IN RE: FRED GEGARE (After Remand), Protestor.
Protest Decision 2011 ESD 73
Issued: January 20, 2011
OES Case No. P-004-060410-NA
I. Introduction
A. The June 24, 2010 Protest Ruling
Gegare, 2010 ESD 4 (June 24, 2010), found that the Hoffa-Keegel 2011 campaign used the signature of Henry Perry without his knowledge or permission, in a fax sent to all IBT local unions and joint councils on May 25, 2010, to convey an endorsement by Perry of James Hoffa's candidacy for re-election as IBT General President. We found that the Hoffa campaign used a digital image of Perry's signature that it had obtained from him in 2005 for use in campaigning for the Hoffa 2006 slate to endorse the Hoffa candidacy in 2010, and that it did not give notice to or obtain permission from Perry to use his signature for that purpose in 2010. We found that at the time the Hoffa campaign used Perry's signature in May 2010, he had not endorsed and was not endorsing Hoffa's candidacy for re-election, and the campaign's use of his signature to convey an endorsement he had not given misappropriated that endorsement from him, in violation of the Rules.
The conclusion that Perry did not endorse the Hoffa campaign at the time the May 25 fax was sent rested on evidence that Perry, elected to his current position as IBT trustee as a candidate on the Hoffa slate in 2006, had not granted and indeed was withholding his support for the Hoffa candidacy in the current election cycle because he said he had been told by IBT South region vice president Tyson Johnson that he would not be on the slate. Perry also said that Johnson asked him to resign his International trustee position to make way for another person to be appointed to the vacancy who would then run for election to the position. Finally, Perry said that Johnson told him that, if he resigned his position but continued to support the Hoffa slate publicly, circulate accreditation petitions and raise money for the slate, Perry would be continued as an employee of the IBT at his trustee salary and benefits until the date that his term as trustee would have ended. Perry said the proposal Johnson made was repeated to him by General President Hoffa in a subsequent phone call. Perry disputed the premises of the proposal and told Johnson and Hoffa that he was an asset to the Hoffa campaign and should be on the slate. According to Perry, the issue of his inclusion on the Hoffa slate was not resolved as of the date of the May 25 fax, he did not support the slate at that time, and he did not consent to the use of his signature by the campaign to convey such support.
On this evidence, we concluded that Perry's endorsement had been misappropriated by the Hoffa campaign, in violation of the Rules. We ordered the campaign and its two managers to cease and desist from using facsimiles of signatures in their possession to endorse, or to publicize the endorsement of, a candidate or slate, unless the person whose signature it is gave express permission for such use. We also ordered the campaign and its managers to fax a notice to the recipients of the unauthorized endorsement advising that they had violated the Rules by using Perry's signature without his permission. The campaign complied with this remedy.
B. Appeal and Remand
Gegare appealed the decision, agreeing that the Hoffa campaign had misappropriated Perry's endorsement but contending that the remedy ordered was insufficient to mitigate the harm caused by the violation or to deter similar misconduct in the future. The basis for Gegare's claim on appeal, echoed by that of intervener Frank Halstead, was that Johnson had offered Perry union money - in the form of a job that would extend through the date his trustee term of office would expire - if he would resign his trustee position and allow appointment of a replacement who would run with the Hoffa slate. In various characterizations made on appeal, this was "use of union money or resources to further the interests of a candidate or campaign" or a "bribe contingent upon Perry's performance of services to the campaign."[1]
Hoffa-Keegel 2011 contested the appeal, arguing that the remedy was more than sufficient because the violation we found was not the result of willful misconduct. The campaign asserted that the campaign's managers believed that Perry supported the slate based on objective evidence available to them and that its managers' failure to obtain Perry's permission to use his signature on the May 25 fax was inadvertent.
>The Election Appeals Master noted that we "explicitly declined to find as a fact whether or not either or both Tyson Johnson and General President Hoffa told Perry he was off the ticket for re-election as International trustee." The Election Appeals Master continued:
The Election Supervisor, in justifying his narrowed investigative focus, states that the only issue is whether use of Perry's name on the endorsement sheet was without Perry's consent. This then supports a finding that the Rules violation found was the result of benign and innocent inadvertence, justifying the most mild of remedies. This outcome does not therefore resolve the question of whether or not Perry in fact supported the ticket at the time his endorsement was inadvertently published.[2]
Amplifying on this point, the Election Appeals Master noted that the investigative record does not resolve whether "Perry's conduct in publicly standing with Hoffa Slate supporters in Las Vegas shortly before the transmission of the fax containing his endorsement undermines Perry's credibility in his assertion that he was not a Hoffa Campaign supporter on May 25, 2010. Of course, the finding that the Perry endorsement was in fact a) misleading and b) an improper campaign contribution turns on this issue."[3]
Based on this review, the Election Appeals Master remanded the case "for a comprehensive investigation of the matters alleged by Henry Perry relating to his conversations with Messrs. Johnson and Hoffa. Adequacy of remedy should be addressed in light of the investigative outcome."[4]
C. The Remand Investigation
To investigate the separate interactions between Perry and Johnson and Perry and Hoffa, we took sworn testimony from Henry Perry, Tyson Johnson, James Hoffa, Christy Bailey (Hoffa campaign operative), W.C. Smith (Executive Assistant to the IBT General President and principal officer of Perry's joint council), and Nate Jackson (principal officer of Local Union 1196 and a corroborating witness). Evidence gathered through these depositions led us to obtain the sworn testimony of IBT trustees Frank Gallegos and Ferline Buie and IBT West region vice president Rome Aloise. We also took the depositions of Fred Zuckerman (IBT carhaul director and candidate for IBT Central region vice president on the Gegare slate), Brad Slawson, Sr. (IBT Central region vice president and candidate for vice president at large on the Gegare slate), and C. Thomas Keegel (IBT General Secretary-Treasurer and former candidate for re-election on the Hoffa-Keegel 2011 slate).[5] We inquired about the existence of documentary material that might corroborate the content of various conversations described only in testimony. None of the witnesses had any such material (i.e., email, memos, calendars, phone logs).
D. Summary of Factual Findings
On the factual investigation concerning Henry Perry, we find after remand that Perry did not support the Hoffa 2011 slate at the time his facsimile signature was reproduced without authorization on the May 25, 2010 campaign fax. Johnson told Perry at the IBT Unity conference in early May 2010 that Perry would not be on the Hoffa 2011 slate because Hoffa did not believe he would win his local union's officers election or delegates election, both of which would be held in the coming year. Johnson further told Perry that Hoffa wanted him to resign his IBT trustee position and, if he did so, he would be appointed to an IBT position that would pay him salary and benefits equal to his IBT trustee compensation, a position he could hold until the time his trustee position otherwise would end, and then he would retire. We find that Johnson told Perry that the proposal included a condition that Perry support the Hoffa slate by getting petition signatures and raising money for the slate. We conclude that Perry disputed the premises of Johnson's proposal and subsequently spoke directly to Hoffa by telephone about why he should be included on the slate. Hoffa made the same proposal to Perry and ended their conversation stating that there was no need for an immediate decision as the proposal could be discussed later. Perry nonetheless rejected the proposal made by Johnson and confirmed by Hoffa and stated his intention to run for re-election. Others associated with the Hoffa 2011 campaign had no knowledge of the proposal to Perry and were sending a conflicting message to Perry that Perry was included on the slate. From Perry's perspective, the political maneuvering and strategy around the gestation of the Hoffa 2011 slate left him in limbo with no firm commitment of inclusion on the slate. Lacking a clear statement of inclusion, Perry did not support the Hoffa 2011 slate at the time the May 25 campaign fax circulated.[6]
We also find that a proposal similar to the one put to Perry was presented to Frank Gallegos, an International trustee who had announced that he would not seek re-election. We find that IBT West region vice president Rome Aloise proposed to Gallegos that he resign his trustee position in favor of appointment as an International representative that would pay him the same salary and benefits through the end of his trustee term. We find that the proposal to Gallegos was made so as to permit General President Hoffa and the GEB to appoint a replacement trustee who would then run with the Hoffa slate in the 2011 election. Gallegos considered and then rejected the proposal.
Finally, we find that IBT vice president at-large Ken Hall offered Fred Zuckerman, IBT carhaul director, a raise in salary and enrollment in the IBT retirement plan in exchange for dropping his candidacy for International office and supporting the Hoffa slate. Zuckerman rejected the proposal.
II. Findings of Fact
>As described in Gegare, 2010 ESD 4 (June 24, 2010), on May 25, 2010, the Hoffa-Keegel 2011 campaign sent a 6-page fax to all local unions and joint councils. The first 2 pages were a letter on Hoffa-Keegel 2011 letterhead addressed to "Hoffa-Keegel Slate Supporters" that announced the start of the campaign's accreditation petition drive. Among other things, the letter said:
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.
* * *
We thank you again for your continued support of the Hoffa-Keegel 2011 slate.
The letter bore the names and signatures of 24 current IBT officers and 1 candidate for IBT office. One of the signatures was Henry Perry's, but Perry did not sign the letter or authorize his name and signature to appear on it, as he did not know the letter had been prepared until after it was sent.
Perry told our investigator that he did not endorse and would not have endorsed the Hoffa-Keegel 2011 slate in May 2010 because earlier that month he was told by two individuals (both of whom are aligned with the slate and authorized use of their signatures on the May 25 letter) that he was not being included on the slate for the upcoming International officer election.
A. Events at the May 2010 IBT Unity Conference
The IBT Unity conference took place at Bally's Hotel and Casino in Las Vegas on May 10 and 11, 2010. Some attendees arrived earlier because of other meetings and events associated with the conference.
Perry testified at his deposition that he went to the 2010 IBT Unity conference expecting that he would run for re-election to his IBT trustee position in the 2011 race and that he would do so as part of the Hoffa slate. He said: "I felt that I did a good job and I was a strong supporter and I felt that I carried the respect that one should have to run as a member of the General Executive Board. I was committed. I had been committed to that slate and I felt that I was going to be a part. I had no idea that I was not going to be a part until the Unity conference."[7]
Nate Jackson is principal officer of Local Union 1196 in Memphis, located about a mile from Perry's local union hall. Jackson testified that he has known Perry for several years and speaks with him frequently.[8] Jackson testified that Perry personally had indicated to him some time well before the Unity conference that Perry was "thinking about" retirement.[9] The retirement discussion was not specific.[10] Jackson attended the 2010 Unity conference. Jackson testified that, by the time of the Unity conference, he understood that Perry intended to run for re-election as International trustee on the Hoffa slate.[11]
Perry arrived for the Unity conference on Thursday, May 6. A meeting of the General Executive Board was scheduled for Saturday morning, May 8, at 9 a.m. Immediately preceding the GEB meeting, the Hoffa slate assembled in another part of the hotel. Although Perry heard by "word of mouth"[12] that the slate meeting was scheduled, neither he nor the other IBT trustees, Frank Gallegos and Ferline Buie, were invited to it.[13] Perry did not attend the slate meeting because he was not invited.[14]
Q Did the lack of an invitation to the slate meeting cause you any doubt about whether you would be on the slate or not?
