Protest Decisions

IN RE: HOFFA-KEEGEL 2011, Protestor

Hoffa-Keegel 2011 filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that Fred Gegare, candidate for IBT General President, violated the Rules by mailing campaign literature to local unions and joint councils and by using his title of vice president at large as part of the letter's signature block.

Election Supervisor representative Jeffrey Ellison investigated this protest.

Findings of Fact and Analysis

By letter dated May 25, 2010 addressed to General President James P. Hoffa, Fred Gegare announced his candidacy for General President. Printed on letterhead that read "F. Gegare for General President 2011," the letter filled two pages and included the following:

Dear General President Hoffa:

* * *

[I]t is no secret that in the past four years we have disagreed on many significant issues. It is my opinion and belief that you have surrounded yourself and are being advised by the wrong people who were not elected by the membership under our democratic process. You have forgotten that the membership and leadership in this organization put you in office as General President.

The letter criticized specific actions that Gegare attributed President Hoffa, including failing to recognize local union autonomy, discouraging members from fighting for their pensions, failing to listen to the membership and leadership, permitting UPS to leave the Central States Pension Fund, and mishandling of IBT finances.

The letter concluded with the following:

Therefore, I must advise you I have many, many other concerns on how, in my opinion, the IBT is being ran [sic] under your leadership. Based on those concerns I have reached a decision which has come easily to me. I hereby announce to you by the way of this letter that I will be a candidate for the position of General President at the 2011 convention.

And with the help of the membership and leadership of this great International Union my voice will not be silent during this campaign. All I have on my side is the truth and my facts as to the differences between you and me, and how I would have handled issues in the past, and going forward how I will handle them in the future.

Gegare's signature appears at the end of the letter over a designation "Fred Gegare, Vice President at Large for United States and Canada." The title includes no disclaimer that it is "for informational purposes only."

The letter listed as copy recipients all U.S. and Canadian IBT local unions and joint councils and the IBT Executive Board and Trustees, among others. Those copies were sent via mail from Green Bay, Wisconsin on May 25.

Hoffa-Keegel 2011 filed the instant protest alleging that Gegare's mailing to local unions and joint councils did not comply with the Election Supervisor's Advisory on the Use of Literature Tables or Bulletin Boards For the Distribution of Campaign Literature Inside Union Halls. Further, Hoffa-Keegel alleged that Gegare violated the Rules by failing to indicate that use of his title as vice president at large was "for informational purposes only."

Gegare's letter is campaign literature because it supports his candidacy for General President and opposes that of Hoffa. Under established precedent and our Advisory, campaign literature may be sent spontaneously to local unions and joint councils by mail, fax, email, or other delivery only if the purpose is to have it distributed or displayed on literature tables or bulletin boards designated for that purpose. Such literature, however delivered, must be accompanied by a cover sheet that, among other things, requests that the literature be distributed or displayed on literature tables or bulletin boards open on equal terms to all candidates and warns that union resources may not be used to reproduce the literature (except for the first 50 copies). Further, the Advisory specifies that campaign literature may not exceed one page in length, so as to limit the expense of duplicating it that otherwise would fall to the union receiving it.

Recognizing that Gegare's letter did not include the required cover sheet and was longer than one page, counsel for Gegare agreed to send the following notice signed by Gegare to the same local unions and joint councils to which the May 25 letter was sent:

[Gegare campaign letterhead]

On May 25, I mailed to all IBT Local Unions and Joint Councils and to IBT Executive Board Members and Trustees a copy of a two-page campaign letter I had sent to General President Hoffa concerning the International Officer election.

The Election Supervisor has advised me that sending the campaign letter directly to local unions and joint councils violated the Election Rules. Under those Rules, campaign literature may be sent to local unions and joint councils only if it complies with the Election Supervisor's Advisory on the Use of Literature Tables or Bulletin Boards for the Distribution of Campaign Literature Inside Union Halls (available at www.ibtvote.org). The Advisory requires campaign literature sent to local unions and joint councils to have a cover sheet that states 1) the name and address of the candidate or slate, 2) the candidate or slate representative to contact for purposes of charging any costs of reproduction, 3) a statement that union resources are not to be used for reproducing the literature (except for the first 50 copies), 4) specific instructions as to how the candidate or slate wants literature to be distributed, 5) where it should be placed (literature table or bulletin board), 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 Supervisor."

