IN RE: TOM LEEDHAM SLATE, Protestor.
Protest Decision 2006 ESD 300
Issued: June 20, 2006
OES Case No. P-06-282-051006-FW
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"). The protest alleged that Election Services Corporation contributed to the Hoffa campaign by faxing Hoffa campaign literature to IBT locals, in violation of the Rules.
Election Supervisor representative Christine Mrak investigated this protest.
Findings of Fact
The protest alleged that Election Services Corporation ("ESC") sent an unsolicited 21 page fax to Local Union 324 and other local unions that contained Hoffa campaign material.
Investigation showed that such a fax was sent on April 25, 2006 to the principal officers of IBT Local Unions 14, 17, 19, 118, 174, 324, 330, 490, 653, 690, 693, 730, 745, 890, 974, and 984 to market ESC's election services. It was also sent to 9 local unions from other unions, including the UAW, Carpenters, Sheet Metal Workers, Food & Commercial Workers, Letter Carriers, Laborers and Operating Engineers. The marketing fax's cover page included a message that stated as follows:
We are currently doing 50 Teamsters delegate elections and are gearing up for the officer's [sic] elections.
Leadership elections can be complex and risky, and small unintentional mistakes can lead to problems. (Please read letter).
Election Services Corporation manages the election process end to end (from inception to it's [sic] tabulation). We also certify our results and will defend any challenge (our Union team has conducted over 6,000 Elections, not one has been overturned).
The second page of the marketing fax was the letter to which the cover page message referred. The letter, from Election Supervisor Richard Mark to David Hoffa dated April 19, 2006, concerned the ballot count being conducted the same date at Local Union 805. The letter recited the allegation by Hoffa that ballots had been mishandled at Local Union 805, advised that Hoffa's letter would be treated as a protest and investigated as such, and stated that the ballot count then underway would be completed. The marketing fax included a Hoffa 2006 "Campaign Update" account of the incident that was downloaded from the Hoffa 2006 website. The "Update" read as follows:
Local 805 Election Under Investigation for Massive Vote Fraud
Leedham/TDU Slate Member Sandy Pope Caught Removing Ballots from Post OfficeOn the heels of major losses in New York to the Hoffa campaign, Tom Leedham/TDU delegate candidate Sandy Pope of New York Local 805 was caught committing an outrageous election violation by removing ballots from the secure Post Office Box and stashing them in her local union office.
Pope, a candidate on the Leedham Slate for IBT Vice President and a national leader of TDU, improperly seized the ballots from the Post Office, in violation of federal labor law and the IBT Election Rules. Pope's actions were clearly done to help her win her delegate election and avoid another humiliating loss to the Hoffa 2006 Slate. The Hoffa Slate recently scored decisive victories at Local 237 and Local 804 in New York.
Yanko Fuentes, the pro-Hoffa rank and file candidate running against Pope has filed several election protests with the independent Election Supervisor that is running the IBT delegate and officer elections. Already the Election Supervisor has written to Fuentes to inform him that Pope violated her own local union election plan by early collection of the ballots and then keeping them in her office for several weeks. The Election Supervisor will now be conducting a full investigation of the chain of custody of the ballots and will not certify the election results until the investigation is complete.
The election violation by Pope continues a pattern of corrupt actions by the Leedham campaign at Local 805. Pope disrupted the initial delegates' election at the local by sending out ballots without return postage - causing new ballots to be mailed at significant cost to members.
"Sandy Pope is the poster girl for TDU and the so-called democracy movement in the Teamsters," said Fuentes. "Yet she has run one of the most corrupt and illegal elections in Teamster history. For three weeks Sandy had access to the names and addresses of every member that voted in this election. Who knows how many ballots of my supporters were thrown out by Sandy and her henchmen?" said Fuentes.
"This smells like the same kind of fraud that Ron Carey pulled when he illegally funneled $1 million dollars of our members' hard-earned dues money to his own reelection campaign in 1996," said Dan Kane, Sr., Eastern Region candidate for Vice President on the Hoffa 2006 Slate. "Leedham and Pope clearly learned one lesson from Carey - The election rules don't apply to them and their friends."
Leedham served as one of Carey's top lieutenants when the embezzlement scandal took place in 1996.
That the foregoing "Update" was campaign rhetoric was obvious from its placement on the Hoffa 2006 website. However, the marketing fax did not include any notation of the source of the article. Instead, under the heading "Campaign Updates," the sender of the ESC fax inserted a typewritten comment, "Thought this would interest you."
Earl Hurd, ESC's marketing vice president, stated that ESC obtained a list of IBT local unions with upcoming local union officer elections from the U.S. Department of Labor website. Hurd claimed that ESC regularly monitors the website to target local unions that might respond to its marketing. Hurd asserted that ESC obtained the Mark letter from the Election Office website. Hurd denied receiving a listing of local unions from the IBT or anyone affiliated with the IBT. Hurd conceded that the "Campaign Update" article appeared on the Hoffa website but asserted that he did not know that when he included it in the marketing fax. Hurd was unable to state where he got the article. When ESC received the instant protest, Hurd removed the "Campaign Update" article from ESC's marketing material.
Investigation found that the Mark letter is not posted on the OES website but instead can be found on the Hoffa 2006 website, www.hoffa2006.com, under the link "Leedham/TDU Slate Member Sandy Pope Caught Removing Ballots from Post Office." The marketing fax did not include our decision in Fuentes & Hoffa 2006, 2006 ESD 216 (April 28, 2006), aff'd, 06 EAM 32 (May 5, 2006), which found that clerical staff of Local Union 805 had retrieved voted ballots from the post office several times prior to the date ballots were tallied; the decision further found that Pope was unaware of such activity and, as a candidate, had properly excluded herself from any decisions or activity with respect to the conduct of the election.