A Absolutely, it did.
Q Why did it cause you doubt?
A Because when I ran the first time [in 2006], when they had the slate meeting, I was a part. Each one that they had that I knew of they had I was a part of all of the slate meetings. And I felt that there was something going on if I was not invited to attend the slate meeting.[15]
Arriving a few minutes early for the GEB meeting scheduled for 9 a.m. that day, Perry spoke with the two other IBT trustees and learned they had not been invited to the slate meeting either. That Gallegos had not been invited did not surprise Perry, as "it was known that [Gallegos] was not planning to run."[16] But Perry said that Buie told him "[s]he wasn't invited as well and she said she didn't know why, … but she was concerned that she wasn't invited."[17]
The Unity conference commenced Sunday afternoon, May 9. At the start of the formal proceedings, the GEB was introduced to the conference, with each member (Perry included) appearing from behind the stage curtain when announced. Following the conference session, Hoffa campaign supporters were leafleting conference-goers in the elevator lobbies and other public areas of the hotel with a flyer announcing the campaign kick-off event for the Hoffa-Keegel 2011 campaign, to take place at 4:30 p.m. that day in a hotel ballroom on an upper floor. Perry received one of these flyers[18] and attended because "I was thinking that I might be a part of the slate even though I had some doubt."[19] He explained that when he learned the other trustees had not been invited, he considered that "[i]t might have been they just didn't invite the trustees," and the decision "might not have been personal to [Perry.]"[20]
Perry walked into the event "kind of late … I know Jim Hoffa was making his speech and I know they were kind of rallying about the slate."[21] Although Perry could not recall the precise words, something "was said to summon people to the stage."[22] Perry's understanding was that "people who were on the slate were to go up on stage."[23] However, Perry did not "immediately start moving toward the stage … [b]ecause I was not invited to the slate meeting. And I felt that if I was going to be a part of the slate then I should have been invited to the slate meeting and I was not going to go up there until someone told me to come and be a part."[24] Christy Bailey, a Hoffa campaign manager, soon did just that. According to Perry, "Christy Bailey came to me and said 'Henry, you're supposed to be on stage. Go on stage. Go on stage.' … She was kind of in haste for me to get on stage."[25] So Perry went on stage with the Hoffa-Keegel 2011 slate. Perry testified that when Bailey told him to go on stage, "that kind of put me to thinking that maybe I am part of the slate … [b]ecause … she should know who was on the slate," given her position with the campaign.[26]
Bailey testified that no one communicated to her whether Perry was on or not on the slate. Those decisions "[g]enerally at some point [are] told to us … by the General President."[27] As Hoffa had not told Bailey that Perry was not on the slate, Bailey assumed "that because he was a sitting [GEB] member and … was going to run again, that he would be on the slate."[28] Based on this assumption, she told Perry "we need you up on the stage now, Henry."[29]
Photos supplied to us by the Hoffa campaign show Perry on stage with other slate members at the campaign kick-off event. Most were wearing Hoffa-Keegel 2011 campaign stickers on their lapels. Perry was not because, when he entered the event, he had doubts that he was part of the slate,[30] "and I knew if I wasn't invited to the slate meeting I was not going to be a part of the slate and in all probability I wouldn't be supporting the slate."[31] But after being directed by Bailey to go up on the stage, Perry "did consider that I might be a part of the slate. I wasn't totally convinced, but I did feel that I probably was going to be part of the slate."[32]
Following the kick-off event, Perry returned to the main floor of the hotel where a Unity conference reception sponsored by the IBT was underway. As he entered the reception, Tyson Johnson was heading out. Perry testified "[Johnson] approached me and said 'Henry, I need to see you for about five minutes tomorrow morning backstage about 8:30.' And I said, 'okay.'"[33] Johnson said nothing further to Perry that night, nor did he explain the purpose of the meeting he requested.[34] Perry said he has known Johnson for more than 10 years, that Perry's local union is in the IBT South region for which Johnson is IBT vice president, and that he has had frequent dealings with Johnson,[35] so it did not strike Perry as unusual that Johnson would want to speak with him.[36]
Johnson denied speaking with Perry on the evening of Sunday, May 9, and denied requesting or arranging a meeting with Perry for Monday morning, May 10.[37]
Perry kept the meeting he said Johnson requested, arriving backstage at about 8:30 Monday morning, May 10, to find Johnson already present. Perry testified:
We greeted each other as normal with a handshake and he just says, I think he used the word 'pal, I needed to talk to you.' He says 'Jim [Hoffa] wanted to pull you aside and talk to you about something. So I told him to let me talk to you, that I knew you, and I felt like I could talk to you better.
'What he want to do,' he said, 'we're not kicking you to the' - I believe the words he used was - 'we're not kicking you to the curb. But we understand you've got a full slate coming at you that's running against you for your local union election out of YRC, but don't think you can win your local union election. Neither do we think you can win your delegate election. So we're going to ask you to step down. Jim wants you to step down and he appoint somebody to fill the remainder of your term and he will appoint you a position and pay you your salary until the end of the term. And then after the end of the term, you just go ahead and retire.'
That was basically the conversation that he had and I did respond. 'Tyson, I have a problem. I don't understand what you're basing your theory on.' I said, 'I've been running for election at Local 667 ever since 1986.' I say 'I have yet to lose one.' I said 'if I lose this one it will be the first one that I ever lost a local union election.' I said 'I've had problems with the delegate elections.' I said, 'but I think I discuss that with Jim Hoffa back when it happened in San Jose because he had some concerns about it.' He questioned me about it and I told him, I said 'we had the issue with the central states pension. The members were upset about that and also I've had a problem selling the Hoffa name at Local 667.' And he immediately told me. He said 'well, you call Jim early next week. Call him early next week.' And so I said, 'well, I will call Jim.'"[38]
Perry's meeting with Johnson lasted no more than 5 minutes.[39]
Johnson denied meeting with Perry Monday morning, May 10, denied telling Perry that he would not be on the Hoffa slate for the 2011 election,[40] denied telling Perry that he didn't think Perry could win his local union election or his delegate election,[41] denied telling Perry he should resign his position as International trustee,[42] denied telling Perry that his resignation would permit Hoffa to appoint a replacement trustee who would then run with the Hoffa slate,[43] and denied telling Perry that if he resigned his salary would be continued for the rest of his term as trustee provided he supported the Hoffa slate by raising money and campaigning for it.[44] Johnson further testified that he was not asked by Hoffa to convey the message and offer to Perry and would not have done so if asked: "I am not a water boy."[45]
Johnson stated he did speak briefly with Perry[46] on Sunday, May 9, backstage in the convention hall before GEB members were introduced at the start of the Unity conference.[47] Johnson testified he greeted Perry and said, "'Henry, I hear you're going to retire.'[48] And Henry gave me a little startled look, says, 'No. I'm running. I'm running for office.' I said, 'Well, good.' I said, 'Henry, how does your local union election look?' He says, 'It looks good. … We'll win.' … I just said, 'How do you think you look for your delegates election?' He said, 'I'll win.'"[49] Johnson said Perry briefly stated his view that the challengers in the local union officer election were ineligible for nomination. Beyond that, Johnson said nothing further was discussed.[50]
Johnson testified that on Monday morning, May 10, he addressed the conference, giving an "update on YRC/ABF."[51] He said he was "scheduled for 10:15 [a.m.]"[52] and he arrived, ready to take the stage "by at least a few minutes after 10:00 [a.m.]"[53] Before that, Johnson said he met Greg Alden and Gordon Sweeton "in the sidewalk café" in the hotel complex. "They were finishing breakfast. … I had coffee, reviewing my comments to speak about. And … Gordon and I left the sidewalk café after the Unity conference had started,"[54] entered the conference hall, went backstage "and waited for my cue to come on stage."[55] At his deposition, Johnson produced a minute-by-minute agenda[56] for the Monday session of the conference showing his address was scheduled for 10:15 a.m. Video of the conference, which commenced at 9:00 a.m. that morning, showed Johnson being introduced on stage at the 46 minute and 25 second mark, or 9:46 a.m., and speaking for 9 minutes and 46 seconds. Whether we accept Johnson's testimony or the video with respect to the timing of Johnson's appearance on stage, Johnson's rendition of his activities before his speech do not rule out a meeting with Perry beforehand, backstage.
