IN RE: FRED ZUCKERMAN, Protestor.
Protest Decision 2010 ESD 58
Issued: December 22, 2010
OES Case No. P-061-121310-MW
Fred Zuckerman, member of Local Union 89 and candidate for International office, 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 Hoffa-Hall 2011 campaign used an IBT membership list improperly under the Rules.
Election Supervisor representative Joe Childers investigated this protest.
Findings of Fact and Analysis
On December 9, 2010, members of Local Union 89 received recorded telephone calls promoting the Hoffa-Hall 2011 campaign. Each call gave the recipient the option to press a number on his/her telephone key pad to express interest in running for local union delegate, to support the Hoffa-Hall 2011 campaign, or to learn more information about the campaign.
Protestor Zuckerman alleged that the calls were evidence that Hoffa-Hall 2011 had misused the IBT membership list provided to accredited candidates of that slate. The membership list released by the Election Supervisor to accredited candidates under Article VII, Section 3(a) does not include member telephone numbers. Therefore, Zuckerman reasons, either the Hoffa-Hall 2011 campaign improperly obtained the phone numbers from the IBT or it impermissibly provided the list to a third party who matched phone numbers to the names and addresses on the list. Zuckerman contends that providing the list to a third party violates Article VII, Section 3(a), which states:
No membership list may be used for any purpose other than advancing the accredited … candidate's campaign for nomination and/or election. … In order to obtain a copy of the membership list, the accredited … candidate must submit to the Election Supervisor an affidavit in a form approved by the Election Supervisor attesting that he/she will not use or permit use of the membership list for any purpose other than advancing that candidate's campaign for nomination and/or election and that he/she will not provide the list to nor permit inspection or copying of the list by any third parties.
As a condition of obtaining the IBT membership list from us, a representative of Hoffa-Hall 2011 executed an affidavit stating in part that the list would not be provided to a third party and a third party would not be permitted to inspect or copy the list.
Investigation showed that Hoffa-Hall 2011 obtained the phone numbers for Local Union 89 members by engaging a phone match service. That vendor, Catalist LLC, searched various public and for-fee databases to match names and addresses on the membership list with phone numbers, and then provided those phone numbers to the campaign. Catalist, through its general counsel, executed an affidavit on our Form 35, stating the following, in relevant part:
3. I am being contracted to provide services for Hoffa-Hall 2011.
* * *
5. The nature of the services are voter membership file enhancement.
6. I/we recognize that no IBT membership list provided me may be used for any purpose other than advancing Hoffa-Hall 2011's campaign for nomination or election.
* * *
8. I/we will not use or permit use of the IBT membership list for any purpose other than advancing the campaign of Hoffa-Hall 2011.
9. I/we will not provide the list to any third party.
10. I/we will not permit any third party to inspect or copy the list.
11. While the IBT membership list is in the possession of Catalist LLC, Catalist LLC shall limit access of the IBT membership list to its employees who have a need-to-know in connection with the project; advise our employees having access to the IBT membership list of the obligations set forth in this affidavit; and be responsible for any breach of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election by any of our employees.
Catalist LLC provided Hoffa-Hall 2011 a list of phone numbers of Local Union 89 members. The campaign then contracted with another vendor, One Call Now, a web-based calling service operated by The Contact Group, Inc., to place recorded phone calls to segments of that list. The Contact Group, Inc. also executed an affidavit on Form 35 acknowledging that the list of phone numbers it received could not be used for any purpose other than advancing the Hoffa-Hall 2011 campaign and that it would not disclose to or permit inspection or copying of the list by any third party.
Article VII, Section 3(a) protects the candidates' interest in communicating with members about the election, the IBT's interest in the integrity of its membership information, and the privacy interest of IBT members in not permitting third parties to use their contact information for a purpose other than the campaign. Case law recognizes that candidates may engage vendors to enhance the membership list to facilitate candidate communication with members. Richardson, 2006 ESD 233 (May 9, 2006); Rhinier, 2006 ESD 126 (March 4, 2006). Campaigns under the earlier versions of the Rules have used matching services to enhance a membership address list with phone numbers, as happened here. See Johnson, 2006 ESD 322 (July 8, 2006). Where a vendor contracts to perform a specific service for a candidate, that vendor is the candidate's agent for that purpose and is not a "third party" within the meaning of the rule. The candidate may engage a vendor to provide list-enhancement or list management services but must secure the vendor's written promise that it will not use the list provided to it for any purpose other than advancing the candidate's campaign and will not disclose or permit inspection or copying by any other person or entity.
Hoffa-Hall 2011 obtained the required affidavits from each vendor to phone-match and place automated phone calls to Local Union 89 members. For this reason, we find no violation of Article VII, Section 3(a) and therefore DENY this 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 58
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
Joe F. Childers
Getty & Childers, PLLC
250 West Main Street, Suite 1900
Lexington, KY 40507
childerslaw@yahoo.com
William C. Broberg
1108 Fincastle Road
Lexington, KY 40502-1838
wcbroberg@aol.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