IN RE: HOFFA-HALL 2011, Protestor
Protest Decision 2010 ESD 51
Issued: December 8, 2010
OES Case No. P-058-120210-NA
Hoffa-Hall 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 the Gegare campaign impermissibly used union resources - a local union address - by sending campaign literature to a local union official at that address.
Election Supervisor representative Deborah Schaaf investigated this protest.
Findings of Fact and Analysis
Hoffa-Hall 2011 complained that a Gegare campaign mailing was sent to Sean O'Brien, principal officer of Local Union 25, at the local union's address, and "apparently to a number of Teamster affiliates." The mailing consisted of a flyer printed on both sides of a single sheet of paper. The front, bearing the Gegare campaign logo, was addressed "Dear Teamster" and criticized Hoffa while lauding Gegare; the reverse compared the candidates' positions on specific issues. The flyer arrived in a #10 business envelope bearing the return address of the Gegare campaign in Green Bay, Wisconsin. It was addressed to O'Brien by laser process directly on the envelope without use of an adhesive label. Postage was paid through use of a first-class presort bulk mail permit.
The protest asserted that the Gegare mailing violated our Advisory on literature tables, which permits a candidate to send campaign literature to a local union address only if it is designated for distribution on a literature table. Such other use of a local union address by a candidate to communicate with a local union official for a campaign purpose violates the Rules. The Gegare mailing did not include any instruction that it be copied and placed on the local union literature table nor did it warn, as the Advisory requires for campaign flyers intended for a literature table, that union resources may not be used to copy the literature (except for the first 50 copies, as the Advisory states).
The protest also asserted that the Gegare flyer violated the Rules because it failed to inform the reader that Gegare's title of International Vice President was used for information purposes only.
Investigation showed that the Gegare mailing was sent pursuant to our decision in Halstead, 2010 ESD 8 (July 26, 2010), in which we found that Local Union 399 violated the Rules by publishing in its newsletter photos of Hoffa and his supporters wearing campaign stickers. We found that the use of those photos supported Hoffa's candidacy. Investigation of that protest showed that the newsletter was "mailed by first-class presort … to 4,808 recipients, a number that included all members of the local union, 312 retirees, and approximately 100 other industry personnel and managers." Among the several remedies imposed for the Rules violation found there, we ordered "Local Union 399 to pay the expenses of a campaign mailing to all classes of recipients to whom the May 2010 edition of NewsReel was sent," in order to "level the playing field between the Hoffa campaign and other candidates for International office." The Gegare campaign gave timely notice of its intention to access the remedial mailing and transmitted its campaign flyer to Gowans Printing in Modesto, California, the mail house designated by the local union. The local union guaranteed payment to the mail house and transmitted a mailing list consisting of 4,812 names and addresses, in the same classes who were mailed the May 2010 edition of NewsReel.
One of the classes of recipients to whom NewsReel was sent - and therefore individuals to whom the remedial mailing was required to be sent - was a list of 39 names and addresses that Local Union 399 designated as its "VIP list," of whom 33 are officers or employees of Teamster local unions, joint councils, or the International Union. The addresses of all of these Teamsters appeared to be those of the union hall, or in the case of the IBT, the IBT headquarters in Washington, D.C. Included on the VIP list was O'Brien, whose copy of the Gegare mailing formed the basis for the protest. Also on the VIP list were James Hoffa, John Coli, Ron Herrera, Tyson Johnson, and Rick Middleton, all of whom are seeking election or re-election to International office on the Hoffa-Hall 2011 slate.
The Gegare campaign never inspected, possessed, or knew the contents of the mailing list, nor did it have the right to do so under the terms of the remedy we ordered in Halstead. Indeed, Local Union 399 required the mail house to agree not to disclose the list to the Gegare campaign. Under these circumstances, we will not hold the Gegare campaign responsible for mailing campaign literature to union addresses in violation of the Advisory on literature tables because the Gegare campaign did not do the mailing and was unaware some pieces of the mailing would be sent to union addresses. Instead, the mailing was done by a mail house under contract with Local Union 399 using a mailing list supplied by that local union.
We dispose of the remaining protest allegation - that the Gegare flyer failed to indicate that Gegare's title of International Vice President was used for identification only - on the same basis that we used in Hoffa-Keegel 2011, 2010 ESD 3 (June 9, 2010). There, the protestor complained that Gegare violated the Rules by failing to include the disclaimer about his union title. The protestor argued that, without the disclaimer, the title improperly conveyed a prohibited union endorsement of the candidate. While a union body is prohibited from making an endorsement under the Rules, we held that a member who holds a union position does not make a prohibited union endorsement when he uses his union title in an endorsement because the endorsement is not by the union as such. For that reason, Gegare did not violate the Rules by using his union title in his campaign literature.
Accordingly, we DENY this protest in its entirety.
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 51
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
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
Previant Goldberg
155 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Deborah Schaaf
1118 Coddington Road
Ithaca, NY 14850
607/227-6474 phone
607/319-0043 fax
debschaaf33@gmail.com
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com