<>Perry testified that following the meeting with Tyson Johnson on the morning of the Unity conference's second day, Perry told Nate Jackson what Johnson had proposed. Perry told Jackson, "Tyson pulled me backstage and told me that I was not going to be a part of the slate. They wanted me to step down and resign my position as International trustee and not run for re-election and they would pay me my salary until the end of the term, appoint me a position that would pay me my same salary until the end of the term."[57] According to Perry, Jackson "was just about as upset as I was as to why would they do that."[58]Jackson corroborated that Perry spoke with him in the "hallway of the Bally Hotel … outside the convention hall itself" on Monday, the second day of the conference.[59] Jackson said he "just ran into" Perry in the Bally's hallway[60] in the crowd of delegates leaving the conference hall. Jackson said that Perry told him "he had had a conversation with Tyson Johnson" and Johnson said that Perry "had to win his local union election and his delegate election" in order to be on the Hoffa slate.[61] Jackson described Perry as "very cool, calm and collected. He didn't seem upset to me. I got upset."[62] Jackson said that when he heard that, "it pissed me off. … I didn't understand why that was a criteria all of a sudden."[63] He said that when Perry told him that the criteria for staying on the Hoffa slate was winning "his local union election and his delegate election … I kind of lost it. 'Why? What? You ain't never had to do that. You've been loyal.'" Jackson continued his testimony, "[Perry] may have shared something else with me. At that time I went blank because it pissed me off. I remember that and that's it."[64] Asked specifically if he recalled Perry saying that Johnson told him that they wanted him to resign his position as International trustee, Jackson testified, "I don't recall that. It's possible. I don't know."[65] However, Jackson testified he recalled Perry saying at some later time that Perry had been told "that if he would resign they would offer him the International rep position and keep him on until his term was up and pay him his normal salary."[66] Jackson testified "I really don't" remember who Perry said made that proposal.[67]
>Jackson testified that the conversation with Perry in the Bally's hallway lasted "two or three minutes."[68] While that conversation was occurring, Jackson saw Tyson Johnson standing nearby. When Jackson and Perry finished speaking, Johnson beckoned Jackson over to him.[69] Jackson described the conversation with Johnson as follows: "he started off by saying the big man[[70]] said that Henry has to win his local union election and the delegate election in order to stay on the ticket. And I said, 'Why? When has that been a criteria?' At that point I'm still pissed. 'When has that been a criteria?' And he said 'well, you know, that's kind of what the big man said.' And I continued to ask: 'why is that a criteria all of a sudden when he's been loyal to you guys. He's supported. He did everything that you guys have asked him to do.'"[71]
Jackson also testified that Johnson spoke to him about Perry "resigning his position as International trustee." Jackson testified: "[Johnson] said that '[Perry] could stay on as an International rep and we would pay him his regular salary until his term was up.' And I'm still pissed, you know. I may have said 'that ain't right either.' I'm not sure, but I may have said that to him."[72]
Tyson Johnson denied speaking with Nate Jackson about Perry, denied telling Jackson that Perry should resign his International trustee position, denied telling Jackson that if Perry did resign he would be continued through what would have been the end of his trustee term so he would not suffer any loss of salary.[73] Johnson further denied that Jackson objected to him about the criteria of winning local union and delegate elections in order to gain a place on the Hoffa slate: "We have had no such conversation."[74] Contradicting Jackson's testimony that the two spoke on Monday in the hallway of Bally's outside the conference hall, Johnson said, "I spoke to Nate, hugged his neck at registration. And I want to say that was Saturday morning. And that's the last I have seen of Nate Jackson in the last couple of years."[75]
B. Perry Discusses Hoffa Slate Membership After the Unity Conference
In addition to Nate Jackson, Perry testified that he told several others,[76] including General Secretary-Treasurer Tom Keegel, about his conversation with Johnson. According to Perry, Keegel said, "Henry, I just want you to know that I was not a part of that bullshit that Jim Hoffa'em come up with basically removing you off the slate. … I've been a supporter of you from day one and I'm still a supporter of yours."[77] Keegel's testimony corroborates the fact of the conversation, but, contrary to Perry's account, Keegel testified he did not know of a proposal not to include Perry on the slate until Perry told him.[78] Keegel testified that Perry called him and asked, "'[D]o you know why I am being taken off the slate, are you aware that I am being taken off the slate?' is the way he put it. I was surprised. I said 'no, I did not.' I had no idea that was happening. I said I would certainly call Mr. Hoffa and talk to him about it, and that was my first knowledge … that … apparently something did happen."[79] Keegel testified that Perry "didn't mention Tyson Johnson to me or the fact that it [a discussion with Johnson about slate status] was at the Unity Conference."[80]After phoning Hoffa, Keegel testified that he called Perry back and "told him that Jim said he's not off the slate."[81]
On May 18, about a week after the Unity conference, Perry called Hoffa, telling him that he was calling about the conversation he had with Tyson Johnson. According to Perry, Hoffa replied, "'I had Tyson to speak with you and I told him to offer you the same deal … you could have the same deal that we offered Frank [Gallegos]. … We will pay your salary, you go ahead and step down and resign. We'll pay you your salary until the end of the term and I appoint somebody in your position and we move on with the slate, move on with the campaign.'"[82] Perry told Hoffa, "I cannot agree to that."[83] According to Perry, Hoffa went on, "'[W]hat you need to do,' he said, 'you need to give me … $2000, get petitions signed, and have fundraisers and support the slate.'"[84] Perry said he replied, "I can't agree to give you my money. [W]hat you're telling me is that you can take my money for a slate that I'm not good enough to be a part of. You're going to ask me at the same time to step down and not run."[85] Perry said that Hoffa then listed the reasons for his decision, including that the Hoffa slate of delegates at Perry's local union had lost the delegates election in 2006 and that the Hoffa slate lost Perry's local union in the general election. Perry replied that Hoffa "played a major part in me losing the delegate election because I couldn't sell the Hoffa name."[86] Perry told Hoffa that he got more votes than Hoffa did in the 2006 general election. Perry: "I got more votes than anybody on the slate. He said, 'no you didn't.' I said 'Based on what the numbers said I got more votes than you, Jim.' He said, 'no you didn't. Those were my votes that you got. You was on my slate, you got my votes.' And I said, 'Well, if I got your votes, Jim, why did I get more of them than you did?' … He said 'The numbers is the numbers.' I said, 'They are.' And I said, 'You need to check them.'"[87] Perry said that he and Hoffa discussed these issues for some time more before Hoffa said, "'You don't have to make a decision now. … We'll talk in a week.' He said, 'I'll call you.'"[88] Perry said Hoffa did not call him again.[89]
Hoffa first took office as IBT General President in 1999. Since then he has been re-elected in 2001 and 2006 and is a candidate for re-election in the current election cycle. He makes the decision as to which candidates for International office will be on his slate.[90]
Hoffa testified that he and Perry had a phone conversation, which could have taken place on May 18 as Perry said.[91] Hoffa said that Perry started out the conversation by saying, "'I hear I'm off the slate.' And I said, 'Well, I heard you were retiring.' And we went through the retirement thing. He said, 'No, I'm not going to retire.' And I said, 'Well, I think there's factors we want to look at with you, there are petitions, support for the slate, financial support, winning your delegates race.' He is up for an election this year, by the way.[[92]] It would be important that he win his local union election. And basically to be a good candidate. And he said, 'Well, if I'm not on the slate, why would I do any of those?' And I said, 'Well, I think we should, I think that's a good way to do that, and I would hope that you would do that, and continue to do what you're doing.' And I said, 'You know, I would appreciate your doing those things because those are the kinds of things I want you' - and those are the same things I had discussed with other potential candidates."[93] Hoffa testified that they discussed the vote tally from the 2006 general election and that Perry said "he had a million votes, which was kind of crazy, that he got a million votes."[94] Hoffa testified that he did not recall whether Tyson Johnson's name was mentioned during the phone call; likewise, he did not recall Perry saying that Johnson had come to him about running.[95] Hoffa also did not recall Frank Gallegos or Gallegos's situation being mentioned during the phone call.[96]
W.C. Smith, Executive Assistant to the General President, testified that he was present when Hoffa spoke by speakerphone with Perry. Smith said he could not recall the date of the phone call but believed it was "after I reported to [Hoffa] that [Perry] was going to be a candidate" for the next GEB election but "before … the Unity conference."[97] Smith said he heard Hoffa give the criteria for Perry to be on the slate: "he needed to win his delegate election. He needed to win his local union election. He needed to get petitions signed in favor of the slate. And he needed to raise money for himself and the slate to campaign."[98] According to Smith, Perry said he "didn't know if he could win his delegate election. He felt that he could win his local union election that he had always won, that he was going to try, he was going to try to sign petitions, and he was going to try to raise money."[99]
Hoffa denied asking Tyson Johnson to talk to Perry about resigning his trustee position;[100] he also denied any knowledge that Johnson had spoken with Perry about resigning so he could be replaced on the GEB.[101] Hoffa further denied knowledge that Johnson had told Perry he would be given an appointed position at equivalent salary to this trustee position.[102] When asked what he would do "if he were aware that someone was making proposals like that, going to a sitting board member and saying, 'look, if you resign your position, we can replace you with someone, it will benefit the slate and we'll give you a job over here," Hoffa testified, "I don't know. I would probably talk to my lawyer. … It would be something that I would report to [the IBT General Counsel], and we would see what we would do about it."[103] Similarly, in reviewing Perry's version of events, Tyson Johnson stated, "It's just unbelievable that, if I had said all of that shit, why he waits until the time he did to say something. If somebody had approached me like that, I'd have been screaming like a cut cat then."[104]
C. May 20, 2010 Hoffa 2011 Slate Conference Call
Perry testified that within a day or two after the phone conversation with Hoffa, he received notice of a conference call for the Hoffa slate.[105] The call took place on May 20.[106] Perry dialed in to the conference call "because after the conversation I had had with the General President about we would talk in a week or something that there may be a possibility that he was going to announce that I was back on the slate. That's why I dialed in to the call. And Christy [Bailey] had called; I think she called and told me to be on the call as well."[107] Perry said that the announcement he anticipated about being on the slate was not made during the call, nor was there any reference to whether he was or would be a member of the slate. Instead, the call was about campaign strategy, and no reference was made to Perry.[108]
D. The May 25, 2010 Hoffa Slate Campaign Fax
When Perry saw the May 25 fax bearing his signature and those of 24 others, he called Bailey and left a message asking her "how did my name appear on the slate as a supporter when I was not a part of the slate and I hadn't signed anything."[109] When Bailey returned the call on May 27 or 28, Perry told her that he noticed "a fax came in and it had my name signed on it as a supporter of the Hoffa slate."[110] Perry said he relayed to Bailey the statement Johnson had made to him at the Unity conference that "I was not part of the slate," that on May 18 Hoffa "had called and confirmed that I was not a part and was not going to be a part" of the slate,[111] and Perry "had not given anybody permission to use my signature and neither had I signed anything."[112] Bailey confirmed that Perry had not signed the letter but said that "everybody was asked to use their signature."[113] Perry replied that he had not been asked. Bailey told Perry that she and Todd Thompson had split up the list of names to contact everyone. Perry told her "nobody asked me anything. I can assure you of that."[114] When the phone call with Bailey ended, Thompson called Perry immediately.
