OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: MATT TAIBI, ) Protest Decision 2016 ESD 306
) Issued: October 17, 2016
Protestor. ) OES Case No. P-375-100616-NE
____________________________________)
Matt Taibi, principal officer of Local Union 251 and candidate for IBT vice-president at large on the Teamsters United slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that Joe Bairos impermissibly used a membership list provided him by the Hoffa-Hall 2016 slate for Local Union 251’s delegates and alternate delegates election to solicit support for him and the members of his slate in the local union officers election.
Election Supervisor representative Peter Marks investigated this protest.
Findings of Fact and Analysis
Local Union 251 is presently conducting its officers election. Ballots were mailed on October 4, 2016 and are due to be counted October 29. Protestor Taibi is the current principal officer of the local union and is running for re-election to that post. His slate defeated a slate headed by then incumbent principal officer Joe Bairos in the 2013 local officers election. Slates headed by both men competed in Local Union 251’s delegates and alternate delegates election, with Taibi’s slate winning all seats.
In summer 2015, the Hoffa-Hall 2016 campaign circulated accreditation petitions for its slate members, submitting sufficient signatures to achieve accredited status for 27 candidates on its slate. Pursuant to Article VII, Section 3 of the Rules, we released the entire IBT membership list, including Local Union 251’s membership list, to the Hoffa-Hall 2016 slate. A candidate’s receipt of a membership list under the Rules is conditioned on signing a declaration acknowledging that “no IBT membership list provided me may be used for any purpose other than advancing the candidate’s campaign for nomination or election,” OES Form 21, and that declaration was submitted by a slate representative. The IBT list included each member’s first and last name, mailing address, local union number, and employer name, sorted by local union number but sortable by any of those fields. The list did not include members’ phone numbers.
The IBT membership list is not available to candidates under Title IV of the LMRDA. The Rules and Title IV are broadly parallel in requiring unions to comply, on equal terms, with candidate requests to distribute campaign literature, by mail or otherwise, at candidate expense[1] and in requiring unions to permit inspection (but not copying) of membership lists.[2] These provisions do not authorize candidates to obtain membership lists from unions.
The Rules, however, grant additional rights not granted by the LMRDA to candidates for International office who have demonstrated substantial support among the membership. Thus, so-called “accredited” candidates for International office and, in addition, such candidates who have been nominated at the IBT convention to the member referendum ballot for International office are entitled to request and receive a copy of the full IBT membership list.
The cited Rules provision governing permissible use of the membership list states in part:
No membership list may be used for any purpose other than advancing the accredited or nominated candidate’s campaign for nomination and/or election. Use of a membership list in support of the election of delegate and/or alternate delegate candidates shall not constitute misuse of the list, provided that the list is used solely to advance the accredited or nominated candidate’s campaign for nomination and/or election. In order to obtain a copy of the membership list, the accredited or nominated 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.
Rules, Article VII, Section 3(a). The Rules define “candidate” as “any member who is actively seeking nomination or election for any Convention delegate or alternate delegate position or international Officer position.” Rules, Definition 6. The definition does not encompass candidates for local union office.
The Bairos slate in the delegates and alternate delegates election, named the “251 Strong” slate, was allied with the Hoffa-Hall 2016 slate of candidates for International office. Investigation showed that the Hoffa-Hall 2016 slate engaged a third-party vendor, TargetSmart Communications, LLC, to perform a “phone match” of the Local Union 251 portion of the IBT membership list, by which phone numbers of members could be obtained. This task was completed on February 12, 2016, and Hoffa-Hall 2016 transferred the Local Union 251 membership list, with phone numbers, to the Bairos slate on February 18, 2016. The Bairos slate used the membership list to campaign in the delegates and alternate delegates election, with the aim of winning that election and supporting the effort of the Hoffa-Hall 2016 slate candidates to gain nomination and election to International office. Ballots were mailed in Local Union 251’s delegates and alternate delegates election on February 22, 2016 and counted on March 19, 2016. All candidates on the Taibi slate were elected; all candidates on the Bairos slate were defeated.
