a Form 16 petition solicits signatures jointly for all listed candidates and cannot lure signature support on the basis of a name not actually bound to the joint effort.
Nothing in the Rules permits unaffiliated candidates, i.e., candidates who have not formed a slate, to solicit signatures jointly on the same petition. Facts learned during this protest investigation demonstrate why a petition listing two or more candidates is allowed only for slates. The Hoffa 2006-South petitions list Tyson Johnson as a candidate for Southern Region Vice-President. Johnson's name was first on a list of eight candidates. IBT members signing that petition were recording their support for each and all of those candidates on the explicit representation that they belonged to a slate. The Office of the Election Supervisor has no evidence of such a slate, however, and Johnson's December 12, 2005 letter raises questions about the existence of the slate "named" on the petition. There is no way to know what support would have been, or what signatures would have been obtained, if the accreditation petition had different names on it or if the signers had known that a candidate for whom support was solicited actually was not a member of the slate. Thus, signatures collected on a Form 16 petition cannot be counted towards candidate accreditation unless there is a slate declaration showing mutual assent among the candidates that is consistent with the slate representation made by the joint solicitation of member support.
Responding to the protest, counsel for the Hoffa campaign argued that "there is absolutely nothing wrong with circulating petitions without first joining any particular slate," and pointed out that the Rules set August 31, 2006 as the outside deadline for filing a slate declaration. Counsel's argument is off point. August 31 is set as the deadline for slate declarations so that the Election Supervisor will have sufficient time to arrange for printing and preparation of ballot packages to be mailed out union-wide for the International Officer election. Here, the Hoffa campaign submitted Form 16 petitions presumably to take advantage of benefits the Rules make available in the pre-convention period only to accredited candidates on a slate. That a slate may be formed later is irrelevant to whether a slate presently exists that may receive these particular benefits in the pre-convention period. The Hoffa campaign now seeks to accredit groups of candidates on the basis of signatures jointly solicited without submitting the only evidence acceptable under the Rules of joint candidate action viz., a slate declaration. The candidates cannot purport to act as a slate when soliciting support from the IBT membership and then seek accreditation on the basis of that jointly solicited support without also submitting the evidence that they are, in fact, joined together. If these candidates want the benefit of accreditation on the basis of Form 16 petitions gathered in a purported joint effort, they must submit evidence of their joinder in the form of a slate declaration.
Counsel also suggested that the protest could be made moot because the petitioning candidates were "likely to be submitting signed Slate Declaration(s) along with their petitions by the December 15 deadline." No slate declarations were received from any of the candidates listed on the Hoffa campaign petitions, however, and the protest remains an actual controversy.
B. Status of Form 16 Petitions Listing Fewer
Than All Candidates on a Purported Slate
The protestor contends that Hoffa campaign Form 16 petitions were misleading because they did not contain the names of all candidates that could have been listed. The protestor cites as misleading the listing of International Trustee candidate Henry Perry, appearing on the Hoffa 2006-South petition but on none of the other petitions (an International Trustee may collect accreditation signatures union-wide), and the use of petitions in the Western region listing different at-large vice-presidential candidates.
The Rules allow members of a slate to circulate "a single petition for some or all of the members of the slate . . . ." Article X, Section 2(b). Nothing in the Rules requires a Form 16 petition to include all slate members who could possibly be listed.
C. Conclusion
We GRANT, in part, the first aspect of the protest and will not accredit any candidate for International office on the basis of the petitions submitted by the Hoffa campaign unless it is established that:
1) the candidate is a member of a slate duly formed and evidenced by a declaration as provided in Article VIII of the Rules; and
2) Form 16 petitions, listing only candidates who are members of the slate, were submitted by the December 15, 2005 deadline with more than the minimum number of signatures required for accreditation.3
Because the candidates listed on the petitions at issue in this protest have failed to submit evidence of slate formation, in the form of one or more slate declaration forms, we decline to accredit these candidates at this time.4
All parties are advised that pursuant to the IBT's magazine publication schedule January 5, 2006 is the deadline for accredited candidates to submit campaign literature for publication in the February 2006 issues of Teamster and Teamster Canada. Therefore, if the Hoffa campaign has material to submit to support a contention that a slate has been duly formed, such material must be submitted to the Office of the Election Supervisor by 5:00 p.m. on December 30, 2005 (with copies to be provided to the protestor), together with any argument on why such material complies with the Rules and supports the requested accreditation of slate candidates.
We DENY the second aspect of the protest. The Hoffa campaign Form 16 petitions are not invalid because they did not list all of the purported slate members who could have been listed on each form.
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 39
1 Article XIV of the Rules authorizes the Election Supervisor to promulgate forms for use in the election and "[u]nless the form states on its face that its use is mandatory, the form serves only as a model." Form 5 and Form 16 are mandatory forms: each states that "[a]ny candidate desiring Accreditation MUST use this form." These forms were also mandatory for candidates seeking pre-convention accreditation in IBT International Officer elections conducted under earlier versions of the Rules.
2 Before December 15, 2005, the November 5 memo and the form petitions could be viewed and printed from the Hoffa campaign's website, "www.hoffa2006.org."
3 While the Rules allow a candidate to seek accreditation based on any combination of Form 5 and Form 16 petitions, the Hoffa campaign did not submit any Form 5 petitions and the deadline for submitting pre-convention accreditation petitions has passed.
4 The candidates whose names appear on the Hoffa campaign Form 16 petitions, but who have not submitted any slate declarations are: Robert Bouvier, Randy Cammack, Jack Cipriani, Pat Flynn, Tom Fraser, Fred Gegare, Ken Hall, Carl Haynes, Al Hobart, Tyson Johnson, Walter Lytle, Chuck Mack, Don McGill, John Murphy, Henry Perry, Jim Santangelo, Ralph Taurone, and Ken Wood.
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
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Steven R. Newmark
Office of the Election Supervisor
1725 K Street, NW Suite 1400
Washington, DC 20005
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.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
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com