According to Perry, Thompson said "'Mr. Perry, this is Todd.' He said, 'I am so sorry, I apologize for using your signature. It just fell through the crack.' He said 'we didn't call you.'" Thompson then explained to Perry that they used his signature from a document he had signed in the previous election cycle. "That's where he told me that they got it from. I said 'because I know I hadn't signed anything, neither had I given anyone permission to use my signature.'"[115] Perry said that when Thompson apologized, Perry said, "'well, okay,' something like that."[116] Thompson then told Perry that "'this fax is getting ready to go out again. … What do you want me to do?' I said 'I want my name off of it.' I said 'I'm not a part of the slate. I don't want it to look like that I'm supporting the slate that I'm not a part of it.' I said 'I want my name off.'"[117]
E. Slate Membership Discussion at the
June 6, 2010 Joint Council Meeting at Pigeon Forge
This protest was filed on June 4. Notice of the filing was sent to all interested parties, including the Hoffa campaign, the same date. On June 6, Perry attended a meeting of his joint council in Pigeon Forge, Tennessee. Willie Smith, principal officer of the joint council and Executive Assistant to the General President, was also there. According to Perry, Smith "told me that I was on the slate," telling him further that the campaign would help him with fundraising.[118] Perry said "my question to him was 'Willie, if I'm on the slate why Jim Hoffa or somebody hasn't told me that I'm back on the slate?' I say 'this is the first I'm hearing of this that I'm back on the slate.' I say 'now, if I'm back on the slate somebody should have had the courtesy … to let me know that I'm back on the slate.'"[119] Perry said that Smith replied "you're back on the slate," to which Perry responded, "I can't just take your word that I'm back on the slate. Nobody has contacted me and formally said that everything that's been proposed has been undone. I need to have something more concrete than you just saying I'm back on the slate." Perry told Smith further, "'I need to talk to Jim Hoffa.' I said 'he could call me and tell me that I wasn't on the slate, then he needs to call me and tell me that I'm back on the slate and we talk about it.'"[120] Perry said that neither Smith nor Hoffa called or spoke to him after June 6 to discuss being on the Hoffa slate.
Smith agreed with Perry that the two spoke at the Pigeon Forge joint council meeting on June 6. According to Smith, he told Perry "that he was on the slate, 'but you need to win your delegates, you need to sign petitions, you need to win your local union elections, and you need to raise finances. And I offered to help him do that."[121]
Nate Jackson was also present at the joint council meeting in Pigeon Forge and heard the exchange between Perry and Smith. According to Jackson, Smith "told Henry at the joint council meeting he just had talked with the General President Tuesday of that week and he reassured Henry that to his knowledge based on talking to the General President as of Tuesday of that week he was still on the Hoffa slate."[122] Perry replied, "'well, I'm confused because I'm still being told that I'm not on' and Willie kept saying 'Henry, I just talked to the General President just Tuesday and he said you're still on the ticket.' And Willie kept saying to him 'Henry, what else can I do for you? I'm letting you know that the conversation that I had with the General President that you're still on the ticket.' And I think Henry's response was 'I want to hear it from him.'"[123] According to Jackson, Smith did not state any contingency that Perry had to satisfy to be on the slate: "Willie [Smith] didn't indicate anything about 'if you win this or win that.' He didn't indicate that at all."[124]
F. Additional Facts Concerning Trustee Frank Gallegos
Perry said that when Hoffa told him during their May 18 phone call that "you could have the same deal that we offered Frank [Gallegos],"[125] Perry understood Hoffa was referring to a proposal Gallegos had described to him previously. According to Perry, Gallegos told him "they was offering to pay him his salary if he go ahead and resign and they were going to appoint someone in his position to serve the term out."[126] Perry said that Gallegos told him "he was reluctant to do that … without having any type of security. … [H]e was wanting to try to get something in writing that he wouldn't lose his job … that he would get his salary if he stepped down."[127] Gallegos, from Local Union 890 in Salinas, California, told Perry that IBT West region vice president Rome Aloise "had been talking to him about resigning and paying him his salary, appointing him another position and paying him his salary until the end of the term."[128] Perry understood Gallegos' reluctance to give up an elected job for an appointed one: "we're elected by the membership and unless you do something improper your job is there until the end of your term. But if he's just appointed a position you're then at the will of the bosses."[129] Perry testified that, while the slate meeting to which the trustees were not invited was occurring on Saturday, May 8, 2010, he arrived early for the 9 a.m. GEB meeting and spoke with Gallegos. When Perry asked, Gallegos told him he was waiting for that written assurance.[130] According to Perry, Gallegos considered but ultimately did not accept the offer because he was not able "to get something in writing … that he was going to remain on staff until the end of the term."[131]
Gallegos first ran for and was elected International trustee in the 2001 election as part of the Hoffa slate, taking office in 2002.[132] He is not seeking re-election to that position.[133] He testified that he has had discussions with Rome Aloise about whether he would remain in office for the remainder of his term.[134] According to Gallegos, "Rome came to me and asked me would I consider … stepping down … as the International trustee … and take another position."[135] Gallegos said he told Aloise "I would think about it."[136] Gallegos said "that when [the] first discussion [was] made - I wanted to make sure that it was tied down … I insisted that … if there was going to be any agreement to me stepping down, that I want it in writing. … I was not going to do anything just by verbal. … I wanted secure assurances that, you know, I don't lose anything."[137]
Gallegos said he told his fellow trustees, Perry and Buie, "that they had asked if I would step down from my position and take an International position, and I told them that I had no problem with that, that I needed to think about it."[138] Gallegos said he thought Perry and Buie "were kind of shocked" by the proposal.[139] "Some of the conversation" with Perry and Buie "was … 'Why would they ask you that?'"[140] "And I told them … 'I think it is normal for them to - they know I am not running.'"[141]
Gallegos testified that he ultimately decided not to accept the offer to resign his trustee position and take another position. His life "became more complicated,"[142] and he is caring for his elderly mother.
Aloise testified that Gallegos approached him, not the other way around. According to Aloise, at a function prior to the May 2010 Unity conference,[143] Gallegos "had asked me about receiving some assignments from the IBT."[144] Aloise said what he found surprising about Gallegos' request was "just that Frank would ask for something to do. … [Aloise] was not aware of the fact that he was interested in doing something else. He had resigned his position from his local union."[145] Aloise said that Gallegos "announced that he was not running again for the trustee job, I approached him as to whether or not he would want to be an International representative and be assigned assignments, as he had previously mentioned to me."[146] Aloise testified that Gallegos responded that "he would want to know what he would be assigned to, that if he decided that he would step off of the [GEB] to do that, that he wanted something in writing, and … that he would think about it and get back to me."[147] Aloise stated that he subsequently "ran into [Gallegos] in the hallway at the IBT, and he told me he had decided he wasn't interested in resigning his position as trustee or becoming an International rep, more to the point, and that because circumstances had changed and it was too complicated, he didn't elaborate on either of those things. And I told him 'Fine.'"[148]
In contrast to Aloise's assertion that Gallegos approached Aloise about International representative duties, Keegel testified that Aloise (whom he described as "another dear friend"[149]) told him he "was sent to see Gallegos, the way I understand it … [and] if he was going to retire or if he had plans he could maybe finish out his term as an International rep, that was my assumption, and somebody could fill that seat."[150]
G. Political Tensions Among GEB Members at the Start of the 2011 Election Cycle
Keegel testified that signs of a political split on the GEB were present in March 2010, and he "tried very hard to find a way to put it back together again."[151] He continued: "I don't think there was a formal announcement by Mr. Gegare that he was running for General President, but he was making that sound. I worked out a program with General President Hoffa … [in] which we agreed on certain things and that everybody that was on the Executive Board, all the vice-presidents that were on the Executive Board presently … would remain as candidates on the slate. Nobody would be dropped off the slate. Mr. Hoffa agreed to that and I was hoping that that would solve the [problem] because there was certainly some discussions going on between Mr. Hoffa and Mr. Gegare, but that process didn't work."[152] On Hoffa's assurance that "nobody would be dropped from the slate,"[153] Keegel signed a slate declaration with Hoffa and Teamsters Canada president Robert Bouvier on March 31, 2010. According to Keegel, right after the slate declaration was signed, Hoffa announced to the GEB "that decisions about who would be on the slate would be announced" in November.[154]
About five weeks later, when the Hoffa campaign held a slate meeting on May 8 at the Unity conference, Hoffa noted that "[t]here were two people that are on our executive board that did not show up for that meeting. … Fred Gegare and Brad Slawson. And they were invited."[155] With respect to those two, Hoffa concluded "that if you're interested in running, you're going to be there. And by their absence they were like sending a message, I take it, that they weren't going to be with us."[156]
One of the decisions witnesses identified as contributing to the political split on the GEB was Hoffa's decision not to appoint Fred Zuckerman to a vacant vice president's position in the IBT's Central region. Two Central region vice presidents retired from their positions in late 2009 and early 2010, Walt Lytle and Pat Flynn. The Central region has lost membership since the last convention; as a consequence, it will elect one less vice president in 2011 than it did in 2006, according to the formula for determining regional vice presidents laid out in the IBT constitution.
Zuckerman sought appointment to the vacancy that was to be filled. Keegel testified that "Zuckerman would be an excellent choice. Fred has done a marvelous job as director of carhaul, a very troubled industry, hard worker."[157] Keegel expressed his opinion to Hoffa. Hoffa elected to appoint Brian Buhle to the position.
