IN RE: HOFFA 2006, Protestor.
Protest Decision 2006 ESD 333
Issued: July 25, 2006
OES Case No. P-06-309-071906-HQ
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 the Leedham slate received an unfair advantage when it obtained a list of certified delegates from the Election Office that was not made available to the Hoffa campaign.
Election Supervisor representatives Steven R. Newmark and Jeffrey Ellison investigated this protest.
Findings of Fact and Analysis
This protest arose from our decision in Hoffa 2006, 2006 ESD 326 (July 17, 2006). In that case, the Hoffa campaign alleged that the Leedham campaign violated the Rules by mailing a campaign letter to certified delegates and alternate delegates using local union addresses without including a notice required by our Advisory on the Use of Literature Table or Bulletin Boards for the Distribution of Campaign Literature Inside Union Halls. Specifically, the Hoffa campaign alleged that the Leedham mailing was sent to 4 delegates and 2 alternate delegates from Local Union 75 using that local union's mailing address; the Hoffa campaign further alleged that the Leedham mailing was sent to Sonny Nardi, an alternate delegate from Local Union 416, using that local union's mailing address. The Hoffa campaign subsequently withdrew its allegation with respect to the delegates and alternate delegates from Local Union 75, after examining its copy of the list of certified delegates and alternate delegates and discovering that those individuals had listed the local union's address as their official contact address.
We denied the protest's allegation that the Leedham campaign violated the Rules by mailing to delegates and alternate delegates at local union addresses, holding as follows:
[T]he Leedham slate did not violate the Rules by mailing campaign literature to elected delegates and alternate delegates at the local union addresses they listed on their candidate information sheets. The Leedham mailing was not required to include the literature table disclaimer because the campaign literature was not intended for literature tables; instead, it was directed to elected local union representatives - delegates and alternate delegates - at the addresses they had listed for contact.
The investigation of that protest showed that "Hoffa requested and received from the IBT the list of names and addresses of certified delegates and alternate delegates that was made current by the Election Office on May 12, 2006, the second Friday of May. The Leedham campaign requested the certified delegate list on Friday, May 26, directly from the Election Office, rather than the IBT, as required by the Rules. Instead of directing the requestor to the IBT, however, the Election Office erroneously provided the list to the Leedham slate."
Hoffa 2006 appealed our decision in Hoffa 2006, supra. The appeal did not challenge the holding quoted above. Instead, it asserted that the Leedham slate obtained from our office a more current list than that provided by the IBT to the Hoffa campaign. According to the appeal, the list the Leedham campaign received on May 26 contained the names of 317 delegates and alternate delegates that were not on the May 12 list the Hoffa campaign received from the IBT. The next paragraph of the appeal letter asserted that the May 26 list contained names of 202 delegates and alternate delegates that were not included on the May 12 list, not 317 as the previous paragraph had claimed. The appeal further asserted that none of the 6 mailings the Hoffa campaign conducted among delegates and alternate delegates in the pre-convention period were mailed to "the 202 delegates/alternate delegates denied us." The appeal asserted, as a result, that "[e]qual access was denied" the Hoffa campaign.
The instant protest, filed the same day as the appeal of Hoffa 2006, supra, adopted the appeal letter by reference. However, where the appeal letter alternately asserted that the May 26 list the Leedham campaign received had first 317 and then 202 additional names, the protest stated that the Leedham campaign was "able to mail to 317 more delegates and alternates than we could have."
Under Article II, Section 16 of the Rules, the Election Supervisor has the responsibility to "certify the results" of local union delegate and alternate delegate elections, "where no timely protest of the election is filed, or upon completion of the protest and appeal procedure." By practice, the Election Supervisor posted on the OES website the list of certified delegates and alternate delegates, updating it weekly. The list identified each certified delegate and alternate delegate by name, local union number and date of certification. The first posting was made in January 2006. The list thereafter was updated weekly until the final update on June 22, 2006.
