IN RE: STEFAN OSTRACH,
Protest Decision 2001 EAD 121
Issued: February 1, 2001
OEA Case No. PR121501WE
Stefan Ostrach, a member of Local 206, 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"). Ostrach alleges that General President Hoffa wrongfully took control of the vote counting process in Local 174's elections for local union officers, and violated Article VII, Section 11(g) of the Rules because his motive for doing so was to do harm to the International Officer candidacy of Bob Hasegawa, a candidate for International office on the Tom Leedham Rank and File Power slate.
Election Administrator representative Christine Mrak investigated the protest.
Findings of Fact
1. Bob Hasegawa has been an active member of Teamsters for a Democratic Union ("TDU") since 1978. He served for several years as the area organizer for TDU in the 1980s and was a prominent supporter of Ron Carey. He became secretary-treasurer of Local 174 in 1991 and ran for Western Vice-President of the IBT on Tom Leedham's slate in 1998. He is probably the most prominent TDU/Leedham supporter (other than Leedham himself) in the Pacific Northwest.
Local 174 conducted their elections for local union officers in November 2000. Scott Sullivan, Hasegawa's opponent for the secretary-treasurer post, is a supporter of General President Hoffa and was active in his campaigns in 1996 and 1998. The election for secretary-treasurer was extremely close. A relatively small number of challenged ballots were and are determinative of the results. General President Hoffa appointed Local 117 secretary-treasurer John Williams as his personal representative to Local 174 under Article VI, Section 1(f) of the IBT Constitution, stating that the purpose of appointment was to "oversee the challenge resolution process." Williams issued a report on the challenged ballots in which he resolved the large majority of the challenged ballot issues against Hasegawa.
The Hasegawa/Sullivan race for secretary-treasurer has had wide attention in the IBT. Thus, according to Hasegawa, Sullivan's local union officer slate raised money from as far away as California to defeat Hasegawa. Moreover, the Hoffa Unity Slate 2001 (the slate of candidates for International office led by Hoffa, hereafter the "Hoffa slate") has distributed a leaflet through its internet web site that prominently features as a sub-part a story about the Local 174 local union officer election entitled "Hasegawa Loses Local Union Election." Its tone illustrates how the Hoffa slate sees what it characterizes as Hasegawa's loss of the local union secretary-treasurer election to Sullivan as being related to the 2001 International officer election. It states:
The big news is the results of Seattle Local 174's officers' election. The pro-Hoffa slate defeated TDU/Leedham poster boy Bob Hasegawa in his own Local Union election. How can Leedham explain having a slate member who was rejected by his membership? He can't!
Hasegawa ran on a TDU platform and received extensive campaign help from Leedham and a personal visit by Leedham's number two man, and TDU boss, Ken Paff.
This is a major defeat for the TDU/Leedham forces. With Pro-Hoffa officers controlling a majority of the Executive Board, Local 174 will no longer serve as a staging area for Leedham campaign activity.
The protest alleges that the acts of General President Hoffa and his designees complained of here were motivated by a desire "to defeat a prominent opponent and candidate on the Leedham slate." The protest acknowledges that "Local Union elections are normally outside the purview of the Election Administrator, [but asserts that] in this case, where the incumbent candidate for General President has abused his powers in unprecedented ways to effect the defeat of a prominent opponent and candidate on the opposition slate, we believe it is essential for you to do whatever is necessary to insure that all votes are counted." In order to understand the protest allegations, a discussion of the conduct of and background for the Local 174 officer election is necessary and now follows.
2. On September 7, 2000, Local 174 adopted rules for its election and published them in their notice of nomination and election. The local union specifically adopted a rule followed by the Election Administrator concerning the eligibility to vote of new applicants for union membership on dues check off. The rule as adopted by Local 174 provides:
11. Voter Eligibility
To be eligible to vote in this election, a member of Local Union 174 must be in good standing with their initiation fees paid in full and their dues paid through October, 2000. Those members in "New Applicant" status, who are paid up in their dues through October, 2000, and who have been making payments on their initiation fees through payroll deduction for a minimum of six (6) months, will be allowed to vote. Members have until 10:00 a.m., November 20, 2000, to pay their initiation fees or any back dues owed at the Local Union office in order to be eligible to have their votes counted. Under the International Constitution, any member on dues check-off shall not lose good standing as a result of failure by any employer to make a proper deduction from any month in which a member has earnings.