Zuckerman testified that he told Ken Hall, IBT vice president at large and director of the package division[158], that he sought appointment to the vacancy. Hall recommended that Zuckerman put his request in writing to Hoffa, and Zuckerman did so in January 2010.[159] Zuckerman said he saw Hall in February 2010 at grievance meetings in Florida. At that time, Zuckerman said Hall told him that two candidates were being considered for the appointment, Zuckerman and Buhle, but "they were more leaning toward Brian Buhle because I didn't win my delegates election."[160] When the appointment of Buhle was made, Zuckerman said he didn't have any reaction. "I mean, they make their decisions the way they make them. And, you know, I had done everything that I thought I could do to be considered. I worked pretty hard at the job. You know, Buhle's the number two guy in Indianapolis; he's the number three guy on the joint council, doesn't have any director's jobs or anything. So, I … thought my record would speak for itself. They get to make the appointments, and it wasn't me, so I really didn't have a reaction."[161]
A few months later, on May 3, Zuckerman testified that Hall was in Zuckerman's office at Local Union 89 for the Joint Council 94 election. Hall told Zuckerman that "he wanted to have a fundraiser for him and the Hoffa slate here right after the joint council election. And … we had some words about it, and I told him that I didn't support the slate, that I've pretty much made up my mind that I was going to run against him as a result of … not being appointed to one of those positions. Because I think that I have something to offer, and quite frankly, I didn't like the choice that they made in Buhle. So, we had discussed it and he wanted me to support the slate, and I told him that I wouldn't do it. And that's pretty much where we left it."[162]
Zuckerman said that at the end of that week in May he traveled to Las Vegas for the Unity conference.[163] "And when we got out to Las Vegas, there was a lot of commotion about a split and people running against the Hoffa slate. And throughout the whole weekend, people were talking about it, trying to figure out how to not have a division, trying to work some deals. The next conversation I had with Ken [Hall] was over that weekend, which led to a meeting that I had with him on Monday night at one of the little bars inside the casino in the Paris Hotel."[164]
Brad Slawson, Sr., IBT Central region vice president, testified that he made a proposal in March 2010 that he thought could lead to resolving the division on the GEB. Slawson said that he was outspoken on the GEB with respect to "the way the finances were being handled … and how they are handling the Teamsters Affiliated Pension Plan …"[165] He believed that if Zuckerman "thought something had to be said contrary to what Jim [Hoffa] was supporting that he would stand up for it."[166] To resolve the split on the GEB, Slawson proposed that he serve out his term as Central region vice president, not run for re-election to that post, and that Zuckerman be given the position on the Hoffa slate and take Slawson's seat on the GEB if the Hoffa slate won the election.[167] Slawson's proposal was not accepted.[168]
Instead, according to Slawson, Keegel agreed to sign the slate declaration with Hoffa after getting the understanding "that anybody that's on the Executive Board now can stay on the Executive Board if they want."[169] However, immediately after Hoffa, Keegel and Bouvier signed the slate declaration, Hoffa announced that decisions about who would be on the slate would be "tied … to how much money you raised and how many signatures you got (which for me wouldn't have been a problem because I've been fairly successful at both of them, but I didn't want to see folks being kicked off the slate either and that was definitely his intentions) and so it didn't sit well with a lot of people,"[170] Slawson included.[171]
>With respect to Slawson's dissatisfaction with the decision not to include Zuckerman, Hall told Slawson, "'maybe we can put him on as a rep or do some things for him.'"[172] Making Zuckerman an International representative would not resolve Slawson's issues, however, which related to the expression of diverse policy perspectives at the GEB level. "They were trying to appease the people [such as himself] that were speaking forward and they thought [making Zuckerman a rep] would take care of my problem. Well, that wasn't my problem. My problem was having people in the Executive Board that would speak out against some of these things that were taking place, not to make [Zuckerman] a rep. I never once said that. That was them responding to what I had said."[173]
Zuckerman testified that he and Hall had a talk at the Unity conference "about what we could do to resolve the issues and get me back on board" as a political supporter of the Hoffa slate.[174] Zuckerman said he went through why he believed he "had earned a spot on the slate. We went through all that, and he took all that in. And then he called me later and set up the meeting at 11 o'clock on Monday night."[175]
According to Zuckerman, he and Hall met in the crowded bar in the Paris hotel, just the two of them at the table. Hall wanted Zuckerman to support the Hoffa slate, "[a]nd he said that he could do these things if I supported the slate: He could raise my salary to an International rep's level of $67,5[00], and put me in the Family Plan[176], but it would take him three months to accomplish that. I never understood the three months, nor did I ever ask him about it because I wasn't interested in it. I had made up my mind by that time that I was going to run, and I wasn't interested in them raising my salary or doing anything else."[177] In exchange for that offer, Zuckerman said Hall "expected me to support the Hoffa slate and not run against him."[178] Zuckerman testified that "[t]he offer Ken Hall made to me was so I wouldn't run against him and I'd support the Hoffa slate, because at that point in time, I told him I wasn't going to. I was very straight with him. I had made a decision that I was going to run, and he was trying to change that."[179]
Hall testified that Keegel told him at the Unity conference "that there was some interest by Messrs. Gegare and Slawson in having Fred [Zuckerman] become a Central region VP. Now, I understood … at the time … that they wanted him to run for Central region VP in the next election, not be appointed at this time."[180] Hall testified that "to understand the context, there was no secret that there had been some discussion of whether Fred Gegare and Slawson was going to run with us or not, and Tom [Keegel] told me that there may be some resolution of whatever their issues were, and one possible resolution is that they wanted to have Fred Zuckerman run on the slate."[181] Hall stated that Keegel gave him this information as part of their mutual efforts to avert a political split on the GEB.[182]
Hall testified that, shortly before the Unity conference, he spoke with Zuckerman at Zuckerman's local union. Zuckerman "had indicated to me [at that time] that he was unhappy with our administration."[183] Hall said Zuckerman wanted to have lunch to talk about it but Hall didn't have time, so the two agreed "we would talk at the Unity conference."[184] On Saturday night at the Unity conference[185] Hall said that he and Zuckerman spoke by phone and agreed "to go downstairs and have a beer and … have a discussion."[186] Hall testified that Zuckerman raised a number of issues, including that the IBT paid International representatives more than they paid him as carhaul director, that he didn't have enough help in carhaul, and that he believed his local union was under-represented on various IBT committees.[187] Hall said he reminded Zuckerman that IBT finances were under pressure, that he was sympathetic to the issues Zuckerman raised, and that he was willing to try to help him with them.[188] Hall said he summed up with Zuckerman by asking, "'If I'm able to try to help you is that the issue? Is this all the issues that you are upset about?' He said, 'Yeah. That's the issues I'm upset about.'"[189]
Hall denied there was any discussion during his meeting with Zuckerman about "the office of vice president for the Central region, whether that be him filling a vacancy that existed or running for one."[190] Hall said he was surprised the next morning to hear Keegel say that Zuckerman was interested in being a candidate for regional vice president "given that I had just spent two hours with him and he never raised it."[191] However, Hall testified that Zuckerman stated his objection to Brian Buhle's appointment as Central region vice president at the Saturday night meeting.[192] "He considered this a slap in the face to have someone who was not a principal officer of his local appointed over him."[193]
Hall agreed that at an earlier time Zuckerman had expressed interest in being appointed to the vice president position vacated by the retiring Walt Lytle, and Hall said he encouraged Zuckerman to let Hoffa know of his interest.[194] But "[o]nce Brian Buhle was appointed, that ended that."[195]
III. Analysis
The Election Appeals Master's remand order directed us to examine the conversations Henry Perry had with Tyson Johnson and James Hoffa to assess "Perry's credibility in his assertion that he was not a Hoffa Campaign supporter on May 25, 2010." We have done so.
In considering our task, we observe generally that the process of forming a slate of candidates to run for International office is a purely political matter involving an assessment of whether a prospective member will contribute to the slate and enhance the prospect that all members of the slate will be elected. Among the many factors one might expect to be considered in evaluating potential slate members are (in no particular order): prominence and popularity of the individual candidate within his/her home local union, joint council or geographic region; ability of the individual candidate to generate rank-and-file support for his/her candidacy and for the slate; influence and size of the individual candidate's home local union; ability of the individual candidate to raise campaign funds; ability to perform the job sought; experience as a Teamster; experience as a local union or joint council leader; and ability of the individual candidate to produce accreditation petition signatures.
We expect that candidates would carefully consider the decision to form a slate with one or more other candidates, and understand that the decision is a matter of personal judgment. Among incumbent officers, some may hold the view that incumbency is the most important criterion for slate membership, on the theory that the fact a person has achieved his/her particular office already answers all the other questions about suitability of the individual as a candidate for continuing in that office. On the other hand, others may regard the inability of a candidate, incumbent or not, to win a local union election as an indicator that the candidate may lack ballot box appeal and be a drag on the slate. Further, candidates may elect to slate-up with others with whom they disagree on fundamental issues of union governance for the sake of presenting the appearance of a unified and broad coalition and to enhance the slate's electoral prospects.
It is not our place to evaluate or referee political decisions of who is running with whom, nor have we been asked to do so. While the facts gathered in this investigation show disappointment and dismay on the part of some at decisions that were made by others with respect to slate formation (including decisions to decide slate membership at a later point or to condition membership on satisfying specified conditions), it is well outside our role to judge such decisions.
Investigation showed that as of May 2010 Henry Perry expected to run for re-election as International trustee in 2011 and that he would be included on the Hoffa slate. This was also the expectation of Christy Bailey and Todd Thompson, the Hoffa slate campaign managers. However, Perry began to doubt his standing with the slate when he was not invited to the slate meeting held May 8. His doubt ebbed the next day at the Hoffa slate campaign kick-off when Bailey urged him up on stage where the other slate members were assembled.
What started out for Perry as doubt about his inclusion on the slate transformed to certainty that he was not on the slate on Monday morning, May 10. We find that Perry and Tyson Johnson met at Johnson's request backstage in the Unity conference hall at that time, and that Johnson there told Perry he would not be on the Hoffa slate because of doubts about his ability to win his delegates and local union officers election. We find further that Johnson proposed that Perry give up his elected position in favor of an appointed one that would carry the same salary and benefits and terminate at the same time his elected term would have ended.
We credit Perry's version of events for several reasons. First, he gave a consistent account to us and to several other witnesses we interviewed, including Jackson, Gallegos, Buie and Keegel. Those witnesses testified to conversations with Perry that were roughly contemporaneous with the Johnson meeting. More persuasively, Jackson's testimony recounts Johnson's admission to him that Johnson had asked Perry to resign his trustee position and take an appointment for the balance of his term.
Had the Perry-Johnson exchange not occurred the way Perry recounted it, we conclude that the doubt Perry had about his placement on the Hoffa slate by not being invited to the May 8 slate meeting would have been sufficiently dispelled by Bailey telling him to go on stage with other acknowledged slate members at the first public event of the Hoffa campaign held the next day. Especially where Perry was considering that the lack of an invitation to the slate meeting might be nothing personal (other trustees had not been invited either), he showed a willingness to accept Bailey's directive as evidence that he was on the slate, for he assumed that the campaign manager would know who was included and who was not. Without the message Perry received from Johnson, Perry would have had no reason to call Hoffa and say that he heard he was off the slate, a statement Hoffa concedes Perry made. We find that Perry would not have made the call merely because he was not invited to the slate meeting; we further find that his statement to Hoffa that he heard he was off the slate was because that is what Johnson told him.
class=MsoNormal style='text-align:justify'>Johnson submits that Perry should not be credited because he waited to object, instead of "screaming like a cut cat then." We reject Johnson's submission because investigation showed Perry objected immediately. He objected to Johnson as soon as Johnson made the proposal. The objection was strenuous enough that Johnson suggested Perry talk to Hoffa "early next week," which Perry did. While waiting for that time to come, Perry voiced his objection to Jackson, Gallegos, Buie, Keegel, Gegare, Mixon, Christian, Floyd, and Neal. When the "early next week" time came, Perry called Hoffa on Monday, May 17, and had the conversation with Hoffa during the return phone call on Tuesday, May 18. By all accounts (Perry, Hoffa and Smith), the phone call was contentious. With these facts noted, we also say this: in the course of this remand investigation, we have had the opportunity to observe the demeanor and bearing of Perry and Johnson. The two are very different men. Perry is reserved, formal, and calm. Johnson is colorful and colloquial, with broad affect. While Johnson asserts that he would have had a particular reaction if he had been approached the way Perry claims Johnson approached him, we find that Perry's reaction, both in immediacy and message, was appropriate to a person of his bearing who understood that he was being excluded from the slate.