In the 2000-2001 election cycle, the weekly updates of certified delegates and alternate delegates made to the OES website included addresses at which the individuals could be contacted. Because of concern that the OES website should not make addresses of certified delegates and alternate delegates widely available, the practice was modified for the current election cycle to omit addresses of these individuals from the website listing of certified delegates and alternate delegates. The modification that eliminated addresses from the website had the effect of limiting the ability of local union members to contact the delegates and alternate delegates elected to represent them at the IBT convention. To balance the right of members to access their representatives with the desire to protect identifying information of those representatives, the following sentence was added to the heading for the website's listing of certified delegates and alternate delegates: "Any member who wishes to contact a delegate(s) and/or alternate delegate(s) representing the member's local can obtain contact information from the Office of the Election Supervisor (contact: Robert Heilman, tel. 888-428-2006 Toll Free.)"
Under Article VII, Section 4 of the Rules, "[e]ach accredited candidate for International office has the right to request and receive from the IBT a list of all certified delegates with corresponding addresses." This provision states that "an updated list [shall be] distributed each month thereafter on the second Friday of the month through June, 2006."
On January 31, 2006, the Hoffa campaign made written request to our office for the certified delegate list. We replied the next day, advising that the Rules specify that such requests be directed to the IBT. The Hoffa campaign then requested and obtained the certified list from the IBT in February and, the evidence suggests, in subsequent months. Relevant to this protest, investigation showed that the Hoffa campaign obtained a certified delegate and alternate delegate list from the IBT on or about May 12.
Two weeks later on May 26, the Leedham campaign requested the certified delegate list from our office. We supplied it. The Leedham request was made to Robert Heilman, the Election Office staff member to whom our website directed members seeking contact information for their local union's delegates and alternate delegates. Heilman conveyed the Leedham request to a senior staff member of our office, who directed Heilman to supply the list to the Leedham campaign. The senior staff member who authorized supplying the list to the Leedham campaign was not the senior staff member who, 4 months earlier, had directed the Hoffa campaign to obtain the certified list from the IBT. As we stated in Hoffa 2006, supra, the act of supplying the list to the Leedham campaign was wrong; the Leedham campaign should have been referred to the IBT for the list. Had our staff acted correctly, the Leedham campaign would have received the same list the Hoffa campaign received on May 12.
Investigation showed that the list we supplied to the Leedham campaign on May 26 ("the May 26 list") contained 133 delegates and 69 alternate delegates not listed on the May 12 list the Hoffa campaign obtained from the IBT ("the May 12 list"). The May 26 list was comprised of the names and addresses of all certified delegates and alternate delegates whose names appeared on the May 12 list plus the additional delegates and alternate delegates we certified on May 19 and 26.
On or about June 1, 2006, the Leedham campaign mailed a 2-page letter to all persons on the May 26 list. The letter, signed by Tom Leedham, "express[ed] my concerns about the direction of our union, share[d] some proposals, solicit[ed] your ideas, and ask[ed] for your support as a candidate for General President." The balance of the letter discussed Leedham's concerns about the IBT and some ideas for change; the letter did not again mention his candidacy for General President, the names or candidacies of the other members of his slate, nor did it request support for any such candidacies.
Also on or about June 1, the Hoffa campaign mailed the first of 6 pre-convention mailings to delegates and alternate delegates. The Hoffa campaign used the addresses from the May 12 list. In addition, according to its counsel, as the local union delegate elections "were certified, we started progressively mailing to persons using a cobbled up list created when we tried to match the new delegates with their addresses on the regular membership list we have."
Christie Bailey of the Hoffa campaign told our investigators that the campaign obtained addresses for most of the names of certified delegates and alternate delegates listed in the May 19 and May 26 website updates of certified delegates and alternate delegates from the IBT membership list the campaign had previously obtained. Bailey stated that the campaign could not match some names because those individuals were certified using nicknames that did not correspond to first names that appeared on the IBT membership list. Bailey further stated that, although the Hoffa campaign had supported winning slates of delegate candidates with mailings and automated telephone calls in several of the local unions certified on May 19 and 26, the campaign did not have names or contact information for most of those delegates and could not correspond with them.
In addition to the mailing the Hoffa campaign sent on or about June 1, Bailey stated that the Hoffa campaign sent 3 more mailings to certified delegates and alternate delegates during the week of June 6 through 13, using the May 12 list as supplemented by the delegates and alternate delegates we certified after May 12. On June 16, the Hoffa campaign obtained the June list of certified delegates and alternate delegates from the IBT. Bailey stated that the campaign conducted an additional 2 mailings on June 17. According to Bailey, these last mailings were not sent to all certified delegates and alternate delegates; instead, they were targeted to include individuals whose names did not appear on the May 12 list.