No member of the Sullivan slate opposed the adoption of this rule. Local 174 first adopted such a rule (the "6-month rule") for its local union elections after receipt of a letter from then General President Carey to then Local 174 secretary-treasurer Hasegawa dated November 10, 1994. The Carey letter states:
In your letter dated November 2, 1994 you raise an issue regarding the eligibility of new members of Local 174 to vote in the upcoming Local officers' election. Specifically, you ask whether applicants for membership, who have not finished paying their initiation fee, are eligible to vote. You also ask whether it makes any difference, with respect to their eligibility to vote, if the applicant has signed a checkoff card authorizing the deduction of the initiation fee in installments.
Article XIV, Section 1(b) of the International Constitution provides that "[m]embership for new members shall date from the first month for which dues are paid once full payment of the initiation fee is completed. Articles X, Section 5(c) and XXII, Section 4(c) of the International Constitution require an individual to be a member in good standing with their dues paid through the month prior to the election. Article 20 A(a) of the Local Union 174 Bylaws provides that an applicant shall be considered a member if they have executed a written authorization for the checkoff of their initiation fee. However, Subsection A(d) of the same Article provides that no applicant shall become a member until his initiation fee is paid in full.
Since the International Constitution takes precedence over Local Union Bylaws, an applicant only becomes a member eligible to vote after they have paid their initiation fee. However, the Election Officer recognized an exception to this rule where applicants on checkoff have been working and paying dues for 6 months or more. In those cases, the Election Officer considered the individual eligible to vote even though they may not have completed the payment of their initiation fee. This rule was intended to ensure that members would not be unreasonably denied the right to vote. I agree with this interpretation of the International Constitution by the Election Officer and urge the Local Union to adopt this rule.
Local 174 also established an election committee (the "committee") for the local union's officer election. The rules adopted for the election provide for a six-member committee, with an equal number of committee members appointed by each secretary-treasurer candidate. Hasegawa and Sullivan appointed three committee members each. Hasegawa designated committee member Erv Lemon as the committee chairperson. The election rules adopted for the local union election designate the committee members as "election judges."
On November 20 and 21, 2000, the ballot count for the local union officer election was conducted. There were 59 unresolved challenges. TITAN was down and the committee decided to resolve the challenges the next day. They then decided that they would probably deadlock, so they issued a tally referring the challenge resolution procedure to Joint Council 28. The committee members then sealed the ballots.
The tally indicated that 3085 business reply envelopes were received in the designated post office box. Of these, 43 were determined to be void due to lack of identifying information, 119 were determined to be ineligible, 59 were categorized as challenged ballots and were not opened, and 2864 were opened. Of these, six were ruled invalid due to improper marking, two did not contain ballots, and the remaining 2856 ballots were counted. Five local union offices, including secretary-treasurer, were close enough for the 59 challenges to be determinative. Hasegawa trailed Sullivan by five votes among counted ballots.
On November 21, 2000, Sullivan filed a protest of the election with Joint Council 28. He "renew[ed his] challenge of the 50 challenged ballots", claiming, "[m]ost if not all of these were coded as ineligible on the International roster." He further claimed, "[a]lso included [among the challenged ballots] are a small number of ballots cast by individuals who should have been issued withdrawal cards by Local 174 under the International Constitution, and are ineligible."
On November 22, 2000, Hasegawa filed three election protests with Joint Council 28. He claimed that the committee members (the "election judges") "are refusing to resolve approximately 59 challenged ballots for determination of eligibility and count [and that this was] in violation of the IBT Constitution…" He also claimed that "many UPS ballots were ruled ineligible despite the fact that the members were on dues checkoff and the company had deducted dues in their previous paycheck, thereby making them eligible to vote because they would have fulfilled their initiation fee and dues requirements." He also claimed that a Sullivan election observer was ineligible to serve as such, and that this person engaged in misconduct while acting as an observer.
Also on November 22, Hasegawa, as secretary-treasurer and on behalf of the Local 174 Executive Board, wrote Lemon as chair of the committee. Noting the determinative challenged ballots, he cited Article 17, Section E(c) of the Local 174 Bylaws, which provides that "[c]hallenges shall be investigated to determine their validity … if the challenged ballots are sufficient in number to affect the result of the election…," and "direct[ed] the Election Committee [to] proceed to fulfill its duty under the Bylaws to investigate and determine the validity of all challenged ballots." Hasegawa's letter also directed that "the Election Committee thereafter open any challenged ballots ruled valid and issue a ballot tally certification of election results."
On November 24, 2000, Sullivan filed a second protest with Joint Council 28. He alleged that the Hasegawa slate improperly used a TITAN membership list to phone bank, without the same opportunity being provided to the Sullivan slate, and that Local 174 administrative assistant Pat Frey had improperly supplied unsupervised cash payer dues information to the committee, that it then used to resolve eligibility issues.