Both Perry and Hoffa agree that the phone conversation they had on May 18 did not resolve the issue. From Perry's perspective, he was off the slate. The only decision that remained was whether he would resign his elected position in favor of an appointment, and Hoffa told him he need not make the decision then but could take some time to consider it (although Perry told both Johnson and Hoffa immediately he would not resign). Hoffa on the other hand had laid out several contingencies Perry had to satisfy in order to be accepted on the slate, the last of which (winning Local Union 667's delegates and alternate delegates election) could not occur until 2011.
We credit Perry's version of the May 18 phone call. His testimony showed greater recall of the details of the call, while both Hoffa and Smith (who was listening in) claimed they could not recall various things, including (importantly) whether Johnson or Gallegos were mentioned during the call. Regardless of whether we credited Perry's or Hoffa's version, the relevant conclusion is the same: at the end of that call, Perry understood that he was not on the slate.
The persons running the campaign, Todd Thompson and Christy Bailey, were unaware of these interactions between Perry and Johnson and Perry and Hoffa. Bailey said she was operating on the assumption that all sitting GEB members who were candidates would be on the Hoffa slate. It was this assumption that prompted her to urge Perry to go on stage at the kick-off event. This same assumption caused her to invite Perry to dial in to the slate conference call on May 20.
Perry dialed in, again thinking that Bailey knew something he didn't, this time that Hoffa had changed his mind and would announce Perry's placement on the slate. Hoffa did not, a second example that the General President had not communicated his decisions about who was on the slate to his campaign staff.
With the May 25 support letter, the campaign staff again was assuming that Perry was part of the slate because no one had told them differently. The letter was an appeal from 24 named International officers and 1 candidate for International office asking Hoffa-Keegel 2011 slate supporters to circulate accreditation petitions for the slate's candidates. That the individuals whose names and signatures appear on the letter endorse and support the slate is the message conveyed and intended by including their names and signatures.
As stated in our original decision, the Rules protect the right of all union members "to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions." Article VII, Section 12(a). Implicit in this guarantee of rights to participate in campaign activities is the right to refrain from such activities. Jackson & Trupiano, 2006 ESD 124 (April 17, 2006), aff'd, 06 EAM 36 (May 11, 2006).
After remand, we adhere to the conclusion we reached in the original decision, viz.
Hoffa-Keegel 2011, Thompson and Bailey violated Henry Perry's right under Article VII, Section 12 to refrain from supporting a candidate and from aiding and campaigning for a candidate by using his signature without authorization on the May 25 letter to express support for the Hoffa-Keegel 2011 slate. Although Thompson had Perry's signature "on file" from the 2006 election, Perry had given his signature and authorized its use only for 2006 election. The campaign, Thompson and Bailey were not permitted to use his signature on the May 25 letter without obtaining his new and express authorization to do so. By using the signature without such authorization, the respondents infringed on Perry's personal right to withhold support from a candidate or slate. Cf. Election Office precedent where a signature has been used without authorization (e.g., Shanahan, P397 (February 6, 1996), where the Election Officer found that the unauthorized signing of another's signature on slate declaration form invalidated the form) with cases where the authorized signing of another's name has been permitted (McNeely, 2001 EAD 254 (March 22, 2001), and Gale, 2006 ESD 125 (March 3, 2006), aff'd, 06 EAM 21 (March 10, 2006)).
The campaign, Thompson and Bailey also violated Perry's rights by obtaining an involuntary campaign contribution from him. The Rules define "campaign contribution" as "any direct or indirect contribution of money or other thing of value where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate for Convention delegate or alternate delegate or International Officer position." Definition 5 (emphasis supplied). Expressly included in this definition of "campaign contribution" is "[a]n endorsement or counter-endorsement by an individual, group of individuals, or entity." Id., subsection f. Just as it is the personal right of Perry or any other member to contribute or refrain from contributing money in support of a candidate or slate, it is the personal right of Perry or any other member to give an endorsement to or withhold it from a candidate or slate. The campaign, Thompson and Bailey publicized Perry's endorsement of the Hoffa-Keegel 2011 slate without obtaining the endorsement from him. Respondents could no more take the endorsement from Perry without his authorization than they could take money from him without his consent.
With respect to Thompson and Bailey, we find that the unauthorized use of Perry's signature was inadvertent. Each campaign operative thought that Perry was on the other's list to call for permission; each assumed the other in fact called Perry and obtained his consent. Each of course was wrong, as Perry was not called.
The more significant inadvertence, however, was the incorrect assumption by both operatives that Perry was on the slate. The campaign, in the person of its lead candidate, had not told Thompson or Bailey that Perry was off the slate. Had that message been passed on, we are confident that Perry's name would not have appeared on the May 25 letter.
The undisputed fact in this case is that Hoffa-Keegel 2011, Thompson and Bailey used Perry's name and signature on the May 25 letter without his authorization. The exchanges Perry had with Johnson and Hoffa explain his motivation for objecting to the use of his name and signature in the letter. His appearance on the stage at the kick-off event and on the May 20 conference call do not change the fact that respondents used Perry's name and his signature (previously provided for another purpose) to convey an endorsement he had not given.
Accordingly, we GRANT the protest with respect to the unauthorized use of Perry's name and signature on the May 25 fax. Because we find that the use was the result of inadvertence by the campaign and its managers and not willful misconduct, we adhere to the remedy we imposed originally, directing the campaign to cease and desist from further use of Perry's name and signature without authorization and ordering the faxing of the notice appended to the original decision to the same list of recipients to whom the May 25 fax was transmitted. We order no further remedy on this violation.
This remand investigation also presented a question for which we can find no precedent under the 2011 Rules or its predecessors. The evidence shows that there were discussions and, indeed, proposals to use union resources to induce individuals to take actions that could influence the election of a candidate in the International officer election, but that there was no actual use or diversion of union resources to that end. In three instances, candidates aligned with the Hoffa slate proposed the use of union resources (in the form of a job or an increase in salary and benefits) to individuals in the context of influencing the election of a candidate. For the reasons that follow, we conclude that these unconsummated proposals do not violate the Rules.
First, we have credited Perry's account that Johnson told him that, if he resigned his position as International trustee, he would be appointed to a position at the same salary and benefits for the balance of the elected term. The rationale Johnson recited was to permit Perry's elected position to be filled by appointment of another person who would then run with the Hoffa slate for election. Had Perry accepted this proposal, he would have gained nothing financially, as his salary and benefits would have remained unchanged through the end of his trustee term. But if that inducement had created a vacancy on the GEB, it would have provided the incumbents (most of whom are candidates for re-election on the Hoffa Slate) with an opportunity to make a strategic choice that could serve their electoral objectives.[196] Perry did not resign from the GEB, and he is currently a candidate for International office on the Gegare Slate. Perry has not suffered any adverse action in his position.
Second, we conclude that Aloise proposed a similar arrangement to International trustee Gallegos. In that circumstance, Gallegos had independently decided against seeking re-election. We credit his testimony that Aloise approached him and proposed that he resign his elected trustee position in exchange for appointment to an International representative job. Keegel provided evidence that Aloise "was sent" to propose that Gallegos "finish out his term as an International rep, … and somebody could fill that seat." As with Perry, Gallegos would not have benefited financially by relinquishing the elected job in favor of the appointed one, but the Hoffa slate could have gained an incumbent candidate for International trustee by the appointment process. Gallegos did not resign from the GEB and he has not suffered any adverse action in his position.
Finally, we conclude that Hall offered Zuckerman an increase in salary to International representative level and enrollment in the IBT employees retirement system in exchange for supporting the Hoffa slate and dropping his candidacy for International office. We credit Zuckerman's testimony that he and Hall discussed what could be done to gain Zuckerman's support for the Hoffa slate. In reaching this conclusion, we find that the meeting between Hall and Zuckerman occurred in the context of Hall's efforts to resolve an apparent political split among members of the GEB, and that Hall made his proposal to avert Zuckerman's nascent opposition candidacy and possibly to persuade Gegare and Slawson to support the Hoffa slate. It was a proposal that aimed to affect an individual's support for candidates in the International election. Had the proposal gone forward, Zuckerman would have benefited financially and the payer of the additional compensation would have been the IBT. Zuckerman rejected the proposal and is currently a candidate for International office on the Gegare slate. He has not suffered any adverse action in his current position.
The Rules prohibit use of union funds to assist in campaigning. Article VII, Section 12(c). They also declare that the union may not "contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate." Article XI, Section 1(b)(3). Violation of these restrictions can be the most serious offense. In the past, actual diversion of union treasury funds to conduct campaign activity has resulted in candidate disqualification. See United States v. IBT, 156 F.3d 354 (2d Cir. 1998) (upholding disqualification of general president candidate who had actual knowledge of diversion of IBT treasury funds to conduct campaign activity).
That said, a union official may resign for personal, strategic or other reasons and such a vacancy, to be filled by appointment, provides policy and strategic opportunities for the appointing authority. The exercise of that authority is entirely legitimate. Indeed, several individuals currently sitting on the GEB hold those positions because elected members resigned mid-term. The decision on appointments to fill those interim vacancies is a policy matter the IBT constitution commits to the GEB.
This comprehensive investigation was not undertaken to examine how the elected members of the GEB perform their legitimate policy function of filling interim vacancies. It was necessitated to determine whether "anything of value" belonging to the IBT had been used improperly to influence the election of candidates. In the matters investigated here, had Perry, Gallegos or Zuckerman accepted the proposals made to them, respectively, by Johnson, Aloise, and Hall, that would have required consideration of whether union funds had been used improperly to influence the election. But the Rules do not prohibit offered or proposed use of union funds. The election rules create procedures for the conduct of the International officer election, and are concerned, inter alia, with violations of those procedures that may affect an electoral outcome. Here, none of the proposals proceeded beyond discussion, no funds were expended, and there is no basis to find a violation of the ban on use of union resources.