The protest alleged that Bairos and other candidates and supporters on his slate for local union office, once again named the “251 Strong” slate, used the list obtained from Hoffa-Hall 2016 for the delegates and alternate delegates election for the local union officers election. Investigation showed that Hoffa-Hall 2016 provided a membership list it received under the Rules for use exclusively in the International Officer election to the 251 Strong slate on two occasions. The first list was provided to the slate for use in the local union delegates and alternate delegates election, as detailed above. The second list was provided to the 251 Strong slate in September 2016 for use in the local union officers election. With respect to this second list, Hoffa-Hall 2016 achieved convention nomination of 27 candidates for International office; as a result, we issued a current IBT membership list to the slate on August 22, 2016, pursuant to Article VII, Section 3 of the Rules. The same Rules provision that restricted use of the first list issued to Hoffa-Hall 2016 “solely to advance the accredited or nominated candidate’s campaign for nomination and/or election” of slate candidates applied with equal force to the second list issued to the slate.
Hoffa-Hall 2016’s vendor performed a phone match for the Local Union 251 segment of the IBT membership issued to the slate on September 7, 2016, just as it had on the first such list. On September 28, 2016, Hoffa-Hall 2016 transferred the list, including phone numbers, to the 251 Strong slate running in the Local Union 251 officers election.[3] Thereafter, the 251 Strong slate conducted a live phone-bank operation, calling the members whose names appeared on the list.[4] The callers used a script that advocated solely for the election of the 251 Strong slate to local union office. No advocacy was presented for Hoffa-Hall 2016. The script read as follows:
Hi, I represent the 251 Strong slate. I’m calling to let you know ballots have recently been mailed to elect new leadership for Local 251. The 251 Strong slate is asking for your vote, and the Right Team is on the right side of your ballot. Thank you for your support. Please remember to vote 251 Strong.
Hoffa-Hall 2016 was aware that the 251 Strong slate intended to use the Local Union 251 membership list it sent the slate in September 2016 to phone-bank for the local union officers election. It defends providing the list under these circumstances, arguing that the list as annotated with the phone number information was no longer a portion of the IBT membership list provided to Hoffa-Hall 2016 under the Rules for use solely in the International officer election.
Hoffa-Hall 2016’s argument ignores the plain language of Article VII, Section 3. The lists are made available to candidates, as defined in the Rules for use only to advance the candidacies of those accredited or nominated candidates for International office. The language was adopted precisely to prevent use of the lists for any other purpose, including campaigns for local union office. Enhancing that list with telephone numbers and distributing it for use in an election other than for International Union Convention Delegate or International Officer is exactly the sort of misuse that the Rules prohibit.
The IBT membership list is a union resource.[5] Both the Rules and Title IV prohibit use of union resources to assist in union election campaigning unless the resources are made available on a non-discriminatory basis to all candidates and they are notified of the availability of the resource. The Rules specify that the IBT membership list may be used only by or on behalf of the campaign for nomination or election of a candidate for International office who has demonstrated substantial membership support, either through the accreditation process or through convention nomination. Candidates, as defined in the Rules, receive the list conditioned on submitting a declaration that the list will not be used for any purpose outside of the International officer election. Use of the membership list for any other purpose, including for a campaign purpose in a local union officers election, constitutes use of a union resource that is not available to other candidates in the same election. As such, Hoffa-Hall 2016 violated the Rules when it released the IBT membership list it obtained under the Rules to the 251 Strong slate for use in the local union officers election. The 251 Strong slate’s use of the IBT membership list it received from Hoffa-Hall 2016 to campaign in the Local Union 251 officer election violated the Rules as well as Title IV of the LMRDA.
Accordingly, we GRANT the protest.
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 the 251 Strong slate, Bairos, all other candidates on his slate for local union office, and all supporters of his candidacy or that of his slate to cease and desist immediately from using any list of members of Local Union 251 that traces its origin to any list Hoffa-Hall 2016 provided to assist in the campaign for local union office or for any purpose other than advancing the candidacy of candidates on the Hoffa-Hall 2016 slate for election to International office. We further order Bairos, no later than Wednesday, October 19, 2016, to take custody of all copies of said list(s) that are in printed form and surrender them to Hoffa-Hall 2016. In addition, we order Bairos, no later than Wednesday, October 19, 2016, to delete the list from any and all electronic media or storage facilities under the custody or control of himself, any other candidates on his slate for local union office, and all supporters of his candidacy or that of his slate. In recognition of the value the list provided to the 251 Strong slate’s Local Union officer campaign, we further order the 251 Strong slate to pay a remedial fine of $3,000 to OES, no later than Wednesday, October 19, 2016.[6] Bairos shall submit his declaration of compliance with this remedy, made under penalty of perjury, to OES no later than Thursday, October 20, 2016.
