Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: HOFFA-HALL 2016,                      )           Protest Decision 2016 ESD 158

                                                                        )           Issued: April 1, 2016

            Protestor.                                           )           OES Case Nos. P-067-110215-NA &

                                                                        )             P-191-02242016-NA           

____________________________________)

            Hoffa-Hall 2016 filed two pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  Protest P-067-110215-NA alleged in part that Al Mixon, candidate for IBT General President, failed to file his CCER Report and Supplemental Report #1 for reporting period #2, as required by the Rules.  Protest P-191-02242016-NA alleged that failed to file the same reports for reporting period #3.[1]

            Election Supervisor representative Jeffrey Ellison investigated these protests.

Findings of Fact and Analysis

            Article XI, Section 2 of the Rules requires members who are candidates for International office to file periodic reports of campaign fundraising and expenditures (CCER reports) and legal and accounting fundraising and expenditures (Supplemental Report No. 1).  Members must file these reports for each reporting period in which they are candidates.

            On or about July 28, 2015, Al Mixon declared his candidacy for IBT vice president at large.  On or about August 10, 2015, Mixon announced that he now sought election as IBT General President.  Mixon commenced his candidacy for International office during reporting period #2, which ran from June 1, 2015 through September 30, 2015.  We contacted Mixon on July 28, 2015 to advise him of the CCERS reporting system[2] by which candidates, slates, and independent committees comply with the campaign finance provisions of the Rules.  He set up an account in CCERS on August 10, 2015. 

            Reports for reporting period #2 were due October 15, 2015.  Mixon did not file his reports timely.  The protestor filed Case No. P-067-110215-NA alleging, inter alia, that Mixon violated the Rules by failing to file his reports for this period timely.  Mixon still has not filed the required reports for reporting period #2.

            Reporting period #3 ran from October 1, 2015 through January 31, 2016.  Reports for reporting period #3 were due February 15, 2016.  Mixon did not file his reports timely.  The protestor filed Case No. P-191-02242016-NA alleging, inter alia, that Mixon violated the Rules by failing to file his reports for this period timely.  Mixon still has not filed the required reports for reporting period #3.

            Mixon has not informed us that he no longer is a candidate for International office.  We note that, were a determination to be made, Mixon may be ineligible for International office.  He is the subject of internal union disciplinary charges that, after notice, trial, and an opportunity to be heard, resulted in a finding of guilt on several charges, with the result that Mixon was ordered removed from the local union, joint council, Ohio conference, and International union offices he held for the remainder of those terms, removed from employment with the International union, and suspended from union membership for a period of six months.  We are informed that Mixon appealed the result of the trial to the General Executive Board, which denied the appeal.  We are further informed that Mixon requested a stay of the penalty imposed, including the suspension from membership; this stay request was denied.  Finally, we are informed that Mixon has appealed the internal union trial findings and penalty, including the suspension from membership, to the IBT convention, the last recourse available to him under the IBT constitution.  The convention has authority to grant the appeal and to restore Mixon’s membership status retroactive to the date it was suspended.  Absent such relief, however, the suspension from membership would render Mixon ineligible for office because it would cause an interruption in his continuous good standing during the 24-month eligibility period.

            Timely filing of required CCER reports is important to allow for prompt review and the related prompt correction of errors or, if necessary, action to remedy a Rules violation.  We have imposed fines in the past for tardy filing.  Should a candidate be unable to meet any filing deadline, he/she should contact our office and request an extension of time in which to file.  Such extensions may be granted only for good cause shown.  Hoffa-Hall 2011, 2011 ESD 46 (November 18, 2010).

Late filing of CCERs has been the subject of protests in past election cycles.  The Election Appeals Master emphasized the need to impose appropriate remedies for late filings, even in cases where a candidate had raised little money, to drive home to all candidates that timely filing is an essential part of the election process. Not imposing remedies in such a case “sends the unfortunate message that the CCER filing requirement of the Rules is nominal, trivial and not especially material to the integrity of the election process.”  Hoffa 2006, 06 EAM 55 (July 11, 2006).  In that particular case, a candidate for International office had failed to file CCERs and Supplemental Form #1 for two reporting periods.  Hoffa 2006, 2006 ESD 331 (July 19, 2006). The Election Supervisor set a prospective fine of $250.00 per day if the candidate failed to file by a future deadline. The candidate filed ahead of the deadline and no fine was imposed.  The filed CCERs showed cash and in-kind contributions of $532.11 for the two periods.  Following the Election Appeals Master’s direction, a late-filing penalty of 15% ($80.00) was imposed.  The penalty rate was set at 7.5% for each of the missed reporting periods.

            In the case of Mixon, we have been in repeated contact with Mixon concerning the need to file the required reports.  Despite this contact,and repeated promises that compliance would be forthcoming, the reports have not been filed.

            Accordingly, we GRANT the protests.

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.  “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.”  Hailstone & Martinez, 10 EAM 7 (September 14, 2010).

            We order Mixon to do the following:

• File the CCER report and Supplemental Report No. 1 for reporting period #2 no later than Monday, April 11, 2016.
• File the CCER report and Supplemental Report No. 1 for reporting period #3 no later than Monday, April 11, 2016.
• Pay a fine to the Office of the Election Supervisor in the amount of $250.00 per day for each day after April 4, 2016 in which he fails file the reporting period #2 reports, subject to a maximum fine of $1,250.00 for reporting period #2.
• Pay an additional fine to the Office of the Election Supervisor in the amount of $250.00 per day for each day after April 4, 2016 in which he fails file the reporting period #3 reports, subject to a maximum fine of $1,250.00 for reporting period #3.
• File required reports timely for all current and future reporting periods in which he is a candidate for International office.

Should Mixon give irrevocable notice by April 4, 2016 that he is withdrawing all candidacy for International office and will not seek or accept nomination for such office at the 29^th IBT convention to be held in June 2016, the fines we impose above will be capped at $250.00 per reporting period for a total of $500.00; however, the balance of the order will remain in force.  That is, Mixon must still file CCERs for past periods when he was a candidate, and a failure to file would subject Mixon to further remedial orders.

            A decision of the Election Supervisor takes immediate effect unless stayed.  Lopez, 96 EAM 73 (February 13, 1996).

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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2016 ESD 158 

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