IN RE: MIGUEL GOMEZ,
Protest Decision 2001 EAD 395
Issued: June 26, 2001
OEA Case No. PR062511NA
Miguel Gomez, a member and delegate of Local 763, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). He alleges the Ohio Conference of Teamsters made an improper campaign contribution and improper endorsement of the Hoffa Unity slate and that the Hoffa Unity slate improperly accepted the contribution and endorsement.
Election Administrator representative Jeffrey Ellison investigated the protest.
Findings of Fact and Analysis
The Hoffa campaign held a political rally on the morning of June 25, shortly before proceedings commenced on the first day of the IBT convention. James P. Hoffa, current General President and candidate for re-election, arrived at the rally amidst a large throng of partisans in the cab of a semi-truck owned and operated by the Ohio Conference of Teamsters, a subordinate body of the IBT. The truck's trailer is decorated with large graphics and script lettering indicating its ownership by the conference.
Investigation showed that Todd Thompson, chair of the Hoffa campaign, and Les Singer, president of the Ohio Conference, discussed rental of the truck beginning some two weeks before the campaign event. Singer, who is also a candidate for regional vice president on the Hoffa slate, stated he told Thompson the truck would be in Las Vegas during the week of the convention. Thompson inquired about using the truck for campaign purposes. Singer stated the truck could be rented for that purpose but that he would have to offer it to the Leedham campaign as well. Singer and Thompson then worked out the terms of the rental, including the minimum rental period, compensation of the driver, and reimbursement for a proportional amount of the transportation and storage charges for the truck's presence in Las Vegas during convention week. The parties agreed to the items to be included in calculating the rental cost. However, a precise dollar figure has yet to be determined and the campaign has not been billed. Singer predicts the rental cost will be in the range of $500 to $700.
After agreeing to terms with the Hoffa campaign and reserving the rental of the truck for Monday, June 25, Singer prepared a letter dated June 22 announcing the availability of truck. The letter read in full as follows:
Dear Campaign Manager:
The Ohio Conference of Teamsters truck will be in Las Vegas, Nevada in conjunction with the International Brotherhood of Teamsters Convention from Saturday, June 23, 2001 to Saturday, June 30, 2001. The truck will be available for either campaign to rent on Monday, June 25, 2001.
The cost of renting the truck is set by the Ohio Conference of Teamsters Executive Board. The Ohio Conference of Teamsters must be fully compensated for any costs related to the rental of the truck.
Please contact me regarding this vehicle if you wish to rent same.
Singer prepared two originals of this letter for delivery to both campaigns, but he did not deliver them. Instead, his executive secretary gave them to Christy Bailey, a volunteer for the Hoffa campaign, and she was instructed to make delivery. In the late afternoon of Sunday, June 24, she left the Hoffa campaign headquarters in Bally's Palace 1 & 2, walked past the Leedham campaign in Palace 6 & 7, some 40 paces distant, and continued another 50 paces to the Election Administrator's offices in the Platinum Ballroom for delivery to the campaigns in mailboxes the Election Administrator uses to deliver his correspondence, notices, decisions, and the like to the campaigns. The log indicates Todd Thompson for the Hoffa campaign picked up the contents of the Hoffa campaign mailbox, including Singer's letter, at 4:02 p.m. on Sunday, June 24. Singer's letter for the Leedham campaign remains in its mailbox as this decision is issued.
Article VII, Section 11(c) prohibits use of union equipment "to assist in campaigning unless the Union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance."
Article VII, Section 11(b) declares that the union "may not endorse or otherwise advance a candidacy."
Article XI, Section 1(b)(3) bars a labor organization from contributing,
directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate, except as permitted by subparagraphs (5) and (6) below. No candidate may accept or use any such contribution. These prohibitions extend beyond strictly monetary contributions made by a labor organization and include contributions made by a labor organization and include contributions and use of the organization's … equipment…
The subparagraph (6) exception allows use of union equipment, among other things, only if "the Union is compensated at fair market value for such assistance, and unless all candidates are provided with equal access to such assistance and are advised in advance, in writing, of the availability of such assistance."
Article XI, Section (b)(13) holds candidates "strictly liable to insure that each contribution received is permitted under these Rules." Section (b)(14) of the same article declares that [i]gnorance by a candidate, by a union and/or by an employer that union or employer funds or other resources were used to promote a candidacy shall not constitute a defense to an allegation of a violation of these Rules."
We GRANT the protest. We find the Ohio Conference, through its president Les Singer, violated the Rules in two respects: he failed to give equal access to the truck to the Leedham campaign, and he failed to give actual, effective notice to the Leedham campaign that the truck was available for rental.
With respect to equal access, we find that, although the truck was scheduled to be in Las Vegas for 8 days, the only day the conference made it available for rental by the campaigns was Monday, June 25. At the time the "Dear Campaign Manager" letter was prepared, the Hoffa campaign had already secured the rental of the truck for the choice time period on June 25. Singer's actions in limiting the rental period to one day and negotiating the rental to the Hoffa campaign before even attempting to notify the Leedham campaign of the truck's availability effectively denied the Leedham campaign equal access to the truck.