We order Hoffa-Hall 2016 to cease and desist immediately from using or permitting use of any membership list it obtained pursuant to Article VII, Section 3 of the Rules for any purpose other than pursuing election of members of its slate to International office, even if it has enhanced the list through the services of a vendor or otherwise. We order Hoffa-Hall 2016, no later than Wednesday, October 19, 2016, to recover all printed copies of the list from the 251 Strong slate, Bairos, all other candidates on Bairos’s slate for local union office, and all supporters of Bairos’s candidacy or that of his slate members that Hoffa-Hall 2016 can reasonably determine to be in possession of such a list. We further order Hoffa-Hall 2016 to identify to OES, no later than Wednesday, October 19, 2016, any other person, candidate, or slate of candidates for local union office to whom Hoffa-Hall 2016 has transferred any list it obtained pursuant to Article VII, Section 3 of the Rules where it knows or has reason to believe the list was, will, or may be used for a purpose not permitted by that provision. We further order Hoffa-Hall 2016 to pay a remedial fine of $6,000 to OES, no later than Wednesday, October 19, 2016. The 251 Strong slate is comprised of announced supporters of Hoffa-Hall 2016, and it is plain that the Hoffa-Hall 2016 slate provided this International Union membership list to support its friends in their local union election contest. The list is cannot be used for that purpose, however, and there is no item to which it can be readily compared to determine the value of the benefit. The fine imposed here is a liquidated sum, twice that of the estimated value received directly by the 251 Strong slate, to reflect both the value of this unique resource and the Hoffa-Hall 2016 campaign’s misuse of it. Hoffa-Hall 2016 shall submit its declaration of compliance with this remedy, made under penalty of perjury, to OES no later than Thursday, October 20, 2016.
The unlawful use by the 251 Strong slate of the membership list it obtained from Hoffa-Hall 2016 may affect the outcome of the Local Union 251 officers election. We have no jurisdiction over that election. However, we have jurisdiction over violations of the Rules, and we have found a violation here. In the event any candidate or slate that is opposing the 251 Strong slate presents any allegation that the results of the local union officers elected were affected by the unlawful use of the IBT membership list by or on behalf of the 251 Strong slate and prevails on that allegation (whether in the Union’s internal remedial system or under Title IV of the LMRDA), we order Hoffa-Hall 2016 to pay the actual attorneys fees and costs of the candidate or slate presenting that allegation, up to the sum of $40,000.00.[7] We order Hoffa-Hall 2016, no later than Wednesday, October 19, 2016, to establish an escrow bank account in this amount, fund it with verified funds, and provide OES with the name and address of the financial institution where the account is established, and the number of the account. Hoffa-Hall 2016 shall submit its declaration of compliance with this remedy, made under penalty of perjury, to OES no later than Thursday, October 20, 2016. Any request for disbursement of funds from that account shall be made to OES, which shall make the final determination on whether the condition for release from escrow is satisfied. If no candidate on the 251 Strong slate is elected in the Local Union 251 officers election, or there is no post-election challenge to the result, we will dissolve this aspect of the remedial order.
Finally, we order Local Union 251 to post the notice attached to this decision on all worksite bulletin boards under its jurisdiction as well as on its website and Facebook page, if any. The posting shall remain through and including November 15, 2016 and shall not be defaced or covered up. The postings made on electronic media shall be done so that the hyperlinks are active. The postings shall be completed no later than Wednesday, October 19, 2016. Local Union 251 shall submit its declaration of compliance, made under penalty of perjury, no later than Thursday, October 20, 2016.
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, 34th 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 17th 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 306
