Protest Decisions

              May 10, 1996

VIA UPS OVERNIGHT

Steven Baudo & Art Ramirez

May 10, 1996

Page 1

Steven Baudo

2750 S. 72nd Street

West Allis, WI 53219

Art Ramirez

2376 S. Lenox Street

Milwaukee, WI 53207

Fred J. Gegare, Secretary-Treasurer

Teamsters Local Union 75

1546 Main Street

Green Bay, WI 54302

James Peterson, President

Teamsters Joint Council 39

1125 Wittman Drive

Menasha, WI 54952

Steven Baudo & Art Ramirez

May 10, 1996

Page 1

Re:  Election Office Case No. P‑702-JC39-NCE

Gentlemen:

A pre‑election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Steve Baudo and Art Ramirez, members of Local Union 344, against Joint Council 39 (JC 39) and Fred Gegare, secretary-treasurer of Local Union 75 and vice president of JC 39.  In essence, the protest alleges that Mr. Gegare obtained a copy of all or part of the IBT membership list from

JC 39, in violation of Article VIII, Section 3 of the Rules.

Mr. Gegare acknowledges receiving a list of shop stewards for a mailing, but states that he obtained the list lawfully from the campaign organization of James P. Hoffa, a candidate for general president, on the grounds that Mr. Gegare is a candidate for International vice president on the Hoffa slate.

Regional Coordinator Judith E. Kuhn investigated this protest.

Article VIII, Section 3(a) of the Rules allows accredited or nominated candidates for International officer to obtain a copy of the IBT membership list through the Election Officer.  Use and dissemination of the membership list is controlled as described below.

Steven Baudo & Art Ramirez

May 10, 1996

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The evidence shows that Mr. Hoffa requested and received from the Election Officer a copy of the IBT’s membership list in the form of a computerized data base.  The lists can be broken down in a number of ways to target mailings or other outreach to IBT members.  In order to be eligible to receive the list, Mr. Hoffa signed an affidavit prepared by the Election Office which stated:

I swear and aver, upon pain of contempt, that I will not permit inspection or copying of any membership lists I receive from the  Election Officer to any other third parties.  I agree and understand that the term “third  parties” includes each and every person other  than myself or members or employees of my campaign or campaign organization. 

Sometime in January 1996, Mr. Gegare became a declared candidate for one of the five at-large positions for International vice president.   Mr. Gegare also declared his support for

Mr. Hoffa.   Also in January, Mr. Gegare requested a list from the Hoffa campaign.  On

January 22, 1995, David Lyle, national field director for the Hoffa campaign, sent a letter to

Mr. Gegare enclosing a list of stewards from all but three of the local unions within JC 39.

In the opening paragraph of his cover letter, Mr. Lyle made clear that the lists “are furnished to you solely and exclusively for use in furthering James P. Hoffa’s campaign for General President of the IBT.”  The letter went on to emphasize this point:

Please be advised that in order to obtain the IBT membership list, Jim was required to sign an affidavit swearing that the list would be used only in furtherance of the Hoffa ‘96 campaign.  Therefore, you are hereby prohibited from using the enclosed lists for any purpose other than furthering the Hoffa ‘96 campaign.

(Emphasis in original).

Mr. Gegare discussed becoming a member of the Hoffa slate with the Hoffa campaign.  On February 5, 1996, Mr. Hoffa sent a letter to Mr. Gegare, confirming that the latter would be a candidate for vice president-at-large on the Hoffa ‘96 slate.  No “slate declaration,” as referenced in Article IX, Section 1(b) of the Rules, has been submitted to the Election Officer.

Sometime in March, Mr. Gegare used the lists to send a mailing to all stewards.  On

April 1, 1996, Mr. Ramirez, a steward for Local Union 344, received a mailing from Mr. Gegare directed to all Wisconsin joint council stewards.  The letter announced Mr. Gegare’s candidacy for International vice president, discussed his qualifications and sought the recipients’ support.  The letter did not mention Mr. Hoffa or any other candidate, nor did it mention Mr. Gegare’s affiliation with or support for Mr. Hoffa.  There was no other piece of literature in the mailing received by Mr. Ramirez.

Steven Baudo & Art Ramirez

May 10, 1996

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According to Mr. Gegare, the mailing to certain stewards contained two pieces of literature, the letter described above and a flyer announcing a fundraiser for the Hoffa/Gegare ticket to take place April 28 in Green Bay, Wisconsin.  The leaflet states in part as follows:

Help Elect

FRED GEGARE

VP at Large

to the International Brotherhood of

Teamsters Executive Board

Come out and show your support!

