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IN RE: STEFAN OSTRACH, Protestor. Stephen Ostrach, a member of Local Union 206 and treasurer of the Tom Leedham Strong Contracts, Good Pensions slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election (“Rules”). He alleged that the Hoffa 2006 campaign violated the Rules by circulating slate accreditation petitions for individual candidates who are not part of a slate. We issued our decision on this protest in Ostrach, 2005 ESD 39 (December 21, 2005), holding in part as follows:
(footnotes omitted). We concluded the decision as follows:
No appeal was taken from this decision. On December 23, counsel for the Hoffa campaign faxed to our office a document the campaign described as “a signed Declaration of Affiliation with a Slate for the following individuals:” James P. Hoffa, C. Thomas Keegel, Randy Cammack, Fred Gegare, Ken Hall, Carroll Haynes, Ralph Taurone, Robert Bouvier, Tom Fraser, Don McGill, Pat Flynn, Walt Lytle, Jack Cipriani, John Murphy, Ken Wood, Al Hobart, Chuck Mack, Jim Santangelo and Henry Perry. Hoffa campaign counsel’s letter further stated that, “[b]ecause this document was faxed so many times, it appears to be of poor quality, but the signatures are there. I have submitted a ‘before’ version so you can see the difference after all the faxing. Original signatures will be submitted when they are received by my office.”1 The legible, “before” version of the slate declaration lists 20 candidate names in the column for names on the left side of the page, and shows signatures for six (Hoffa, Keegel, Gegare, Hall, Cipriani and Mack) in the column for signatures on the right side of the page. The “after” version of the slate declaration, an almost completely illegible document, appears to have 21 candidate names in the left column and has writing on 19 of the corresponding lines for signatures in the right column. The name “Tyson Johnson” is visible on line 15 of the legible slate declaration form, and he is identified as a candidate for “South VP” from Local 745. Johnson’s signature is not on the legible form, and there appears not to be any writing on the line 15 signature space on the illegible form. Hoffa campaign counsel’s transmittal letter acknowledges that the name of Tyson Johnson appears on the slate declaration form and states that “[t]he only signature we do not yet have is that of Tyson Johnson.” Counsel’s letter concluded as follows: “In accordance with the Rules, the decision in Protest 45, and the previous timely submission by these candidates accreditation petitions [sic], we ask that these candidates be accredited.” We issue this supplemental decision to address the request of the Hoffa campaign. Findings of Fact The writing and printing on slate declaration form that, according to campaign counsel, contains the signatures of all slate members except Tyson Johnson is illegible. Although the shape of the body of text in the “after” version appears similar to that of the “before” version, no candidate name or signature can be deciphered on the form that counsel offers as the signed slate declaration form. The “before” version uses Election Supervisor Form 10, which contains the following instructions:
(Original emphasis). Form 10 also contains the following:
Immediately preceding the spaces for entry of candidate names and signatures, the following text appears:
Although no candidate name or signature can be deciphered on the “after” form the Hoffa campaign submitted, comparison of it to the “before” version makes four things apparent. First, Tyson Johnson’s name appears at line number 15 on the “before” version. The space for signature on the 15th line of the “after” version does not contain a signature. Accordingly, we find, as counsel has represented, that Tyson Johnson has not signed the submitted slate declaration form. Second, no name or signature of the slate treasurer appears on either the “before” or “after” versions of the slate declaration form. Third, no number has been inserted in the space next to the language, “Number of candidates on slate (required).” Finally, the “before” version lists twenty candidates on the slate, leaving numbered line 21 blank. However, the “after” version appears to have information on line 21, including writing in the space reserved for candidate signature. Further, the space for signature on numbered line 19 is blank on both versions of the form. The “before” version indicates that Jim Santangelo is listed as a candidate for “West VP” on line 19. The Hoffa campaign’s transmittal letter asserts nineteen candidates have signed the form, including Santangelo. Based on these observations, the “before” and “after” forms suggest to us that, if Santangelo signed the form (as campaign counsel asks us to conclude), he entered his name and signature on line 21 rather than signing line 19. Analysis Article VIII, Section 1 of the Rules provides in relevant part:
“The purpose of the slate declaration form is to ensure that there is indeed ‘mutual consent between and among all candidates running on a slate’ to their doing so.” McNeely, 2001 EAD 254 (March 22, 2001), aff’d, 01 EAM 55 (April 10, 2001). The Rules do not require that all original signatures appear on the same document; rather, slate members may “overcome the difficulties posed by the geographic separation of their workplaces by obtaining signatures on counterpart originals using facsimile transmissions. To hold otherwise would be to unduly restrain the right of candidates to form slates within the tight time constraints imposed for submission of slate declarations.” Mohawk-Davis, 2001 EAD 117 (January 30, 2001). As the Election Administrator explained in Busalacchi, 2001 EAD 271 (March 27, 2001),