Nor do the facts establish a violation of Article VII, Section 12(g), which prohibits retaliation or threat of retaliation, or of coercion. In none of the circumstances presented was the individual subjected to harm or loss of benefit, whether actual or threatened. With respect to Perry and Gallegos, each retained the unfettered ability to reject the proposal and maintain his current position and compensation, as in fact each has done. Zuckerman retained his position as director of carhaul and the compensation that went with it, even after rejecting the proposal.
Union assets cannot be used to support campaign activity and we do not approve of, endorse, or condone schemes that contemplate that possibility. The conduct revealed in this investigation reflects a culture, or mind-set where elected union officials do not clearly distinguish between their fiduciary responsibilities to the union and their separate political objectives of achieving election. This protest began with an investigation of a blast campaign fax to local unions - conduct that showed no recognition that campaigning cannot be conducted through and using the union structure itself. And this is not the only protest in the current cycle arising from the prohibition against campaign use of union resources. See, e.g., Reyes, 2010 ESD 59 (December 22, 2010), aff'd 10 EAM 9 (January 11, 2011) (Rules violated by sending direct mail fundraising solicitation to individuals at union hall addresses); Aloise, 2010 ESD 22 (August 27, 2010) (Rules violated by local union official using union staff and resources to conduct campaign activity); Prisco, 2010 ESD 6 (July 8, 2010) (Rules violated by local union official using union staff and resources to conduct campaign activity); Hoffa-Keegel, 2010 ESD 3, (June 9, 2010) (Rules violated by addressing campaign literature to individuals directly at local union hall addresses). More examples could, unfortunately, be culled from past election cycles. OES can investigate and remedy violations but the IBT's commitment to democratic election principles means more than having an overseer in place. Democracy and trust throughout the union will be strengthened if candidates and officials at all levels, and the rank and file membership, take responsibility on themselves to understand and adhere to the election rules.
The rulings cited in the preceding paragraph all found misconduct that demanded remedial action to level the electoral playing field. Here, there are no improperly solicited or dispensed funds to return, there is no adverse employment action to undo, and there was no use of a resource that could be balanced by an order for equal access. But if proposals like those described in this ruling had advanced to concrete action, serious consequences would quite likely follow for those involved, whether as a remedial matter under the Rules, under disciplinary provisions of the IBT Constitution (including referral to the IRB), or under applicable law. As a matter of enforcing the Rules, the facts found here show that individuals associated with the Hoffa slate approached, but did not cross, a major boundary line, and were saved from serious consequences perhaps only because their proposals were rejected by those to whom they were offered.
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, 1801 K Street, N.W., Suite 421 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
2011 ESD 73
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
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
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
Previant Goldberg
1555 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
P.O. Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Martin Costello
Hughes & Costello
1230 Landmark Towers
345 St. Peter Street
St. Paul, MN 55102
mcostello@hughesandcostello.com
Henry Perry, International Trustee
Teamsters Local Union 667
796 E. Brooks Road
Memphis, TN 38116
hb.perry@teamsters667.com
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
mailto:chrismrak@gmail.com
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey J. Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com
[1] 10 EAM 3, at p. 8.
[2] EAM decision at 7 (original emphasis).
[3] EAM decision at 8.
[4] EAM decision at 9.
[5] Election Supervisor Richard Mark and representative Jeffrey Ellison conducted or participated in all depositions. In addition, representative Christine Mrak participated in the depositions of Frank Gallegos and Rome Aloise.
[6] We note that while the remand investigation has been pending, Perry lost the officer election at his local union. Perry has also signed a slate declaration affiliating himself with the Fred Gegare 2011 Fighting for the Members Slate.
[7] Perry deposition, pp. 9-10. Perry's deposition was conducted July 21, 2010 in Memphis, Tennessee.
[8] Jackson deposition, p. 9. Jackson's deposition was conducted September 2, 2010 in Memphis, Tennessee.
[9] Jackson, pp. 12, 49-50.
[10] Jackson, p. 12.
[11] Jackson, p. 13-14.
[12] Perry, p. 10.
[13] Perry, p. 10.
[14] Perry, p. 11. The Hoffa campaign prepared a 1-page memo on Hoffa campaign letterhead dated May 3, 2010 announcing that "[t]here will be one meeting and one event scheduled at Unity for the Hoffa-Keegel 2011 campaign." The memo said "[o]n Saturday, May 8th at 8:00 am, there will be a Slate meeting in the Directors Room at Bally's North Tower on the casino level." At his deposition, Perry denied ever seeing the memo, receiving any other written notice of the slate meeting, or being told that he was to be present at it. Hoffa testified "we didn't invite [the trustees]. I don't know why. They weren't invited." (Hoffa, p. 18.) Christy Bailey, a campaign manager for Hoffa-Keegel 2011, testified that the announcement about the slate meeting was emailed to "people who were on the current [GEB] board who we believed were running for re-election … who we thought were supporters of the Hoffa-Keegel ticket, and that we wanted to update on the campaign." (Bailey, p. 16). It was "emailed to campaign supporters that we had personal emails for," but not to Perry because "I did not have a personal email address for him." (Bailey, p. 16.) Bailey explained that notice was largely given by "word of mouth. It was very early in the campaign, and somewhat hectic at the Unity conference. We were doing a lot of word of mouth. I don't personally remember seeing Henry Perry or inviting him. But I was not sure if somebody else did." (Bailey, p. 16.) Bailey said "I didn't have a checklist or anything. [Getting notice out] was really just not that systematic." (Bailey, p. 18.) In contrast to Bailey's statement that she did not tell Perry personally or by email about the slate meeting, W.C. Smith testified that he "was told that [Perry] was invited to the slate meeting ... I think [by] Christy Bailey. I think that's who it was." (Smith, p. 35.)
[15] Perry, pp. 12-13.
[16] Perry, p. 16.
[17] Perry, p. 17. At present, the Hoffa-Hall 2011 campaign website identifies Buie as a member of the slate. OES has not received a declaration documenting Buie's slate affiliation.
[18] Perry, p. 28.
[19] Perry, p. 29.
[20] Perry, p. 29.
[21] Perry, p. 30.
[22] Perry, p. 30.
[23] Perry, p. 30.
[24] Perry, pp. 30-31.
[25] Perry, p. 31. Bailey testified that she asked Perry to go up on stage. Bailey, p. 27.
[26] Perry, p. 32.
[27] Bailey, p. 30.
[28] Bailey, p. 30.
[29] Bailey, p. 30.
[30] Perry, p. 37.
[31] Perry, p. 36.
[32] Perry, p. 37.
[33] Perry, p. 39.
[34] Perry, p. 39.
[35] Perry, p. 40.
[36] Perry, p. 41.
[37] Johnson deposition, p. 41. Johnson's deposition was conducted July 22, 2010 in Dallas, Texas.
[38] Perry, pp. 41-43.
[39] Perry, p. 50.
[40] Johnson, p. 58.
[41] Johnson, p. 58-59.
[42] Johnson, p. 60.
[43] Johnson, p. 60.
[44] Johnson, p. 60.
[45] Johnson, p. 59.
[46] A "passing conversation." (Johnson, p. 43.)
[47] Johnson, p. 42. Unity conference agenda provided to us by the IBT show that the Sunday session of the conference commenced at 1:00 p.m. According to video of the event the IBT provided, GEB members were introduced commencing 15 minutes into the program. GEB members assembled backstage in preparation for this introduction starting shortly before 1:00 p.m. Johnson estimated that the exchange with Perry, which he said was "not a long, drawn out conversation" (Johnson, p. 43), occurred "in the range of between 12:30, 12:45 or 12:40 to 12:50. You know, I wasn't watching the clock." (Johnson, p. 42.)
[48] Johnson testified that he heard Perry might retire "from people out of the South. … It's 'telephone, telegraph, tell-a-Teamster.' It's bullshit. It's talk. It goes on. Okay?" (Johnson, p. 19.)
[49] Johnson, pp. 43-45.
[50] Johnson, p. 44.
[51] Johnson, p. 72.
[52] Johnson, p. 72.
[53] Johnson, p. 73.
[54] Johnson, p. 73. Agenda for the Monday session of the Unity conference provided to us by the IBT show that it started at 9:00 a.m.
[55] Johnson, p. 73.
[56] This agenda specifies the time each event is to commence, the speaker, the minutes allotted to the speaker, the subject, and whether the presentation includes video. For example, the agenda for Johnson's speech states that it was to commence at 10:15; the agenda item reads "VoG intros Tyson Johnson/Johnson speaks" ("VoG" is a euphemism for the voiceover announcer, "Voice of God," because the speaker does not appear on stage), 5 minutes was allotted for Johnson's remarks, the topic listed is YRCW/ABF, and there was no related video listed with his address.
[57] Perry, p. 52.
[58] Perry, p. 52.
[59] Jackson, p. 16.
[60] Jackson, p. 16.
[61] Jackson, p. 14.
[62] Jackson, pp. 16-17.
[63] Jackson, p. 14.
[64] Jackson, p. 17.
[65] Jackson, p. 18.
[66] Jackson, p. 19.
[67] Jackson, P. 19. Jackson testified that he related information about Johnson's conversations with Perry to two other IBT members, Antonio Christian and Al Mixon (a GEB member). In each of those conversations, Jackson referenced the Hoffa 2011 slate performance criteria of fundraising and winning officer and delegate elections. (Jackson, p. 41 (Christian); Jackson, p. 43 (Mixon)). Jackson did not recall any discussion with Christian or Mixon of a proposal for Perry's resignation and replacement as International Trustee. (Jackson, pp. 42, 51.) Others Perry told included Greg Floyd (Local Union 237, New York), Jimmy Neal (Local Union 327, Nashville), and Fred Gegare. (Perry, pp. 55-58.)
[68] Jackson, p. 21.
[69] Jackson, p. 21.
[70] Jackson testified that he understood the "big man" to be Hoffa. Jackson, p. 23.
[71] Jackson, p. 22.
[72] Jackson, p. 23.
[73] Johnson, p. 69.
[74] Johnson, p. 69.
[75] Johnson, p. 70.
[76] Gallegos testified that Perry told him "that somebody had came to him and asked him if he was … interested in stepping down." (Gallegos, p. 43). The person who approached Perry was "one of the vice presidents from … Texas." (Gallegos, p. 43). Tyson Johnson is from Texas. Buie testified that Perry told her that Tyson Johnson had approached him and asked him to resign his trustee position; in exchange, "he would get a representative position or something of that sort." (Buie, pp. 19-20).
[77] Perry, p. 65.
[78] Keegel's deposition was conducted September 3, 2010 in St. Paul, Minnesota. By that date, Keegel had withdrawn from the campaign for re-election as General Secretary-Treasurer (or election to any International office) and was no longer a member of the Hoffa Slate.