Analysis
The Rules prohibit contributions by employers to any candidate. Thus:
No employer may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is [to] influence, positively or negatively, the election of a candidate. No candidate may accept or use any such contribution. These prohibitions are not limited to employers that have contracts with the Union; they extend to every employer, regardless of the nature of the business and include, but are not limited to, any political action organization that employs any staff; any nonprofit organization, such as a church or civic group that employs any staff; and any law firm or professional organization that employs any staff. These prohibitions extend beyond strictly monetary contributions made by an employer and include contributions or use of employer stationery, equipment, facilities and personnel.
Article XI, Section 1(b)(2).
The Rules define "campaign contribution" as "any direct or indirect contribution of money or other thing of value where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate for Convention delegate or alternate delegate or International Officer position." Definition 5. The definition expressly includes "[a]n endorsement or counter-endorsement by an individual, group of individuals, or entity." Id., subparagraph (f). Further, the definition includes "the making available for use of space, equipment, supplies or advertisements." Id., subparagraph (h).
The Rules define "employer" as "any individual, corporation, trust, organization or other entity that employs another, paying monetary or other compensation in exchange for that individual's services …" The term "employer" includes "not-for-profit employers, governmental and agricultural employers and all persons acting as agents of an employer in relation to an employee … [and] is not limited to an employer which has a collective bargaining agreement with the Union or which is the subject of an organizing campaign by the Union." Definition 17.
The Rules hold candidates "strictly liable to insure that each contribution received is permitted under these Rules. Prohibited contributions must be returned promptly. Within three days of the return of any contribution, the candidate or candidate's campaign returning the contribution shall provide to the Election Supervisor an affidavit identifying the original source and the date of the contribution being returned, the amount of the returned contribution, the person to whom or entity to which the contribution was returned and the date on which the contribution was returned." Article XI, Section 1(b)(13).
The strict liability the Rules place on candidates is emphasized by Article XI, Section 1(b)(14), viz.
Ignorance by a candidate, by a union and/or by an employer that union or employer funds or other resources were used to promote a candidacy shall not constitute a defense to an allegation of a violation of these Rules.
We find that the marketing fax ESC sent to local unions constituted a prohibited campaign contribution under the Rules. We carefully scrutinize vendor mailings to local unions during an election period to determine whether they constitute impermissible employer contributions to a candidate. In Hull, 2001 EAD 153 (February 10, 2001), aff'd, 01 EAM 37 (February 21, 2001), a vendor letter that extolled the accomplishments of the local union's principal officer and candidate for delegate was held to violate the Rules because it was sent during the critical pre-election period and went substantially beyond previous membership mailings by the vendor in championing the principal officer's accomplishments in securing the insurance benefit.
In this case, the ESC marketing fax contained Hoffa campaign literature that was critical of Leedham, the Leedham campaign, and a candidate on the Leedham slate, Sandy Pope. Including this document in its marketing material to IBT local unions appears to place ESC's endorsement behind the Hoffa campaign and to attack the Leedham campaign in the ongoing election. We further note that ESC sent to IBT local union officials campaign material that the Hoffa campaign would not be permitted to distribute in this fashion. The Rules do not permit such employer interference with the electoral process.
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 ESC to refrain from endorsing or attacking any candidate for any office under our Rules. We further order ESC to cease and desist from including in its communications with IBT members any material that supports or attacks any candidate for any office under our Rules. We further order ESC marketing vice president Earl Hurd to copy the notice attached to this decision onto ESC letterhead, sign it, and fax it to the IBT local unions identified in this decision, to all other IBT local unions, local union officials, joint council officials, and IBT International officers to whom it transmitted the marketing fax that contained the Hoffa campaign article. Hurd must complete this remedy within 3 working days of receipt of this decision. Within 2 working days after he has completed the remedy, he must supply us with his affidavit of compliance.
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. 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
2006 ESD 300
NOTICE TO ALL IBT LOCAL UNIONS AND THEIR MEMBERS
FROM ELECTION SERVICES CORPORATION
The Rules for the 2005-2006 IBT International Union Delegate and International Officer Election ("Rules") prohibit employers from endorsing or attacking the candidacy of any candidate.
Election Supervisor Richard W. Mark has found that Election Services Corporation, an employer, violated the Rules by including International officer candidate campaign material in marketing materials it faxed to a number of IBT local unions. The Election Supervisor has ordered Election Services Corporation to cease and desist from including in its communications with IBT members any material that supports or attacks any candidate for any office under the Rules. Election Services Corporation is faxing this notice to all IBT local unions that received the improper campaign material.
Election Services Corporation does not endorse any candidate for IBT International office or for office in any local union or other subordinate body of the IBT.
The Election Supervisor will not tolerate such employer interference in any election under the Rules.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with Richard W. Mark, Election Supervisor, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006, telephone: 888-IBT-2006, fax: 202-454-1501, email: electionsupervisor@ibtvote.org.
________________________________________
Earl Hurd, Vice President
Marketing
Election Services Corporation
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters.
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
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Marilyn Falik
Election Services Group
990 Stewart Avenue, Suite 500
Garden City, NY 11530
Earl Hurd, Vice President
Marketing
Election Services Group
990 Stewart Avenue, Suite 500
Garden City, NY 11530
Cliff Baker
Secretary-Treasurer, Local 324
2686 Portland Road NE
Salem, OR 97303
Christine M. Mrak, Esq.
2357 Hobart Avenue, SW
Seattle, WA 98116
cmm@wmblaw.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com