Accordingly, a slate of twenty candidates could satisfy the “mutual consent” requirement by submitting twenty slate declaration forms each containing a single signature, provided all twenty forms listed the same candidates in the same order and each candidate signed at least one of the forms. Assuming without deciding that, except for Tyson Johnson, all candidates identified in campaign counsel’s cover letter signed the slate declaration form, the form does not meet the requirements of the Rules and does not provide evidence that a slate has been duly formed among all of the listed candidates. First, the absence of Johnson’s signature means that the form is insufficient to prove the formation of a slate among all of the listed candidates. The signature of each candidate is, for purposes of the Rules, that candidate’s consent to run as a member of a slate comprised of all other candidates listed on the form. In that sense, each candidate’s decision to join the slate is contingent upon the decisions of all other listed candidates to join the same slate, and there is evidence of slate formation if, and only if, every one of the other listed candidates signs the form. Thus, if all sign, then each listed candidate is bound to the slate. However, if one or more of those candidates listed declines to sign, then no candidate is bound to the slate. Here, each candidate who signed the form did so with the knowledge and consent that he was joining a slate that included Johnson as a candidate. However, because Johnson has not signed the form, he has not consented to join a slate that includes the other listed candidates. Thus, there is no “mutual consent between and among all candidates listed as running on the slate” as required by the Rules, and a slate among all of the listed candidates has not been formed.2 Nor has a slate of those signing been formed, as each candidate’s consent to join depended on all listed candidates joining. Second, the “after” version that campaign counsel asserts is a completed slate declaration form also fails to satisfy the Rules because it does not list and is not signed by a campaign treasurer qualified under the Rules.3 Third, although the number of the candidates listed on the form is not inserted in the space that follows the language, “Number of candidates on slate (required),” we decline to hold that the campaign’s failure to fill in this space renders the form invalid. The inclusion of that information is not required by the Rules; rather, it is a device to insure that additional candidates are not added to the form after any candidate has signed. If the space is left blank, as it is here, the form is subject to additional scrutiny to insure that all signers consented to the inclusion of all candidates, see, e.g., Peters & Ironside, 2001 EAD 113 (January 30, 2001), but it is not rendered invalid on its face. As this decision otherwise indicates, the form fails that added scrutiny. Finally, although campaign counsel assures us of his intention to supply a legible version of the completed slate declaration form (or multiple versions listing the same candidates in the same order and signed by all candidates), the problem the illegibility of the submitted form presents is not merely that we or other interested parties cannot ascertain which candidates have assented to be part of the expanded Hoffa slate. The image degradation resulting from multiple generations of faxing caused the form to lose its legibility long before it reached our office. Indeed, we find it likely that Santangelo completed line 21 on the form with his name and signature because the form was so illegible by the time it reached him that he was unable to make out his own name on line 19. If this is the case, Santangelo also was likely unable to decipher the names of the other candidates listed on the form; he and perhaps others who received the form with a similarly degraded image could not therefore give knowing consent to the inclusion of other candidates on the slate for the plain reason that they could not read the other candidates’ names. For the reasons articulated here, we conclude that the submitted slate declaration form does not comply with the Rules and is therefore of no effect. Because of this, we DENY the Hoffa campaign’s request for accreditation of the candidates for whom it submitted slate accreditation petitions on December 15, 2005, and deem these candidates to be unaffiliated with any slate at this time.4 We repeat that, “if the Hoffa campaign has material to submit to support a contention that a slate has been duly formed, such material must be submitted to the Office of the Election Supervisor by 5:00 p.m. on December 30, 2005 (with copies to be provided to the protestor), together with any argument on why such material complies with the Rules and supports the requested accreditation of slate candidates.” 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 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,
1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the
time prescribed above. A copy of the protest must accompany the request for
hearing. cc: Kenneth Conboy
1 The transmittal letter and the “before” and “after” versions of the slate declaration form are attached to this decision. A second letter from campaign counsel, also faxed to our office on December 23, read in relevant part as follows: “As to the terrible quality of the faxed-many-times Hoffa Slate Declaration, Todd Thompson will be emailing you everything he has to assist in the situation in the hopes that the document will be more legible.” To date, we have received nothing from Thompson. 2 The slate comprised of James P. Hoffa and C. Thomas Keegel remains in effect. Those candidates signed a slate declaration form listing only those candidates. Accordingly, mutual assent between Hoffa and Keegel was achieved. The slate declaration form at issue here seeks to expand the two-candidate slate Hoffa and Keegel previously formed. As indicated here, the expanded slate declaration form is of no effect but does not affect the validity of the original slate of Hoffa and Keegel. 3 We addressed the Rules requirement that the campaign treasurer (who must also be an IBT member)sign the slate declaration in Ostrach, 2005 ESD 29 (December 5, 2005), which concerned the slate declaration form naming candidates Hoffa and Keegel. That ruling allowed the candidates to submit an amended slate declaration form signed by a person eligible to serve as treasurer, and an amended form was in fact submitted. 4 The candidates whose names appear on the Hoffa campaign slate accreditation petitions but who have not submitted a valid slate declaration form are: Robert Bouvier, Randy Cammack, Jack Cipriani, Pat Flynn, Tom Fraser, Fred Gegare, Ken Hall, Carl Haynes, Al Hobart, Tyson Johnson, Walter Lytle, Chuck Mack, Don McGill, John Murphy, Henry Perry, Jim Santangelo, Ralph Taurone, and Ken Wood. 5 We have included on the distribution list the candidates whose names appear on the Hoffa campaign slate accreditation petitions for whom contact information has been supplied to the Office of the Election Supervisor. The email addresses used for those candidates are those that were supplied as the contact for the campaign.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):5
Patrick J. Szymanski Bradley T. Raymond David J. Hoffa, Esq. Barbara Harvey Ken Paff Stefan Ostrach Judith Brown Chomsky Randy Cammack Fred Gegare Ralph Taurone Robert Bouvier Tom Fraser Don McGill Pat Flynn Walt Lytle Jack Cipriani John Murphy Ken Hall Al Hobart Chuck Mack Jim Santangelo Steven R. Newmark Jeffrey Ellison
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