The Advisory also requires that any literature delivered for a local union to copy and distribute on a literature table be a one-page, single-sided 8½" x 11" sheet. This is to limit the expense that might otherwise fall to local unions in photocopying campaign flyers longer than one page.

My campaign letter violated the Rules because it did not include the cover sheet with the Advisory's required instructions for distribution and, further, because it was longer than permitted by the Advisory for material that may be disseminated using a literature table or bulletin board.

Please discard the campaign statement mailed to you on May 25.

We will deem this aspect of the protest RESOLVED provided that, within 3 working days of the date of this decision, the Gegare campaign mails the foregoing notice to the same set of addressees as was used in mailing the May 25 letter, and submits to us a compliance affidavit that includes listings of the original addressees and the addressees of the remedial notice within 1 working day thereafter.

Turning to the final issue, the protest alleged that Gegare's use of his title of vice president at large violated the Rules because it did not include the disclaimer "for informational purposes only." Article VII, Section 12(b) provides the following with respect to endorsements by union officials and organizations:

An endorsement of a candidate may be made by a Union officer or employee, but solely in his/her individual capacity. The Union or a Local Union as such or the General Executive Board or an Executive Board of a Local Union as such may not endorse or otherwise advance a candidacy, even if all members agree on the endorsement or candidacy.

We analyzed the distinction between an endorsement made by a union official and one made by a union body in Jensen, 2006 ESD 167 (April 25, 2006), aff'd, 06 EAM 37 (May 12, 2006), viz.

While the Rules prohibit endorsements by the Union or a Local Union, endorsements by individuals are permitted even when the endorsement identifies the member by an official union position. Thus, Election Officer Holland in Moriarty, P1071 (November 15, 1991), found no violation when a letter contained endorsements from every member of the local union executive board, each board member's name and title, and a statement that "the members" of the board unanimously endorsed a certain slate. The Election Officer explained, "[T]he Rules do not prohibit the members of an Executive Board from identifying themselves as such when [endorsing] candidates; as long as the endorsement is not made as an official endorsement of the Executive Board as an entity, but as individual endorsements by the members of the Executive Board, the Rules are not violated." The Rules and Election Office precedent were applied in 2001 to permit a flyer headed with the words "A Message From Your President" that endorsed a slate of candidates in the local union's delegate election and was signed by the individual, Phil Young, with the designation "President of Local 41." Jones, 2001 EAD 222 (March 8, 2001). The Election Administrator held that the endorser had the same right to endorse as any other member and used his title to identify himself and not to convey official union action. See also, Sandford, 2006 ESD 142 (April 3, 2006). In allowing the flyer, the Election Administrator wrote:

The relevant precedent reveals a distinction between an endorsement by a local union institution, which is prohibited, and an endorsement by individual members who comprise a local union institution, which is permitted. [Citing Hoffa and Custer]. . . .

"[T]he Rules do not prohibit the members of an Executive Board from identifying themselves as such when [endorsing] candidates; as long as the endorsement is not made as an official endorsement of the Executive Board as an entity, but as individual endorsements by the members of the Executive Board, the Rules are not violated." [Citation omitted]. In Custer, the Election Officer reiterated the distinction: "While members of the Local Union and Local Union officers have the right as individuals to express their preferences for particular candidates, the Local Union and the Local Union Executive Board as institutions cannot … endorse candidates."

Jones, 2001 EAD 222 (March 8, 2001) (emphasis added).

Under the Rules and Election Office precedents, endorsement by the Union or Local Union "as such" is essential to finding a violation of Article VII, Section 12(b). Our precedents have given broad scope to individuals, and to groups of union members, who have endorsed candidates and used their titles for identification purposes in connection with the endorsement. What we have strictly prohibited under the Rules are endorsements that come from the Union or Local Union "as such."

Jensen, id.

These precedents demonstrate that Gegare's use of his title of IBT vice president at large in his campaign letter, published on letterhead identified to the Gegare campaign, did not violate the Rules because it did not constitute an endorsement of his candidacy by a union as such. Accordingly, we DENY this aspect of the 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
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, 1801 K Street, N.W., Suite421 L, Washington, D.C. 20006, 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
        2010 ESD 3

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington,D.C. 20001
braymond@teamster.org

David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington D.C. 20036
hoffadav@hotmail.com

Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org

Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net

Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com

Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
Fgegare663@new.rr.com

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com