HOFFA / GEGARE

Fund Raiser, Raffles & Dance

There is no other mention of Mr. Hoffa on the flyer.  The bottom of the leaflet states, “Paid for by the Committee to elect Fred Gegare VP At Large.”  The fundraising flyer went only to Local Union 75 stewards, plus some other stewards who lived close enough to Green Bay that they might attend the April 28 event.

Article VIII, Section 3(a) of the Rules provides, in pertinent 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.  

The section further prohibits the distribution of the membership list to any candidate who fails to promise by affidavit 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.”  The section further warns that “[A] violation of this paragraph is punishable by contempt, pursuant to the Opinion and Order of the United States District Court for the Southern District of New York (Hon. David N. Edelstein), dated August 22, 1995.”

In Cipriani, P-420-LU391-SEC (March 1, 1996), aff’d, 95 - Elec. App. - 123 (KC) (March 13, 1996), the Election Officer reviewed at length the history behind the language of this rule.  She concluded “that an International candidate may, assuming the use of appropriate safeguards, allow the IBT membership list to be handled or used by the candidate’s duly designated agents for the purpose of advancing the candidate’s campaign.”  Such agents could include an outside mail house or computer firm, or individuals who are not formally part of the campaign staff, but are designated by the candidate as an agent for the purpose of handling the list on his/her behalf, such as a professional campaign manager.

Steven Baudo & Art Ramirez

May 10, 1996

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Cipriani recognized that the rule contained two prohibitions:  one against improper dissemination and one against misuse of the list.  “The prohibition against dissemination is designed to achieve the real goal of the rule, that of preventing improper usage.  If there are not strict controls on who gets the list, it will be impossible to prevent misuse later on.”  It also concluded that “to the extent the rule reflects the usage and understanding of the last election, it also permits dissemination--with appropriate safeguards-‑by candidates for International office to candidates for delegate and alternate whose election will advance the election of the International candidates.”[1]

The Election Officer concluded her reasoning in Cipriani as follows:

These guidelines demonstrate that the protection to be afforded the IBT membership list must give way to some extent to the goal of encouraging member outreach and participation in the campaign.  However, this in no way sanctions misuse of the list of any kind, or improper dissemination of the list to anyone not appointed as an agent of the candidate or his/her campaign.  Candidates who obtain the list from the Election Officer will continue to remain strictly liable for any misuse or improper dissemination of the list. 

Here, the evidence shows that Mr. Gegare misused the list in violation of Article VIII, Section 3(a) of the Rules.  Since he is not an accredited candidate within the meaning of

Article XI, Mr. Gegare could only come into possession of the list if he were appointed an agent by an accredited candidate for the purpose of advancing that candidate’s campaign.  The letter from Mr. Lyle to Mr. Gegare of January 22, 1996 constitutes a delegation of just such authority by the Hoffa campaign.  The letter is clearly appointing Mr. Gegare as a campaign agent for

Mr. Hoffa for the purpose of using the list.

However, Mr. Lyle’s letter was careful to state that the list was being furnished to

Mr. Gegare “solely and exclusively for use in furthering James P. Hoffa’s campaign for General President of the IBT.”  Thus, Mr. Gegare had authority to use the list only for the campaign of Mr. Hoffa, not for his own campaign.  Any other use of the list not only exceeded Mr. Gegare’s authority from Mr. Hoffa, but violated the express terms of the rule as well.

The mailing sent to the various joint council stewards in Wisconsin was a campaign communication in support of Mr. Gegare’s candidacy only, not in support of Mr. Hoffa’s.  The 1½-page letter discusses only Mr. Gegare’s background and candidacy and never mentions

Steven Baudo & Art Ramirez

May 10, 1996

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Mr. Hoffa’s name.  The fundraising flyer, while mentioning the word “Hoffa” once, is clearly a solicitation of support for Mr. Gegare.  It urges Mr. Gegare’s election, not Mr. Hoffa’s, and was paid for by Mr. Gegare’s committee, not by Mr. Hoffa’s.  Indeed, it is unclear from the flyer whether the funds raised by the event are intended to go to both candidates or only Mr. Gegare.