Most delegates and alternate delegates arrived at the Las Vegas convention site on Saturday, June 24, with a smaller number arriving the next day. Convention proceedings commenced on Monday, June 26. The first candidates for International office were nominated on Tuesday, June 27, with additional candidates nominated on Wednesday, June 28 and Thursday, June 29.
The Hoffa campaign conducted extensive outreach to delegates and alternate delegates at the convention site. According to counsel to the campaign, the campaign prepared, printed and distributed a daily "convention newsletter" on each of the 5 days of the convention. In addition, its supporters distributed 10 separate pieces of campaign material over the course of the week, which campaign counsel identified in the following terms:
1 - Welcome flyer - listed events
2 - 10,000 flyer
3 - Negative Leedham 1
4 - Negative Leedham 2
5 - Negative Leedham 3
6 - Hoffa Slate flyer
7 - Palmcard - reg[ional vice presidents]/trustee
8 - Palmcard - at-large [vice presidents]
9 - Palmcard - G[eneral] P[resident]/G[eneral] S[ecretary-]T[reasurer]
10 - Manifesto
Aside from campaign literature, the Hoffa campaign had an office, a campaign merchandise store, and a Harley-Davidson motorcycle raffle in the hallway that led to the registration area for delegates and alternate delegates. The campaign also had an office and campaign merchandise table immediately adjacent to the convention hall itself.
In addition to these campaign activities, the Hoffa campaign conducted receptions, breakfasts and rallies to energize its supporters and to influence those delegates who might not be committed.
The protest alleged that Election Office's act in supplying the Leedham campaign with the May 26 list likely affected the results of the secret-ballot elections held at the convention one month later to confirm floor nominations for the general election ballot. In particular, the campaign claimed that provision of the May 26 list had the effect of achieving the nominations of Tom Leedham, Chris Roos, and T.C. Bundrant, each of whom, according to the campaign, were nominated to the ballot "by an extremely thin margin." Leedham and Roos were the subjects of extensive efforts by the Hoffa campaign to undermine their support and prevent their nominations to the ballot. In contrast to the Hoffa campaign's extensive outreach to delegates, the Leedham campaign did not use the May 26 list to advocate for any candidate, with the single exception of the last dependent clause of the third sentence of Tom Leedham's letter of June 1 in which he "ask[ed] for your support as a candidate for General President."
The protest's allegation that the Hoffa campaign was denied access to the additional delegates and alternate delegates whose names appeared on the May 26 list is false, as established by the statements of Bailey and Hoffa campaign counsel proving that the campaign indeed had access to those persons, both by mail before the convention and by direct contact at the convention site. The Hoffa campaign had pre-convention mail access to the elected delegates both because it was able to generate its own, nearly complete list by merging the publicly available information on certified delegates with the address data it had from the IBT membership list, and because it got the June 16 certified delegate list with addresses and used that list to conduct targeted mailings to the delegates added since the previous certified list. The Hoffa campaign and the Leedham campaign both had opportunities for direct contact with delegates at the convention, before and during the critical days of nomination and voting.
The protest specifically concerns whether release of the May 26 list conferred an advantage on Leedham that had some impact at the convention. Considering Leedham's mildly stated request to delegates in a single mailing a month before the convention requesting support for his own candidacy against the weight of Hoffa campaign material, activity and events by mail before the convention and at the convention supporting its own candidates and attacking candidates on the Leedham slate, we repeat our holding from Hoffa 2006, supra, that "we are unable to discern any impact our error caused on the course the convention took or the results of the balloting for candidates nominated for International office."
Accordingly, we DENY the protest. Although we find our error in supplying the May 26 list to the Leedham campaign did not provide it a measurable advantage or cause the Hoffa campaign a measurable disadvantage, we have implemented procedures to insure that a similar error does not recur.
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 333
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
David J. Hoffa
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
Steven R. Newmark, Esq.
Office of the Election Supervisor for the
International Brotherhood of Teamsters
1725 K Street, NW, Suite 1400
Washington, DC 20006
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com