On November 27, 2000, committee chair Lemon wrote committee members and the candidates informing them "that by direction of the Local 174 Executive Board and the Secretary-Treasurer, the Election Committee has been instructed to investigate and determine the validity of the 59 challenged ballots to the election which are determinative of the outcome of the election as prescribed by Article 17, Section E(c) of the Local Union Bylaws." Lemon scheduled a meeting of the committee for November 30, 2000, to prepare a complete list of the challenged voters from the challenged ballot envelopes as a first step in carrying out the directive. He further advised the candidates that each would have until December 1, 2000, to submit a position statement on the challenges, along with supporting evidence. He further scheduled a recount of the vote, due to the closeness of the result, and set 1:00 p.m. on December 1 as the time for the recount to commence. The candidates were advised of their right to observe these matters.
On November 28, 2000, Joint Council 28 president Jon Rabine (a candidate on the Hoffa slate) wrote Hasegawa and Sullivan. His letter states that "[u]nder the provisions of the International Constitution, Article XXII, Section 5(b), post-election protests or charges 'shall be made to the Secretary-Treasurer of the Joint Council with which the Local Union is affiliated and the protest or charge shall be referred to the Joint Council Executive Board for disposition,' [and that] at the request of Brothers Hasegawa and Sullivan, the Joint Council asserts jurisdiction over the[ir] post-election protests…" Further, Rabine's letter states his appointment of John Williams "to immediately commence an investigation of the charges after due and proper notice to the candidates and the Local 174 election judges." Finally, Rabine's letter "directs Local 174, its officers, employees and agents, to refrain from taking any action which might interfere with the Joint Council's jurisdiction, including, but not limited to, any unilateral effort to resolve the 59 challenged ballots…, and any effort to review the materials currently in storage relating to the election[, and directs that a]ny effort to reconvene or reconstitute the Election Committee must immediately cease."
Thereafter, on November 29, 2000, General President Hoffa wrote Hasegawa, Sullivan, Williams and Al Hobart, the secretary-treasurer of Joint Council 28. Hoffa's letter states that he had received the election protests "concerning the suspended ballot tabulation process in Local Union 174." The letter also states that "[r]esolution of those challenged ballots must be accomplished before the post-election protests are processed [and that] it is in everyone's interest that the voter eligibility determinations be made in a manner which will guaranty that all of the members of the Local Union have confidence in the integrity of the process and the legitimacy of the final tally." The letter continues:
To accomplish these objectives, I am hereby appointing John A. Williams, Secretary-Treasurer of Local Union 117 and Joint Council 28 Trustee, as my Personal Representative to oversee the challenge resolution process. Brother Williams will be assisted in this assignment by TITAN Field Representative Heather Wieker, who will provide technical support for obtaining and verifying the dues and employment history necessary to determine voter eligibility.
The letter further states that after Williams:
prepare[s] a list of the names and social security numbers of the voters who cast the challenged ballots … [and] Wieker supervise[s] development of the information necessary to determine whether any of the members who cast the challenged ballots are eligible to vote[,] [t]he parties will then reconvene at a time to be determined by Brother Williams, to return to the courier company [where the ballots are stored], retrieve the ballot box, and tabulate the challenged ballots cast by members determined to be eligible to vote, if there are any. A revised tabulation will be issued, the materials will be resealed and returned to a secure location. At the point, any member may pursue the protests already filed, or any new protest which may arise from the ballot resolution process. The Joint Council will process those protests in accordance with Article XXII, Section 5(b) of the International Constitution.
The letter directs any person with questions "concerning these directives or the policies of the International Union regarding voter eligibility [to] Gary Witlen of the International Union's Legal Department."
The protestor asserts that the IBT intervened in the above manner based upon its opposition to Hasegawa. The actions that caused the International Union to intervene remain under investigation.[1]
On December 8, 2000, Williams issued his report resolving the challenges. It declared 51 of the 59 challenged voters ineligible and eight eligible, the result of which is that Hasegawa now trails Sullivan by two votes. According to Witlen, Williams issued the report based upon Witlen's advice, which he gave after review of research performed by Wieker. The report did not follow the six-month rule for new applicants discussed above. (The IBT now argues that this rule is inconsistent with the IBT constitution.)
