IN RE: HOFFA 2006, Protestor.
Protest Decision 2006 ESD 346
Issued: September 3, 2006
OES Case No. P-06-320-081706-HQ
(See also Election Appeals Master decision 06 EAM 68)
Hoffa 2006 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"). The protest alleged that the Leedham campaign received an unfair advantage when that campaign requested and received approval to use an alternative vendor for email distributions.
Election Supervisor representative Steven Newmark investigated this protest.
Findings of Fact
On March 6, 2006, the Election Supervisor issued an Advisory on Rights of Candidates to Distribute Campaign Literature to Members using IBT International Union and Local Union Email Lists. The advisory designated Real Magnet, an information technology firm, as the sole vendor authorized to receive and use the IBT email list for distributing campaign material. The advisory stated that Real Magnet was selected "to protect the confidentiality of the electronic mail addresses and to limit the use of the IBT email list to authorized, campaign-related purposes."
The use of Real Magnet was first suggested by the IBT. After reviewing the firm's security safeguards, the Election Supervisor authorized the use of Real Magnet.
After the advisory was issued, the Leedham campaign contacted the Office of the Election Supervisor to request that an alternate information technology firm, Unions-America, be authorized to receive and use the IBT email list. The Leedham campaign demonstrated that Unions-America is respected in the industry and is able to provide the necessary security safeguards with respect to the IBT list. Further, Unions-America is unionized and is less expensive than Real Magnet.
Investigation confirmed that Unions-America was established over six years ago and bargains collectively with GCC Local 767M. Neither the IBT's Communication Department nor its internet coordinator was aware of Unions-America. The firm's founder, Timothy Johnson, told our investigator that the firm is currently publicizing its services to potential union clients, including the IBT. Dan Rutherford, the IBT's internet coordinator, provided our investigator with a list of requirements to insure that Unions-America would have the capability to perform email distributions while maintaining security. Unions-America demonstrated the ability to meet the criteria identified by Rutherford.
Investigation further revealed that Real Magnet is not unionized.
On August 15, 2006, the Election Supervisor issued a supplemental advisory permitting candidates to use other information technology firms for electronic mail distribution of campaign communications provided that the candidate or campaign first obtained approval from the Office of the Election Supervisor. Supplemental Advisory on Rights of Candidates to Distribute Campaign Literature to Members Using IBT International Union and Local Union Email Lists (August 15, 2006).
This protest followed. Hoffa 2006 complained that it already expended funds to contract with Real Magnet and was not given an opportunity to use an alternate vendor. Hoffa 2006 further alleged that the Office of the Election Supervisor improperly granted preferential treatment to the Leedham campaign by issuing the supplemental advisory that permitted use of alternate vendors.
Analysis
Article VII, Section 7(a)(4) of the Rules provides that "the Union shall … honor reasonable requests by candidates for distribution of literature through electronic mail … The manner of distribution of candidate literature by electronic mail shall be subject to such Advisory or further guidelines as may be established by the Election Supervisor for the purposes of facilitating distribution of literature by electronic mail, protecting the confidentiality of electronic mail addresses, and protecting the privacy of electronic mail recipients."
Contrary to its claim, Hoffa 2006 was not denied the opportunity to use an alternate vendor. Had Hoffa 2006 sought to use another vendor, it could have proposed it. Instead, Hoffa 2006 voiced no opposition to Real Magnet until the Leedham campaign identified, researched, and evaluated Unions-America, a unionized and less expensive alternative to Real Magnet.
The Election Supervisor's duty under Article VII, Section 7(a)(4) is to facilitate email campaigning while protecting the integrity of the IBT's list and the privacy of the email addressees. We considered the Leedham campaign's request to use Unions-America against this standard found that it met the requirements of this provision. Hoffa 2006 does not contend that Unions-America should not be an authorized email vendor.
Instead, Hoffa 2006 asserts that we granted the Leedham campaign a preference by authorizing use of Unions-America. A claim of preferential treatment rests on a premise that two similarly situated entities are treated dissimilarly. To establish such a claim in this circumstance, Hoffa 2006 would have to show that it proposed a qualified email vendor and was denied authorization to use that vendor. As the campaign did not do so, its claim of preferential treatment is meritless.
Accordingly, we DENY the protest.
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
885 Third Avenue, Suite 1000
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, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, 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
2006 ESD 346
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Steven Newmark
Office of the Election Supervisor
International Brotherhood of Teamsters
1725 K Street, NW, Suite 1400
Washington, DC 20006
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com