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ELECTION APPEALS MASTER ORDER (REVISED) This matter is an appeal from the Election Supervisor’s decision 2007 ESD 403, OES Case Nos. P-07-370-013007-HQ and P-07-371-013007-HQ issued July 9, 2007. A hearing was held before me on July 18, 2007. The following persons were heard by way of teleconference: Richard W. Mark, Esq., the Election Supervisor; Jeffrey Ellison, Esq., Steven R. Newmark, Esq. and Alexandra Brandon, summer associate for the Office of the Election Supervisor; David Hoffa on behalf of the Hoffa Campaign; Bradley T. Raymond, Esq., General Counsel of the International Brotherhood of Teamsters; Barbara Harvey on behalf of Teamsters for a Democratic Union; Ira Weinstock, Esq. on behalf of Daniel Virtue, Carlos Ramos, Kevin Cicak and Mark Andreozzi; Kevin Cicak, Mark Andreozzi, Daniel Virtue and Carlos Ramos, members of Local Union 776; Daniel Virtue and Carlos Ramos are the protesters. I issued an interim order dated July 27, 2007 which summarizes the record, the arguments made by the parties and the issues relevant to the disposition of the appeal. Familiarity with that order is presumed. Subsequently, I received the following submissions: Letter from the United States Attorney for the Southern District of New York dated September 12, 2007; letter from Ira H. Weinstock, Esq. on behalf of the protesters dated September 19, 2007; letter from Barbara Harvey, Esq. on behalf of the TDU dated September 19, 2007 and letter from Bradley T. Raymond, Esq. General Counsel of the IBT, dated September 19, 2007. The United States Attorney, a party twelve years ago to the drafting of the Rules amendment in issue here, argues that the language of the Rules amendment which bars retaliation in response to a member’s candidacy for international office, is in fact ambiguous, allowing for an inquiry into the relevant circumstances and drafts that may shed light beyond the four corners of the text, on the intent of the parties who drafted and approved the Rule amendment, and the Federal Court, that adopted and authorized the full body of Rules, and the specific amendment here under review. The United States Attorney states in his letter, at page 2, that “the purpose of the 1995 amendment to the Rules was to address a jurisdictional issue and not a substantive one. As the 1996 Election Officer explained to the Court, the amended rule simply ‘ma[de] explicit what was implicit’ in 1991, i.e. that the Election Officer has the authority to consider any timely post-election protest alleging retaliation even when the retaliation does not affect the outcome of the election… the purpose was not to overturn the Supreme Court’s decision in Finnegan, or any other applicable decisional law under the LMRDA, or Election Rules on what is and what is not prohibited retaliation (emphasis added).” The contemporaneous document relied upon is Election Officer’s Memorandum in Support of 1995 – 96 Election Rules, dated April 25, 1995 (“Memorandum”). That document was given to and presumptively relied upon by Judge Edelstein in Federal Court at the time that the Court gave its approval to the revised Election Rules for 1995 – 96. Section C, paragraph 24, page 42-43 of the Memorandum isolates the critical language:
That language has been carried forward in the present and controlling Rules, those for the 2005-06 international election. See Article XIII, Section 3(b). Bradley Raymond, IBT General Counsel, in his letter makes two different and interesting points. He asserts that the relevant new Rules “language was narrowly tailored to permit an election officer to continue to exercise jurisdiction over a protest alleging pre-election retaliation notwithstanding an intervening certification of election results, at p.4. This draws a distinction between pre and post certification asserted retaliation, since the Ellis outcome sought to be nullified by the Rule amendment involved retaliation that had occurred before the election results were certified, whereas in the case before us the complained of retaliation was post certification dismissals. Mr. Raymond at p. 5 makes the further constitutional point that rejecting the longstanding practice of union patronage embodied in the principle “to the victor belong the spoils,” frustrates both the democratic values of the IBT Constitution and the democratic goals of the Consent Decree. Barbara Harvey, counsel for the TDU, makes the straightforward argument that the Rules and Appeals Master precedent ban all retaliation springing from adversarial political activity, and implicitly, that under this authority there is no such thing as benign retaliation, such as sanctioned by federal case law, particularly that found in Finnegan v. Leu, 456 U.S. 431 (1982). Ms. Harvey also places emphasis on the fact of the ongoing policing viability of the Consent Decree, suggesting that the eradication of racketeering influence in the IBT is a work in progress, and hence by their terms Finnegan and related federal labor law cases are inapposite. Ira Weinstock, counsel for the protesters, asserts that the Rules and the Consent Decree “do not sanction one form of retaliation while permitting another”, Letter, at p. 2. He further observes that the “winner takes all” or “to the victors go the spoils” concepts are not viable under the Election Rules. The critical new evidence in this case is the above quoted language in the Election Supervisor’s 1995 memorandum submitted to Judge Edelstein that specifically references the Rules amendment before us. It is clear that only “improper” retaliation is reached by the Amendment, and that those who drafted, endorsed and approved the amendment intended to draw a distinction between “improper” retaliation and benign retaliation of the type acknowledged by the United States Supreme Court as permissible in the context of a post election democratic mandate to the victors to, in their discretion, clean house of political opponents. It is inconceivable that the professional drafters of the amendment and the supervising Court were not acutely aware of the Finnegan precedent when selecting the terminology “improper” retaliation. We should also note here that there is in this record no record and indeed no
claim of an uttered threat before or after the ballots were counted, no evidence
of any kind (other than the protesters’ assumption) that the dismissals would
not have occurred but for their adversarial campaigning, no plausible
demonstration that sanctioning these dismissals will discourage insurgent
campaigning in future IBT elections, and certainly no evidence that these
dismissals, clearly allowable under an IBT Constitution that has been throughout
the life of the Consent Decree under the constant vigilance of the Federal
Court, are somehow the product of a present racketeering culture in the IBT. Accordingly, the decision of the Election Supervisor is in all respects
affirmed. Dated: October 5, 2007 DISTRIBUTION LIST BY EMAIL UNLESS OTHERWISE SPECIFIED: Bradley T. Raymond, General Counsel Dan Virtue, President David J. Hoffa Carlos Ramos, Business Agent Barbara Harvey Ira Weinstock Ken Paff Jeffrey Ellison Daniel E. Clifton Stefan Ostrach Danna Drori
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