Protest Decisions

              July 9, 1998

VIA UPS OVERNIGHT

C. Sam Theodus

July 9, 1998

Page 1

C. Sam Theodus

202 James Circle

Avon Lake, OH  44012

Hoffa Slate

c/o Patrick J. Szymanski, Esq.

Baptiste & Wilder

1150 Connecticut Avenue, NW

Suite 500

Washington, DC  20036

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

Bradley T. Raymond, Esq.

Finkel, Whitefield, Selik,

  Raymond, Ferrara & Feldman

32300 Northwestern Highway

Suite 200

Farmington Hills, MI 48334

C. Sam Theodus

July 9, 1998

Page 1

Re:  Election Office Case No. Post-052-CST-EOH

        Election Office Case No. Post-053-CST-EOH

        Election Office Case No. Post-059-CST-EOH

Gentlemen:

C. Sam Theodus, a member of Local Union 407 and formerly a candidate for International office, filed these post-election protests pursuant to Article XIV, Section 3(a) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against the Election Officer.  In Post-052, Mr. Theodus alleged that the supplemental nomination ballots “were not made out in French or Spanish for those delegates that do not speak or read english [sic].” Additionally, Mr. Theodus alleged that a “large number of individuals had there [sic] names applied to the supplemental ballot that were in fact not candidates at all . . . thereby denying intended candidates the opportunity of that delegate support.”  In Post-053, Mr. Theodus alleged that “approximately 800 delegates did not participate” in the supplemental nomination process, indicating to him that the voting delegates were “disenfranchised . . . through lack of notification, lack of not receiving a ballot, and a lack of simply [sic] understanding of this process.”  Finally, in Post-059, the protester alleges that the “Hoffa slate was contacting delegates and telling them to hold there [sic] ballots.” 

C. Sam Theodus

July 9, 1998

Page 1

Because all of these protests concern the supplemental nomination process, the Election Officer consolidated them for resolution.  The protests were investigated by Election Office Counsel David S. Paull.

I.  Findings of Fact

On June 8, 1998, all potential candidates[1] were notified of their right to observe the printing, labeling, stuffing, processing, and mailing of the supplemental nomination ballots.  Another explanatory document, the “Notice of Nominations and Procedure for Supplemental Nominations,” was included in the mailing.  The protester did not observe any event, either in person or by appointed agent.  Only a representative of the Hoffa Campaign appeared as an observer.  Prior to printing, the Election Officer granted all requests to supply sample ballots to candidates.  Several candidates, including representatives of the Hoffa and Leedham campaigns, made such a request.  The protester did not. 

The ballots for supplemental nominations were mailed to delegates by the Election Officer on June 15, 1998, pursuant to a timetable proposed by the Election Officer and approved by the United States District Court.  No delegate has advised the Election Officer that a ballot was not received.  See, Theodus, PR-140-CST-EOH (June 25, 1998), aff’d, 98 - Elec. App. 357 (KC) (July 6, 1998).  All ballots received by the return date were opened and counted by the Election Officer on June 29, 1998.  Mr. Theodus was not nominated as a candidate for any International office.

The supplemental ballots were printed in the English language only.  During the IBT Convention held in Philadelphia, Pennsylvania, in July 1996 all of the nomination proceedings were conducted in the English language.

The allegation that the Hoffa Campaign requested delegates to “hold” the mailing of supplemental nomination ballots was based, according to Mr. Theodus, on information provided to him by Charles Mosqueda, president of Local Union 795, and Jeraldine Cheatem, a member of Local Union 743. 

C. Sam Theodus

July 9, 1998

Page 1

According to Dennis Speak, secretary - treasurer of Local Union 41, he telephoned Mr. Mosqueda twice on behalf of the Hoffa Campaign regarding the supplemental nomination ballots.  He stated that the first call occurred just prior to the mailing of the ballots by the Election Officer in June.  Mr. Speak stated that he called to ask Mr. Mosqueda to “check with” the Hoffa Campaign prior to completing his supplemental ballot because, if Mr. Hoffa was disqualified, his supporters would be asked to “write-in” the name of another candidate.  Mr. Speak further stated that he telephoned Mr. Mosqueda again after the ballots had been mailed, but prior to the return date.  On this second occasion, Mr. Speak stated that, despite the fact that no decision on Mr. Hoffa’s ability to be a candidate has been issued by that time, he asked Mr. Mosqueda if he would “write-in” the name of Phil Young as his nominee for general president.  Mr. Young is the president of Local Union 41. 

Mr. Mosqueda does not dispute Mr. Speak’s recollections of these telephone conversations.  He states further that, on neither occasion, was Mr. Speak’s request retaliatory in tone or accompanied by any threat of hostile action. 

