IN RE: FRED GEGARE, Protestor,
Protest Decision 2010 ESD 1
Issued: May 31, 2010
OES Case No. P-002-052910-NA
Fred Gegare,candidate for IBT General President, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules").The protest alleged that the Hoffa-Keegel 2011 campaign violated the Rules by faxing accreditation petitions to local unions for distribution on campaign literature tables and bulletin boards.
Election Supervisor representative Jeffrey Ellison investigated this protest.
Findings of Fact and Analysis
On May 25, 2010, the Hoffa-Keegel 2011 campaign sent a 6-page fax to all IBT local unions and joint councils. The transmission consisted of a cover sheet, a 3-page campaign statement, and 2 pages of accreditation petitions. The cover sheet was addressed "To: Teamster Local Union" and requested that the recipient "distribute [the attached] material by placing it on literature tables and bulletin boards open to all candidates." The first 2 pages of the 3-page campaign statement were addressed "Dear Hoffa-Keegel 2011 Slate Supporters;" it read in part:
It is time to begin collecting signatures for the Hoffa-Keegel 2011 Slate! We anticipate unprecedented support for this petition drive and want to provide you with all the resources you will need to implement a successful program in your area. Below is all the information you should need to gather signatures from the Hoffa-Keegel 2011 supporters in your area.
This message bore the signatures of James Hoffa, Thomas Keegel, and 23 other persons who either currently hold or seek office with the IBT. The third page of the campaign statement was titled "Hoffa - Keegel 2011 Petition Drive Information" and provided information about where to get accreditation petitions, the number of signatures needed for accreditation, who is permitted to sign the petitions and what information they must provide, who is permitted to circulate the petitions, and where the completed petitions should be submitted. The final two pages of the fax were blank accreditation petitions for slate candidates (Election Supervisor Form 16), one in English, other in Spanish.
After sending the 6-page fax just described to all IBT local unions and joint councils, the campaign sent a 3-page fax to the same fax list the same date. The cover page of the second fax read:
Earlier today the Hoffa-Keegel 2011 campaign sent a fax to all local unions and joint councils containing a letter of support from the Hoffa-Keegel 2011 Slate, instructions for the petition process and a petition to accredit James P. Hoffa for General President and C. Thomas for General Secretary-Treasurer. We have been notified that some fax machines improperly printed the petition.
Please use on [sic] the attached petition form for James P. Hoffa for General President and C. Thomas Keegel for General Secretary-Treasurer.
Two slate accreditation petition forms, one English, the other Spanish, followed the fax cover sheet. These listed Hoffa and Keegel as candidates for election to General President and General Secretary-Treasurer, respectively.
Under Article X of the Rules, a candidate for International office may be certified by the Election Supervisor as an accredited candidate by obtaining the petition signatures of at least 2.5% of the relevant membership pool. An accredited candidate is permitted access to IBT membership lists for campaign purposes and is entitled to have his/her campaign literature published in the "battle pages" of certain editions of union-wide publications.Article VII, Sections 2, 3 & 10.
With the May 25 faxes, the Hoffa-Keegel 2011 capaign sought to distribute its accreditation petitions to campaign loyalists and supporters on the literature tables or bulletin boards all local unions are required to establish under Article VII, Section 7(h) of the Rules.It is settled law that campaign literature tables and bulletin boards established under the Rules may not be used for distribution of accreditation petitions, Schaffer, 2000 EAD 8 (August 1, 2000), affirmed as modified, 00 EAM 02 (August 17, 2000), because such petitions are destined for distribution outside the confines of the local union and as such "must be sent to a supporter's home address or to a campaign address." Buck, P919 (November 5, 1996), aff'd, 96 EAM 274.This holding has been repeated in Election Office Advisories on the use of campaign literature tables and bulletin boards since the 2000-2001 election cycle. See, e.g.,Advisory on the Use of Literature Tables or Bulletin Boards For the Distribution of Campaign Literature Inside Union Halls, issued September 15, 2005, viz
The purpose of requiring locals to set up literature tables or bulletin boards at union halls is to allow candidates to communicate directly with members who make use of the hall. It is not to allow candidates to communicate with union officials in the guise of providing literature for literature tables or bulletin boards. Nor is it to allow candidates to use the locals as drop-off points for their literature. It remains a violation of the Rules for candidates to use literature tables or bulletin boards: 1) to communicate directly with campaign loyalists as opposed to the general membership; or 2) to distribute literature that by its nature or terms is meant for further circulation outside the union hall, like accreditation petitions. Schaffer, 2000 EAD 8 (August 1, 2000), aff'd as modified, 00 EAM 2 (August 17, 2000); Ostrach,(October 2, 2000),aff'd, 00 EAM 7 (October 10, 2000).
(Emphasis supplied.)