The dispute over the legitimacy of the six-month rule, and other similar issues, is at the heart of the dispute over the challenged ballots in the officer election. The parties are now advocating their respective positions on this issue in the protests pending before Joint Council 28. In addition, Hasegawa claims that the Williams report violates the LMRDA. The IBT, on the other hand, claims that Williams' interpretation is consistent with the IBT Constitution, and has supplied our investigator with correspondence concerning another IBT local union where General President Hoffa took the same position on this issue. That situation arose before the Local 174 controversy. These matters will be argued before Joint Council 28 in hearings on the Local 174 protests scheduled for February 7, 2001.
The IBT has asked that we defer our decision on the merits in this matter until the issues now before the Joint Council are resolved. We grant that request only in part, in view of the fact that the Local 174 delegate and alternate delegate nomination meeting is scheduled for February 11, 2001. We believe that it is important that this matter be resolved as early as possible during the course of the Local 174 delegate election campaign. Accordingly, we will DEFER our decision at the present, but reserve the right to issue a decision on the merits at any time.[2]
In so ruling, we stress our cognizance of the fact that it is not the role of the Election Administrator to regulate IBT local union elections. Our involvement in this matter is necessary only because of the presence of allegations that the conduct of the IBT and General President Hoffa here is improper retaliation against Hasegawa for his candidacy on the Leedham slate in the 2001 International officer election. Thus, the parties' respective constitutional positions are relevant to the Election Administrator here only because we must resolve the protestor's motivational allegations under the Rules.
Finally, we find it necessary to order all parties having possession or control of evidence necessary to the Election Administrator's resolution of this protest to provide our investigator with access to such evidence. This order is necessitated by resistance offered by the present counsel for Local 174 to our investigator's request that she be provided access to election count materials for the officer election, any challenge roster, and other documents relating to the challenged ballots, to aid in our investigation of the protestor's claim that the IBT has shifted its position with respect to the six-month rule based upon its alleged anti-Hasegawa motivation. Counsel suggests that "the Election Administrator [lacks] the authority to open the sealed box [containing these materials] and strongly object[s] to any effort to misrepresent the authority of the Election Administrator's office as a means to gain access to it." Counsel also claims "[o]pening the box in advance of the Joint Council hearings, without notice to each candidate in the election, exposes the Local Union (and the Election Administrator) to criticism and Department of Labor charges for improper conduct."
We reject this claim that the Election Administrator lacks authority to review evidence that is likely to be material to his resolution of a protest that is properly before him, and that alleges retaliatory conduct prohibited by the Rules. Article XII, Section 2(g) of the Rules provides that "[t]he Election Administrator shall have the authority to obtain, or to have the International Union obtain and provide, information necessary to assist in resolving any protest. The Union (including subordinate entities) and all members, candidates, slates and independent committees are required to cooperate with the Election Administrator." Any failure by Local 174 to do so will result in "referral of the matter to the Government for appropriate action under law (including the Consent Order)," as provided for by that provision. The Election Administrator's staff will take appropriate steps to assure security of the materials as to which access is sought, and will inform the United States Department of Labor of these matters.
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, all within the time period 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 121
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
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
IBT Local 174
553 John St.
Seattle, WA 98109
Bob Hasegawa
3121 16th Ave. So.
Seattle, WA 98144
Ervin Lemon
IBT Local 174
553 John Street
Seattle, WA 98109
Scott Sullivan
14112 141st Ct. SE
Renton, WA 98057
Kenneth J. Pederson
101 Elliott Avenue West
Suite 550
Seattle, WA 98119
Jon Rabine
IBT Joint Council 28
553 John St.
Seattle, WA 98109
John Williams
IBT Local 117
553 John St.
Seattle, WA 98109
Paul Drachler
Theiler, Douglas, Drachler & McKee
1904 Third Ave.
Suite 1030
Seattle, WA 98101
Beth Goldman
Assistant United States Attorney
100 Church Street
19th Floor
New York, New York 10007
Christine Mrak
2357 Hobart Ave. SW
Seattle, WA 98116
[1] The protestor also asserts that the committee, and ultimately the Local 174 Executive Board, had the authority to resolve the challenged ballot issues, under the election rules adopted by the local union, the provisions of its Bylaws and the provisions of Article XXII, Section 4(b) of the IBT Constitution, and further asserts that the International Union's intervention here is contrary to these provisions, and is probative of its anti-Hasegawa motivation. Given our deferral of any decision on the merits, discussed below, and our ongoing investigation, we do not address this issue here.
[2] Our investigative staff will attend the February 7, 2001 Joint Council hearing as an observer. Expedited copies of all exhibits and the hearing transcript shall be made available to our investigator.