The Hoffa Campaign admits that, during the pendency of Judge Edelstein’s decision in the appeal of In re Carey Slate, PR-035-EOH (Post-47-EOH) (April 27, 1998), aff’d, 98 - Elec.  App. - 348 (KC) (May 15, 1998), delegates supportive of the campaign were notified that an alternative candidate would be supplied in the event of Mr. Hoffa’s disqualification.  According to the Hoffa Campaign, the candidate ultimately selected was Mr. Young and that, upon his selection, the Hoffa delegates were contacted again and asked to write in his name.   Ms. Cheatem stated that her information was obtained from a delegate in Local Union 743.  Efforts to obtain a statement from this delegate were unsuccessful, however.

II.  Use of Alternative Languages

The Rules at Article V, Section 4(d) require that election ballots for Canadian members be printed in both French and English.  The Rules further require that election ballots be printed in an alternative language wherever “the primary language of a significant number of a Local Union’s members is other than English.”  However, the provisions of Article V, Section 4(d) specifically do not apply to the nomination or supplemental nomination voting process.  See, Rules at Article IV, Section 5.  At the IBT Convention, the nomination ballots were printed in the English language only.

The supplemental nomination process is governed by the 1996 IBT International Officer Rerun Election Plan (“Rerun Plan”), as approved with modifications by Judge Edelstein.  United States v. IBT, 88 Civ. 4486 (S.D.N.Y.) (September 29, 1997).  Neither the Rerun Plan nor any of the subsequent modifications provided for the supplemental nomination ballots to be printed in any language other than English.  Because the initial nomination procedures at the IBT Convention were conducted successfully in English and no other language appeared on the nomination ballots, the Election Officer determined that there was no need to conduct the supplemental ballot procedure in any other language. 

C. Sam Theodus

July 9, 1998

Page 1

The protester did not take advantage of his right to observe the printing or processing of the ballots.  Nor did he request samples of the ballots as other candidates did.  The Rerun Plan and its supplements, having been previously approved and adopted by the United States District Court, cannot now be challenged.  In re Jagodsinski, 95 - Elec. App. - 22 (KC) (October 10, 1995); Theodus, PR-119-STC-EOH et. seq. (June 12, 1998), aff’d, 98 - Elec. App. - 355 (GSB) (June 24, 1998). 

Further, the Rerun Plan does not restrict a member’s participation in the supplemental nomination process merely because he or she has not previously been declared a candidate.  Section I.C. of the Rerun Plan states that any member may be nominated as long as he or she is eligible pursuant to Article VII of the Rules.[2]  Under the Rerun Plan, delegates had the right to vote for any member, whether or not the member had previously indicated an interest in seeking International office.  Mr. Theodus has no right to the support of any delegate simply because he had previously declared himself a candidate.

III.  Sufficiency of the Supplemental Nomination Process

The allegations contained in Post-053 are closely related to those previously made by the protester in Theodus, supra.  On the basis of his own hindsight, the protester now argues that the delegates were confused by the supplemental nomination process in that 1) writing in the names of members “is unheard of and absolutely unnecessary,” 2) the ballot did not “require” the delegates to vote only for previously declared candidates, and 3) the ballot instructed the delegates to vote for five candidates, but provided lines for only four.[3]  As a result, according to Mr. Theodus, the final outcome of the balloting did not represent the “true feeling of the delegates” because he did not receive the same number of votes as he did at the initial nominations.

The protester submitted no evidence to show that any delegate was confused by the supplemental nomination process.  Further, as was the case with the allegations contained in Post-052, the protester’s attempt to test the sufficiency of the court-approved procedures at this late date is neither timely nor appropriate. 

C. Sam Theodus

July 9, 1998

Page 1

IV.  Requests to “Hold Back” Ballots

Finally, on the basis of the undisputed facts, the Election Officer finds that no violation of the Rules occurred with respect to the allegations contained in Post-059.  The evidence shows that in the case of Mr. Mosqueda, a representative of the Hoffa Campaign requested only that he “check” with him prior to mailing the ballot in the event that an alternative candidate had been selected.  There is no evidence of any request to permanently “hold” back the ballot and no threats were made.  The Rules at Article VIII, Section 11(c) protect not only the right to vote, but the right to refrain from participating in the election process, as long as freedom of choice is preserved.  Evans, P-302-LU769-SEC (February 6, 1996), aff’d, 96 - Elec. App. - 93 (KC) (February 21, 1996).  In the absence of evidence establishing duress, the request of the Hoffa Campaign to delegates was not in violation of the Rules.

For the foregoing reasons, the protest is DENIED.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within three (3) days 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, 444 North Capitol Street, NW, Suite 445, Washington, DC  20001, Facsimile

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

Sincerely,

Michael G. Cherkasky

Election Officer

MGC:chh

cc:              Kenneth Conboy, Election Appeals Master