Mr. Gegare appears to argue that since he is on a slate with Mr. Hoffa, a solicitation of support for Mr. Gegare is also a means of supporting the Hoffa campaign.  Such an argument would be similar to the conclusion of the Independent Administrator in Dalton, where he found that an accredited candidate did not misuse the membership list when he used it to support candidates for delegate to the International Convention.

The situation in Dalton is very different from the present case.  As noted in Dalton, Election Officer Holland believed that the use of the list by or on behalf of candidates for delegate made sense, since convention delegates vote on the nomination of the International officers.  An accredited candidate for International office is clearly acting in his/her own interests by using the list to elect delegates who are pledged or who, in the candidate’s view, are likely to vote for that candidate’s nomination.  This usage is expressly recognized in Article VIII,

Section 3(a) of the Rules, and was recognized in the 1991 Election Officer’s advisory which is discussed at length in Cipriani.

Here, however, there is no exception in the Rules for using an accredited candidate’s list to support the campaign of an unaccredited candidate for International office.  Candidates for International office will not vote on who will become general president.  Votes by members for Mr. Gegare do not automatically translate into votes for Mr. Hoffa, since each office is elected separately.  Finally, the Hoffa campaign authorized Mr. Gegare to use the list “solely and exclusively” for Mr. Hoffa’s benefit, not for Mr. Gegare’s benefit on any theory.  Thus,

Mr. Gegare’s use of the list to campaign for himself violates Article VIII, Section 3(a) of the Rules.

Mr. Gegare’s violation of the Rules must also be attributed to Mr. Hoffa.[2]  Having received a copy of the list from the Election Officer pursuant to the Rules, Mr. Hoffa remains

“strictly liable for any misuse or improper dissemination of the list.”  Cipriani.  It is this strict liability which provides the incentive to accredited candidates to create safeguards against misuse or improper dissemination of the list.  The Hoffa campaign certainly made clear to Mr. Gegare what limits were placed on the use of the list.  It may be that the Hoffa campaign could have prevented the violation by adopting additional procedures for controlling the use of the list.  However good the internal controls may be, the candidate is still responsible for any violation.  Thus, Mr. Hoffa must be found to have violated Article VIII, Section 3(a) of the Rules.

Steven Baudo & Art Ramirez

May 10, 1996

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The protesters also allege a violation of the Rules by JC 39.  However, there is no evidence that the joint council has ever disseminated any list, and the protesters do not supply any actual evidence against it.  Accordingly, the protest against JC 39 must be dismissed.

For the foregoing reasons, the protest is GRANTED as to Mr. Gegare and Mr. Hoffa, but DENIED as to JC 39.

When the Election Officer determines that Rules have been violated, she “may take whatever remedial action is appropriate.”  Article XIV, Section 4.  In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.

In Cipriani, the Election Officer noted that violations of Article VIII, Section 3 of the Rules are potentially serious.  “It may be the only rule which specifically warns that a violation thereof is punishable by contempt.  That language . . . serves as a warning to all candidates and members that this rule will be strictly enforced.”  However, the severity of the penalty may be mitigated by circumstances, such as reliance on broader practices tolerated during the previous election.

Considering the above factors, the Election Officer finds the appropriate remedy to be as follows:  

First, Mr. Gegare, his campaign, his campaign staff and his agents are hereby ordered to immediately cease and desist from using the IBT membership list received from the Election Officer to advance his candidacy for International vice president, or from any other use, in whatever form or manner, unless the usage is for the sole and exclusive purpose of supporting the candidacy of Mr. Hoffa.

Second, Mr. Hoffa, his campaign, his campaign staff and his agents are hereby ordered to immediately cease and desist from allowing the IBT membership list received from the Election Officer to be used to advance the candidacy of any other candidate for International Union office, or from any other use, in whatever form or manner, unless the usage is for the sole and exclusive purpose of supporting the candidacy of Mr. Hoffa.

Because of the express language in the rule and in the District Court’s original decision on this issue,[3] the Election Officer has considered whether Messrs. Gegare or Hoffa should be disqualified from running for International office and/or whether contempt proceedings are warranted.  The Election Officer has concluded that such extreme measures are not warranted on the facts of this case.  There is no evidence that either candidate or their assistants willfully violated the rule or misused the list for a noncampaign purpose.

Steven Baudo & Art Ramirez

May 10, 1996

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An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules.  In Re: Lopez, 96 - Elec. App. - 73 (KC)

(February 13, 1996).

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile

(202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:               Kenneth Conboy, Election Appeals Master

Judith E. Kuhn, Regional Coordinator