IN RE: HOWARD RHINIER, Protestor.
Protest Decision 2006 ESD 126
Issued: March 4, 2006
OES Case Nos. P-06-143-021406-ME
Howard Rhinier, secretary-treasurer of Local Union 771, filed this pre-election protest on behalf of members of the "Unity Team Slate" 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 members of the Reform Slate improperly accessed the membership list of Local Union 771 to conduct a campaign mailing, in violation of the Rules.
Election Supervisor representatives William B. Kane and John Pegula investigated this protest.
Findings of Fact
The protestor alleged that members of the Reform Slate conducted a campaign mailing using membership addresses not obtained officially through Local Union 771.
Al Watrous, a candidate on the Reform Slate, told our investigator that he contacted Dan Lutz, campaign coordinator for the Leedham campaign, in January 2006 to request a list of mailing labels and telephone numbers for members of Local Union 771. Tom Leedham and other members of his slate were certified by the Election Supervisor as accredited candidates for International office on December 30, 2005, and thereafter Leedham was provided a copy of the complete IBT membership list. Watrous explained to Lutz that his slate supported the Leedham campaign. Once Watrous supplied an affidavit promising that the membership mailing labels and telephone numbers would be used only for purposes of the delegate election process, Lutz forwarded the mailing labels and telephone numbers for the Local Union 771 membership. The Watrous affidavit stated the following:
- I make this affidavit pursuant to Article VII, Section 3(a) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election.
- I recognize that no IBT membership list provided to me may be used for any purpose other than advancing the campaign to nominate and elect the Tom Leedham Strong Contracts, Good Pensions Slate.
- I will not use or permit use of the IBT membership list for any purpose other than advancing the campaign to nominate and elect the Tom Leedham Strong Contracts, Good Pensions Slate.
- I will not provide the list to any third party and I will not permit any third party to inspect or copy the list.
- I will not provide the list to a mailing house, automated telephone messaging service or any service providing [or] who is conducting campaign work unless they have completed an official Affidavit Regarding Membership List (Election Supervisor Form 21 - available at www.ibtvote.org).
The Reform Slate mailed its literature using the mailing labels supplied by the Leedham campaign on February 8, 2006.
Analysis
Article VII, Section 3 of the Rules authorizes the Election Supervisor "to release a copy of the [current IBT] membership list to an accredited or nominated candidate." The provision emphasizes the following:
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.
(Emphasis supplied.)
This rule finds its origins in U.S. v. IBT, 742 F.Supp. 94, 101 (S.D.N.Y. 1990); aff'd as modified, 931 F.2d 177 (2d Cir. 1991), where the District Court found that the traditional protection afforded a union membership list should be overridden in this case because extraordinary measures were necessary to effectuate the permanent injunction barring IBT association with organized crime. Id. 742 F. Supp. at 102. The Court found that release of the membership list in the election "furthers the interests of the IBT rank and file for the purpose of ensuring full, fair and free elections." Id. at 104. Further, the Court noted that such release would "only be to IBT members seeking office, minimizing any potential dangers." Id. The Court concluded, "Misuse of the election lists by candidates would be punishable upon pain of contempt." Id.
In response to the District Court's pronouncement, Election Officer Holland issued a campaign advisory permitting accredited and nominated candidates for International office access to the IBT membership list. The advisory required each candidate permitted access to the list to execute an affidavit promising to use the list only to advance his/her candidacy for International office. The advisory contemplated that the membership list would be used by an accredited candidate to support candidates for delegate and alternate delegate to the International convention who would, once elected, support that candidate. In Dalton, 91 Elec.App. 79 (SA)(February 27, 1991), the Independent Administrator held that the dissemination of the membership list to candidates for delegate pledged to Carey did not violate the 1990 91 Rules. The Independent Administrator further stated that release of the membership list to an uncommitted candidate did not violate the rule if the accredited candidate believed that such release would ultimately further his/her own campaign. The decision envisioned that candidates for delegate would have access to the list and made no mention of the requirement that only members of the campaign staff may have such access.
In Cipriani, P420 (March 4, 2006), aff'd, 96 EAM 123 (March 13, 1996), Election Officer Quindel concluded that an International candidate may, assuming the use of appropriate safeguards, allow the IBT membership list to be handled or used by the candidate's duly designated agents for the purpose of advancing the candidate's campaign. In Hoffa, P634 (April 3, 1996), the Election Officer found no violation to permit use of a membership list at a TDU phonebank operation to campaign for International officer candidate, where a proper affidavit was provided. In Baudo, P702 (May 10, 1996), the Election Officer noted that an accredited candidate for International office is clearly acting in his/her own interests by using the list to elect delegates who are pledged to or who, in the candidate's view, are likely to vote for that candidate's nomination, observing further that such usage is expressly recognized by the Rules.
In Bruno, 2001 EAD 174 (February 20, 2001), aff'd, 2001 EAM 44 (March 15, 2001), Election Administrator Wertheimer followed this consistent precedent that permits dissemination of a local union's membership list from an International Officer candidate to a supporter who is running for delegate or alternate at the local union. See also, Derey, 2001 EAD 233 (March 12, 2001) (use of membership list provided by accredited candidate for International office to candidate for delegate for phonebank operation is permitted); Keyser, 2001 EAD 236 (March 14, 2001) (use of membership list for campaign mailing in delegate election permitted); and Bolig, 2001 EAD 243 (March 20, 2001) (same).
We have followed this authority in Bennett, 2006 ESD 97 (February 24, 2006).
Here, our investigation showed that the list used by the Reform Slate for campaign purposes was obtained from the Leedham campaign. We further conclude that all elements of the provision governing use of the list have been satisfied, and that the list has not been used for any purpose other than advancing the Leedham candidacy.
Accordingly, we DENY this 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
885 Third Avenue, Suite 1000
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
2006 ESD 126
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
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
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Howard Rhinier, Secretary-Treasurer
Local Union 771
90 Peach Lane
Lancaster, PA 17601
Allen L. Watrous
218 South Sheridan Road
Newmanstown, PA 17073
Dan Lutz
P.O. Box 338
Brooklyn, NY 11215
John Pegula
1434 Greendale Drive
Pittsburgh, PA 15239
William B. Kane
242 Old Haymaker Road
Monroeville, PA 15146
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com