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
braymond@teamster.org
David J. Hoffa
1701 K Street NW, Ste 350
Washington DC 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
Teamsters United
315 Flatbush Avenue, #501
Brooklyn, NY 11217
info@teamstersunited.org
Louie Nikolaidis
350 West 31st Street, Suite 40
New York, NY 10001
lnikolaidis@lcnlaw.com
Julian Gonzalez
350 West 31st Street, Suite 40
New York, NY 10001
jgonzalez@lcnlaw.com
David O’Brien Suetholz
515 Park Avenue
Louisville, KY 45202
dave@unionsidelawyers.com
Fred Zuckerman
P.O. Box 9493
Louisville, KY 40209
fredzuckerman@aol.com
Teamsters Local Union 251
121 Brightridge Ave.
E. Providence, RI 02914
mtaibi.ibt251@gmail.com
Joe Bairos
For 251 Strong Slate
joebairos127@gmail.com
Peter Marks
116 Nagle St
Harrisburg, PA 17104
pmarks@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Suite 212
Ann Arbor, MI 48104
EllisonEsq@aol.com
Office of the Election Supervisor
for the International Brotherhood of Teamsters
1050 17th Street, N.W., Suite 375
Washington, D.C. 20036
202-429-8683
844-428-8683 Toll Free
202-774-5526 Facsimile
ElectionSupervisor@ibtvote.org
www.ibtvote.org
Richard W. Mark
Election Supervisor
Notice to All MEMBERS of local union 251
from the IBT Election Supervisor
The Election Supervisor has found that the 251 Strong slate, headed by Joe Bairos, and the Hoffa-Hall 2016 slate violated the Election Rules when the Hoffa-Hall 2016 slate gave a union membership list provided to it for use exclusively in the International officer election to the 251 Strong slate to use in its campaign for local union office.
The Election Rules grant nominated candidates for International office the right to a membership list. However, that list may be used only to advance the campaigns of those candidates for International office. It may not be used to campaign for local union office. Through a violation of the Election Rules, the 251 Strong slate received an improper benefit that the opposing slate did not receive.
The Election Supervisor will not permit any such violations of the Election Rules. The Election Supervisor has ordered the 251 Strong slate and Hoffa-Hall 2016 to stop violating the Election Rules. The Election Supervisor has also fined the 251 Strong slate $3,000 and the Hoffa-Hall 2016 slate $6,000, and has ordered the Hoffa-Hall 2016 slate to pay up to an additional $40,000 in the event that the local union officers election results are successfully challenged through post-election appeal procedure.
The Election Supervisor has issued this decision in Taibi, 2016 ESD 306 (October 17, 2016). You may read this decision at https://www.ibtvote.org/Protest-Decisions/esd2015/2016esd306.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, 1050 17th Street, N.W., Suite 375, Washington, D.C. 20036, telephone: 844-428-8683, fax: 202-774-5526, email: electionsupervisor@ibtvote.org.
This is an official notice of the Election Supervisor for the International Brotherhood of Teamsters
and must remain posted on this bulletin board through and including
November 15, 2016. It must not be defaced or covered up.
[1] Compare Article VII, Section 7 of the Rules with LMRDA Section 401(c), 29 U.S.C. 481(c).
[2] Compare Article VII, Section 2 of the Rules with LMRDA Section 401(c), 29 U.S.C. 481(c).
[3] Extensive email correspondence between Kelley McNally, on behalf of 251 Strong, and Christy Bailey, campaign operative for Hoffa-Hall 2016, demonstrates that McNally requested and Bailey supplied the Local Union 251 membership list with phone numbers for the use of the 251 Strong slate to phone bank local union members for the local union officers election over the period October 4 through 6, 2016, with a follow-up automated call service (i.e., robo-call) to be conducted during the week of October 10, 2016.
[4] According to calculations performed by the IBT General Secretary-Treasurer’s office, Local Union 251 had an average membership of 5,218; the phone match vendor was able to locate phone numbers for 3,711 of these members.
[5] Unions exercise tight control over their membership lists. Protests in this election cycle show that, even with clear rules, local unions request particular assurance that when lists are disclosed as required by the Rules, the use of the list will be strictly limited to what the Rules allow. See, e.g., Teamsters United, 2016 ESD 283 (September 8, 2016).
[6] Because the membership list is not available in local union elections in the way it was provided to the 251 Strong slate here, there is no ready comparison to determine the actual value of the benefit conferred on the 251 Strong slate. Evidence from another protest shows that the actual cost of preparing and mailing a postcard works out to approximately $0.80 per member. See Toole & Scaglia, 2016 EAM 28 (August 25, 2016) (postcard mailing to approximately 4,000 members cost $3,193.93). The actual costs of enhancing the membership list with phone numbers is likely considerably less than the cost of printing and mailing an equivalent number of postcards. We nevertheless use the $0.80 per member figure to account for the value of having access to a forbidden resource. Multiplying the unit figure by the 3,711 phone-matched names yields a figure of $2,968.80, which, in our discretion, we round up to $3,000.
[7] Attorneys fees may be awarded to a party that prevails in LMRDA Title IV litigation. See Usery v. Local Union No. 639, Int’l Bhd. of Teamsters, 543 F.2d 369, 387-88 (D.C. Cir. 1976); Yablonski v. United Mine Workers, 466 F.2d 424, 431-32 (D.C. Cir. 1972).