IN RE: HOFFA 2006, Protestor.
Protest Decision 2006 ESD 160
Issued: March 28, 2006
OES Case No. P-05-043-120505-AT
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 alleged that: (1) Don DiLeo obtained access to and copied or used confidential membership lists to mail a campaign letter to every Teamster member; (2) DiLeo used union funds and material to create, draft and mail the campaign letter; and (3) DiLeo knowingly created an impermissible expenditure of union funds and resources by mailing the letter to local union and joint council offices, where they would be opened by staff members being paid with union funds.
Election Supervisor representative J. Griffin Morgan investigated this protest.
Findings of Fact
Don DiLeo is president of Local Union 408 and Joint Council 73. On or about November 23, 2005, he mailed a letter, addressed "To Every Teamster Member," to approximately 25 union leaders announcing his intention to run for Eastern Region vice president. The letter was sent to principal officers and a few other local leaders at the addresses of the local union offices. The addresses were known to DiLeo and are also available from the IBT roster.
The letter was written, copied and mailed without using any union resources. The letter was drafted by DiLeo and Cliff Nolan during non-work time. Nolan is the PAC chairman and event coordinator for Joint Council 73
The letter was finalized by and printed from the office computer of Andrew Zazzali, Jr., Esq. of Zazzali, Fagella, Nowak, Kleinbaum & Friedman. The Zazzali firm is counsel for Local Union 408 and Joint Council 73. Zazzali offered to provide his services at no charge, but DiLeo insisted that he open a separate billing account and bill him personally for the services related to the campaign. The doc number at the bottom of the letter is from Zazzali's firm computer. Zazzali opened a separate file for the campaign with a separate billing account.
Nolan went to Staples office supply store and purchased stationery and envelopes with his personal credit card. He then made 100 copies of the letter and purchased a pen for DiLeo to use when signing the letter. Nolan paid for these purchases with cash. He provided our investigator with copies of receipts for all expenditures.
The letters were hand addressed by Tonya Ives at her home after hours. Ives is a part-time employee of Joint Council 73's PAC. She also works part time for Local Union 478. Ives volunteered to work on DiLeo's campaign when she heard he was going to be a candidate. She was later asked to address the envelopes. Nolan provided a list of approximately 25 names and addresses, along with the envelopes, which Ives took home and used to address the envelopes. The computers at the Joint Council office and the PAC office have the addresses of the local union officers and could have generated the envelopes in a matter of minutes, but they were not used.
The envelopes were addressed to local union officers at the addresses of the local union offices. There was no indication on the envelope that the content of the envelope was campaign material. Hoffa 2006 offered no evidence regarding who received the letters and who opened the mail.
Analysis
The Rules prohibit use of union resources in campaigning no matter how isolated or slight. Article VII, Section 12(c) provides:
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. ...
Further, Article XI, Section 1(b)(6) provides:
No Union funds or other things of value shall be used, directly or indirectly, to promote the candidacy of any individual. Union funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in campaign unless the Union is compensated at fair market value for such assistance, and unless all candidates are provided with equal access to such assistance and are advised in advanced, in writing, of the availability of such assistance. ...
Any use of union resources in campaigning is prohibited no matter how isolated or slight. Milligan, 2001 EAD 156 (February 12, 2001) (use of union office to gain access to employer premises); Richards, 2000 EAD 5 (August 1, 2000) (use of local's computer, paper, etc.); Yeakel, P762 (June 5, 1996) (barring display of campaign hats along with unions hats in union office); Miller, P504 (April 23, 1996) (violation where local made its office available to a campaign as a location to pick up a raffle prize); Olsen, P172 (November 1, 1995) (use of union telephone for three calls of short duration to assist in campaigning during work time a violation).
In this case, DiLeo did not obtain access to or use confidential membership lists to mail a campaign letter. Likewise, no union funds or material were used to create, draft or mail the campaign letters. Accordingly, we DENY the protest's first two allegations.
Although the campaign flyer here was sent in envelopes bearing the names of local union officers, the flyer itself was addressed to "Every Teamster Member." Because of this salutation, we regard the flyer as intended not merely for a limited audience of anticipated campaign loyalists but for the broad distribution that flyers placed on a campaign literature table might achieve. In this regard, DiLeo's flyer is distinguished from the flyer that was the subject of Hoffa 2006, 2005 ESD 12 (September 30, 2005), which we found violated the Rules in part because it was addressed and faxed to "Joint Council Officers."
Our advisory on campaign literature tables and bulletin boards instructs as follows:
Any literature distributed to locals must include a cover sheet with the following information: 1) the name and the address of the candidate or slate, 2) the candidate or slate representative to contact for purposes of charging any costs of reproduction (as discussed below), 3) a statement that union resources are not to be used for reproducing the literature (except for the first 50 copies as described below), 4) specific instructions as to how the slate wants the literature to be 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 the 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."
DiLeo's flyer as transmitted substantially complied with the first and second listed requirements. It failed to comply with the remaining requirements, however.
In his response to this protest, DiLeo wrote the following:
If the Election Supervisor determines that my notice of intention is "campaign literature" within the definition of the rules, and as such should have been placed on the literature tables of the various locals who received the literature, I will forward a written request to the prior addressees of the letter, requesting them to place my letter on their literature tables.
We adopt this suggestion as the appropriate resolution of this protest. Given DiLeo's attention to the smallest detail in insuring that union resources were not used in the production or distribution of his campaign flyer, we do not regard his failure to include the requisite disclaimer as an intentional or even careless omission. Accordingly, we direct DiLeo to follow through on his offer as quoted above and, on that basis, deem this protest RESOLVED.
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 160
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
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Don DiLeo, President
IBT Local Union 403
1907 Morris Avenue
Union, NJ 07083
J. Griffin "Griff" Morgan
Elliot, Pishko, Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com