[79] Keegel, p. 26. Keegel further testified that he called Hoffa, told Hoffa that Perry had called saying he had been told he was off the slate. Keegel said he told Hoffa, "I was wondering what's going on." Hoffa replied that "he had heard that Henry Perry was going to retire and if that was the case he had somebody in mind from a large local, largest local, the IBT from New York, that he would like to have replace him. I said I hadn't heard the fact that Henry was going to retire. … [Hoffa] went on to say that he's not been removed from the slate. I said I am going to call Henry back and talk to him and let him know. [Hoffa] said again that he's not been removed from the slate and that was - this was not a long conversation. It was basically that." (Keegel, pp. 26-27.)
[80] Keegel, p. 43,
[81] Keegel, p. 27. Keegel's deposition was conducted September 3, 2010 in St. Paul, Minnesota.
[82] Perry, pp. 72-73.
[83] Perry, p. 73.
[84] Perry, p. 73.
[85] Perry, p. 74.
[86] Perry, p. 74.
[87] Perry, p. 77. Hoffa tallied 174,963 votes in the 2006 general election, second on the Hoffa slate only to Perry, who polled 176,841. See IBT International Officer Election Announcement of Final Ballot Tabulation Results (November 18, 2006).
[88] Perry, p. 76.
[89] Perry, p. 76. Nate Jackson testified that Perry told him he had spoken by phone with Hoffa, that Hoffa had told Perry that if Perry resigned as trustee "he could continue on as an International rep and he would continue to receive his International trustee salary until his term was up," that they discussed which of them got more votes in the 2006 general election, and that Perry told Hoffa that Hoffa was responsible for Perry losing his local union's delegate election in 2006. (Jackson, pp. 29-32.) Perry told Jackson that at the end of their conversation Hoffa said "he would get back to [Perry]" because he understood "they were still discussing about whether he was going to be on the Hoffa slate." (Jackson, p. 32.)
[90] W.C. Smith, Executive Assistant to Hoffa, testified, "I have been told and observed that the General President makes a decision of who he places on his slate." (Smith, p. 13.) Further, "I'm of the opinion that the General President has the final say if they're going to run on his slate." (Smith, p. 24.)
[91] Hoffa, p. 28. Hoffa testified that he had the call with Perry on the speakerphone in his IBT office (Hoffa, p. 29), and that Smith was present when the call took place. (Hoffa, p. 28).
[92] Following the completion of depositions in this remand investigation, Perry was defeated for re-election as principal officer of Local Union 667 on or about October 15, 2010.
[93] Hoffa, pp. 29-30. Hoffa's deposition was conducted July 29, 2010 in Washington, D.C.
[94] Hoffa, p. 30.
[95] Hoffa, p. 32.
[96] Hoffa, p. 33.
[97] Smith, p. 26. Smith's deposition was conducted July 29, 2010 in Washington, D.C.
[98] Smith, pp. 25-26.
[99] Smith, p. 27.
[100] Hoffa, p. 24.
[101] Hoffa, p. 25.
[102] Hoffa, p. 26.
[103] Hoffa, pp. 41-42.
[104] Johnson, p. 79.
[105] Perry, p. 83.
[106] Perry, p. 85. The call was a so-called "secure" conference call whereby only those persons dialing in who were on the list of approved callers were connected to the phone conference.
[107] Perry, p. 87. Bailey testified that she notified Perry about the conference call to take place on May 20 for the same reason that she had asked him to take the stage at the campaign kick-off on May 10: her "assumption that Henry was on the slate because he was a sitting GEB member who was going to run for re-election." (Bailey, p. 34.)
[108] Perry, p. 88.
[109] Perry, p. 90.
[110] Perry, p. 93.
[111] Perry, p. 93.
[112] Perry, p. 94.
[113] Perry, p. 94.
[114] Perry, p. 94. Bailey's testimony about the phone call with Perry was consistent with Perry's recollection. Bailey said she received his message, returned his call, and heard him say that his understanding was he was not on the slate, to which she replied that she understood he was on the slate. Bailey learned from Perry that he had not been called about the use of his signature on the May 25 fax; she apologized and promised not to do so again. (Bailey, p. 9.) Bailey testified that she thought Perry was on the slate because she understood all sitting GEB members were on the slate. (Bailey, p. 30.) Bailey's deposition was conducted July 29, 2010 in Washington, D.C.
[115] Perry, p. 94.
[116] Perry, p. 95. Perry explained that saying "okay" to Thompson wasn't "saying that it was okay for him to use [the signature] without asking me. … I was saying okay, that you made the mistake." Perry, p. 96.
[117] Perry, p. 95.
[118] Perry, p. 80.
[119] Perry, p. 80.
[120] Perry, p. 81.
[121] Smith, p. 30.
[122] Jackson, p. 34.
[123] Jackson, p. 35.
[124] Jackson, p. 36. Jackson testified that Smith asked him to be present during the conversation with Perry because he knew "that I was Henry's campaign manager in the last election." (Jackson, p. 37.)
[125] Perry, p. 73.
[126] Perry, p. 16.
[127] Perry, pp. 16-17.
[128] Perry, p. 17.
[129] Perry, p. 24.
[130] Perry, p. 17. Buie also testified that Gallegos "was waiting on something in writing," although she was uncertain whether that fact emerged on Saturday, May 8, or at some other time. (Buie, p. 31.)
[131] Perry, p. 23. Perry testified that Gallegos subsequently told him, on June 21, that he still didn't have what he needed in writing to take the offer. The two spoke while at IBT headquarters for a quarterly audit of IBT financial books and records. (Perry, p. 21.)
[132] Gallegos, p. 7. Gallegos' deposition was conducted August 2, 2010 in San Francisco, California.
[133] Gallegos, p. 25.
[134] Gallegos, p. 25.
[135] Gallegos, p. 28.
[136] Gallegos, p. 29.
[137] Gallegos, p. 41.
[138] Gallegos, p. 36.
[139] Gallegos, p. 36.
[140] Gallegos, p. 36.
[141] Gallegos, p. 37.
[142] Gallegos, p. 31.
[143] Aloise testified that "it was maybe at the prior executive board meeting or at some function we may have been together at, but it was prior to us ever being in Las Vegas" for the Unity conference. (Aloise, p. 19)
[144] Aloise, p. 16. Aloise's deposition was conducted August 2, 2010 in San Francisco, California.
[145] Aloise, p. 21. Gallegos testified that he last held office as vice president of Local Union 890 but did not seek re-election when his term expired in 2009. (Gallegos, p. 12.)
[146] Aloise, p. 16.
[147] Aloise, p. 18.
[148] Aloise, p. 28.
[149] Keegel, p. 30.
[150] Keegel, pp. 31-32.
[151] Keegel, pp. 8-9.
[152] Keegel, pp. 9-10.
[153] Keegel, p. 10.
[154] Keegel, pp. 10-11.
[155] Hoffa, p. 17.
[156] Hoffa, p. 19.
[157] Keegel, p. 21.
[158] Following Keegel's decision to withdraw his candidacy for re-election as IBT General Secretary-Treasurer, Hall became a candidate for that post on the Hoffa-Hall 2011 slate.
[159] Zuckerman, pp. 6-7. Zuckerman's deposition was conducted September 3, 2010 in Louisville, Kentucky.
[160] Zuckerman, p. 7. Zuckerman is principal officer of Local Union 89 in Louisville, Kentucky. In 2006, the slate of candidates he led was defeated in his local union's delegates election.
[161] Zuckerman, p. 8.
[162] Zuckerman, pp. 9-10.
[163] Zuckerman, p. 10.
[164] Zuckerman, pp. 10-11.
[165] Slawson, p. 9. Slawson's deposition was conducted on September 3, 2010 in Blaine, Minnesota.
[166] Slawson, p. 15.
[167] Slawson, p 15.
[168] Slawson testified that Hall "told me that he didn't think that they would consider Zuckerman." (Slawson, p. 30.)
[169] Slawson, p. 15.
[170] Slawson, p. 17.
[171] Slawson testified, "I was very concerned about kicking people off the ticket. I just don't believe it's right." (Slawson, p. 27.)
[172] Slawson, p. 30.
[173] Slawson, p. 35.
[174] Zuckerman, p. 11.
[175] Zuckerman, p. 11.
[176] The Family Plan is the IBT retirement plan for full-time officers and employees. Persons working for the IBT on a stipend are not included in the Family Plan. As IBT carhaul director, Zuckerman was and is a stipend employee. and not in the Family Plan. (Zuckerman, p. 13.)
[177] Zuckerman, p. 12.
[178] Zuckerman, p. 12.
[179] Zuckerman, pp. 26-26.
[180] Hall, p. 19. Hall's deposition was conducted September 15, 2010 in Washington, D.C.
[181] Hall, p. 20.
[182] Hall testified: "The context of our meeting was that neither of us wanted to see a split.." (Hall, p. 24.) Hall recalled replying to Keegel with words to the effect of "I hope we are able to get this worked out." (Hall, p. 25.)
[183] Hall, p. 27. Hall's testimony suggests that Zuckerman's statement was volunteered. Responding to Zuckerman's statement that he had expressed his unhappiness with the Hoffa administration only when Hall asked Zuckerman to host a fundraiser for the slate, Hall denied that he "didn't ask him then or ever, that I can recall, about doing a fundraiser." (Hall, p. 47.)
[184] Hall, pp. 27-28.
[185] The Hoffa slate meeting was held Saturday morning; the Unity conference proceedings began Sunday at 1:00 p.m., and the Hoffa campaign kick-off event was late afternoon on Sunday. The conversation Hall said he had with Keegel about putting Zuckerman on the Hoffa slate was Sunday morning, the morning after the late night bar meeting with Zuckerman, according to Hall.
[186] Hall, p. 28.
[187] Hall, pp. 28-29.
[188] Hall, p. 29-32.
[189] Hall, p. 33.
[190] Hall, p. 34.
[191] Hall, p. 34.
[192] Hall, p. 54.
[193] Hall, p. 55.
[194] Hall, pp. 40-41.
[195] Hall, p. 61.
[196] Hoffa testified that Greg Floyd was offered a trustee position on the Hoffa slate. Floyd is principal officer of Local Union 237 in New York City, the IBT's largest local union. (Hoffa, p. 47.) The Hoffa campaign slate declaration submitted to OES does not list any candidates for International trustee. The Hoffa campaign website lists three candidates for trustee; Floyd is not one.