Based on these precedents, the Hoffa-Keegel 2011 campaign's faxing of accreditation petitions to local union halls for distribution via the literature tables violated the Rules
The May 25 faxes also violated the Advisory on literature tables and bulletin boards, which limits each candidate's or slate's campaign material to one single-sided 8 ½" x 11" page. The purpose of this limitation is two-fold. First, because the Advisory has stated that "[l]ocals should not charge for the first 50 copies of each piece of campaign literature," the one-page limitation caps at a minimal level the expense that local unions will incur in receiving and photocopying faxed campaign literature. In addition, for local unions that use literature bulletin boards, it insures that that the literature of one slate or candidate will not overwhelm the limited space available. The 3-page campaign statement of the Hoffa-Keegel 2011 was therefore too long.
On Thursday, May 27, our office was contacted by several local unions that had received the faxes described above requesting information concerning their obligations under the Rules to establish and maintain campaign literature tables or bulletin boards, and whether accreditation petitions could be circulated through such literature tables. Through these inquiries, we were supplied the faxes that the Hoffa-Keegel campaign transmitted on May 25.
Before the instant protest was filed, we contacted counsel for the Hoffa-Keegel campaign on Friday, May 28 to advise that accreditation petitions may not be sent to local unions for distribution on campaign literature tables or bulletin boards. In the discussion that ensued,we also advised that literature intended for distribution or display on local union literature tables or bulletin boards may not be longer than one page. After consultation with his client, campaign counsel conceded that the faxes were improper under the Rules and proposed to fax a statement to that effect to the original fax recipients to remedy the matter.
While we were considering the campaign's proposal, the instant protest was filed. The protest alleged some of the same Rules violations that we raised with counsel for the Hoffa-Keegel 2011 campaign and further protested the use of local union resources (viz., fax machines) to receive the material. As remedy, the protest requested that we "disqualify the Hoffa-Keegel 2011 campaign from participating in the 2010-2011 International Officer Election."
On Sunday, May 30, 2010, the Hoffa-Keegel 2011 campaign faxed to the original fax recipients the following notice:
The Hoffa-Keegel 2011 Campaign recently sent a fax to Teamster affiliates that included a fax coversheet, a three-page campaign statement concerning slate accreditation petitions, and two slate accreditation petition forms.
The Election Supervisor has advised us that what we sent you violated the Election Rules in two ways. First, while the campaign statement is literature of a type that may properly be displayed on literature tables/bulletin boards, the Rules require that the literature be a one-page, single-sided 8 ½" x 11" sheet. The reason for the page limitation is to limit the expense that might otherwise fall to local unions in photocopying campaign flyers longer than one page.
Second, the slate petition that was included with the campaign statement is material that is not allowed to be distributed or displayed at all on local union literature tables and bulletin boards.Under the Advisory on the Use of Literature Tables or Bulletin Boards for the Distribution of Campaign Literature Inside Local Union Halls, available at www.ibtvote.org, slate or candidate petitions cannot be distributed or displayed on local union literature tables and bulletin boards. The Election Supervisor has further advised us that petitions that are faxed to Joint Councils or Local Unions from the Hoffa Keegel Campaign will be considered invalid and should not be used for any purpose.
Please discard the campaign statement and petitions faxed to you earlier this week. If you have already made the fifty copies that we requested of the material we faxed you, please send us a statement of your copying expenses, at the 12¢ per page cost set forth in the Advisory, and we will reimburse you for that expense.
Please contact the campaign at 202.739.1246 or 202.739.1163 for information regarding this notice, petitions and the petition drive.
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.
We direct the Hoffa-Keegel 2011 campaign to cease and desist from transmitting accreditation petitions or campaign literature longer than a single one-sided page to local unions for distribution on campaign literature tables or bulletin boards.
We further direct the Hoffa-Keegel 2011 to advise the original fax recipients in writing that accreditation petitions may not be placed on literature tables or bulletin boards for distribution and that any such petitions that were faxed to local unions or joint councils will be considered invalid in the accreditation process. For recipients of the original fax transmissions who have already honored the campaign's request that copies be made of the material faxed them, the campaign is to provide reimbursement, at 12¢ per page, for those copies. Based on the notice the campaign faxed to the original fax recipients on May 30,2010, we will deem this aspect of the remedy RESOLVED upon receipt of a compliance affidavit that includes listings of the original fax recipients and the recipients of the remedial notice, submitted to us within 3 working days of the date of this decision.
We order no remedy concerning the cost to local unions and joint councils of the use of their fax machines for the faxes at issue here. Once brought to its attention, the campaign quickly recognized the Rules violations and sought to remedy them. These actions demonstrate a desire to comply with the Rules. The Advisory further contemplates that material appropriate for literature tables may be distributed to local union fax machines, so that resource is equally available to all candidates. Under these circumstances, we exercise our discretion to refrain from imposing every possible remedy that a violation might otherwise warrant.
Finally, the protestor's request that the Hoffa-Keegel 2011 campaign be disqualified from participating in the 2010-2011 IBT International Officer Election is rejected as disproportionate to the violations found here.
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:
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 the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1801 K Street, N.W., Suite421 L, Washington, D.C. 20006, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2010ESD 1
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington,D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington D.C. 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
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
Fgegare663@new.rr.com
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com