Moreover, the manner chosen for delivery of notice of the truck's availability to the Leedham campaign violated the Rules. Singer for the Ohio Conference was obliged to give notice to both campaigns. Although the Hoffa campaign had actual notice - and indeed had a rental arrangement in advance of written notice - well before the campaign event, the Leedham campaign never received notice of the truck's availability. Singer was not privileged under the Rules to delegate delivery of notice to the Leedham campaign to an operative for the Hoffa campaign. Further, the Rules require delivery of notice to the campaign directly, not to a mailbox in the Election Administrator's office. In addition, even were we to deem it proper to deliver the notice to the Election Administrator's mailbox for the campaign rather than the campaign itself, delivery in the late afternoon of the day before the only day on which the truck was available for use left an unreasonably short time for the Leedham campaign to decide whether and how to make use of the assistance, especially where the opposing campaign had already secured the prime time slot. Finally, although the Hoffa campaign had negotiated terms of rental with the Ohio Conference, those terms were not recited in Singer's letter. These factors compel our conclusion that Singer's letter to the Leedham campaign - never actually delivered to the addressee - fell well short of the advance written notice the Rules require.
The Rules allow use of union resources to support a campaign only in the narrow circumstance where the union receives compensation at fair market value and notice of the availability of such assistance is given on a non-discriminatory basis. Where the union fails to comply with the strict requirements of the exception, the consequent use of that assistance becomes improper use of the resource, improper contribution to a candidate by the union, improper receipt of the contribution by the candidate, and an unlawful endorsement of the candidate by the union. Ignorance by the candidate that the union has failed to comply with the Rules is no defense to improper receipt of the contribution. We find in particular that the Hoffa campaign was not ignorant of the fact that Singer failed to give proper notice to the Leedham campaign because the act of giving such notice was delegated by Singer to the Hoffa campaign itself.
Remedy
When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interference with the election process.
Article XI, Section 1(d) states that "[t]he remedy that may be imposed by the Election Administrator in resolving any protest concerning a candidate's or campaign's receipt or use of improper contributions will be influenced by the manner in which the contribution was solicited and/or accepted and by whether an appropriate disclaimer was contained in, or issued at the time of, the solicitation."
We order the following remedy:
1. The Ohio Conference of Teamsters is directed to cease and desist from improper assistance and endorsement to campaigns.
2. The Hoffa campaign is directed to cease and desist from acceptance of improper contributions and endorsements.
3. The attached notice shall be read to the assembled Convention by the Election Administrator during the afternoon session held Tuesday, June 26, 2001, before its adjournment for purposes of voting on nominations for trustee and vice president at-large positions.
Because the violations occurred in the presence of a large majority of Convention delegates, we deem it appropriate that the remedial notice be presented to them as well.
A decision of the Election Administrator takes immediate effect unless stayed. No request for a stay will be granted in this case.
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 Administrator 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 all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street NW, Tenth Floor, Washington, DC 20005 (fax: 202-454-1501), all within the time prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2001 EAD 395
NOTICE TO MEMBERS OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS IN ATTENDANCE AT THE IBT CONVENTION
Under the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"), the resources of the IBT or of any of its subordinate bodies may not be used to support or promote the candidacy of any member for International office, except where "the Union is compensated at fair market value for such assistance, and where all candidates are provided equal access to such assistance and are notified in advance, in writing, of such assistance." The Rules also bar Union endorsement of any candidate for International office.
After investigation, the Election Administrator has determined that General President James P. Hoffa, the Hoffa Unity slate and the Ohio Conference of Teamsters have violated the Rules by improperly using the resources of the Conference without equal access and advance notice of the availability of the Conference's resources being afforded to other candidates for International office, including lack of advance notice of the terms by which the Hoffa slate agreed to pay for use of these resources. We find this violation specifically with respect to General President Hoffa's use of the Conference's semi-trailer truck as the means for his arrival at a candidate rally conducted at the site of the IBT convention on the morning of June 25, 2001, the first day of the convention.
To remedy this violation, the Election Administrator has ordered General President Hoffa and the Hoffa Unity slate to cease and desist from accepting or receiving or giving any further improper assistance or endorsement from the IBT or any of its subordinate bodies. We have further ordered the Ohio Conference of Teamsters to cease and desist from improperly offering or giving any such assistance or endorsement.
The Election Administrator has also ordered the reading of this notice by the Election Administrator at the afternoon session of the IBT convention on June 26, 2001, before its adjournment for the conducting of nomination votes for Trustees and International Vice-Presidents at Large.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
DISTRIBUTION LIST VIA HAND DELIVERY:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Miguel Gomez
P.O. Box 1237
Bothell, WA 98041
Les Singer
Ohio Conference of Teamsters
435 South Hawley Street
Toledo, OH 43609
Jeffrey Ellison
65 Cadillac Square, Suite 3727
Detroit, MI 48226