Protest Decisions

IN RE: FRED GEGARE (After Second Remand), Protestor.
Protest Decision 2011 ESD 165
Issued: March 14, 2011
OES Case No. P-004-060410-NA

I.             Introduction

      A.          Prior Proceedings

We assume full familiarity with the prior proceedings in this protest based on the published rulings. See, Gegare, 2010 ESD 4 (June 24, 2010), remanded 10 EAM 3 at 9 (July 8, 2010) (directing "a comprehensive investigation of the matters alleged by Henry Perry relating to his conversations with Messrs. Johnson and Hoffa"), 10 EAM 3 (July 13, 2010) (supplemental order stating that the July 8 remand order "makes it unmistakably clear" that the remand required "a broad review of the findings of fact," and not just consideration of remedy); 2010 ESD 73 (January 20, 2011) (decision on remand), aff'd in part and rev'd in part, 10 EAM 3 (February 16, 2011) (partially reversed as to remedy only and remanded to fashion a remedy). Nevertheless, we briefly summarize those proceedings as background to this remedial order.

Fred Gegare lodged this protest on June 3, 2010. The Election Supervisor's initial ruling concluded that the Hoffa campaign had violated the Rules by using the facsimile signature of Henry Perry (an elected IBT Trustee) without authorization to convey Perry's support or endorsement of Hoffa. Gegare, 2010 ESD 4 at 6-7 (June 24, 2010). On appeal from that ruling, the Election Appeals Master held the initial decision was deficient because: 1) it lacked sufficient factual findings on the issue of Perry's actual allegiance at the time of the unauthorized use of the signature; and 2) the matter of offering Perry a job and benefits with the IBT in exchange for his resignation from the elected trustee position and a commitment of political support for the Hoffa slate required further "comprehensive investigation." Gegare, 10 EAM 3 at 7-9 (July 16, 2010). The Election Appeals Master remanded the protest for the Election Supervisor to address those matters. Id. at 9.

The Election Supervisor conducted additional investigation and issued a second ruling. Gegare (After Remand), 2010 ESD 73 (January 20, 2011). The Election Supervisor adhered to the initial findings regarding the unauthorized use of Perry's signature, and made additional findings that Perry did not support Hoffa at the time the unauthorized use occurred. Id. at 26. That matter had been remedied previously, and no additional remedy was ordered. Id. The Election Supervisor also found that Perry and two other individuals were offered jobs and benefits with the IBT on the condition of supporting the Hoffa slate, but that the overtures were spurned or did not otherwise come to fruition. Id. at 26-27. Faced with a protest issue not covered by a specific rule and otherwise without precedent under the twenty-plus year history of protests under the Rules, the Election Supervisor imposed no remedy for the conduct found. Id. at 26, 28. While the Rules and federal labor law unequivocally condemn the use of union resources in campaign activity, no rule explicitly bars the conduct found here and the Election Supervisor identified no completed activity involving the use of union resources and affecting the election process (e.g., an improper actual expenditure of union funds to support a campaign, an adverse employment action taken to retaliate for election activity) to address or undo. Id. at 27-28. The Election Supervisor acknowledged the right of candidates to form alliances with whomever they choose and the legitimate authority of union officials to appoint persons in light of the policy or strategic objective the official desires to attain for the IBT. Id. The Election Supervisor strongly cautioned, however, that bestowing union positions or benefits in consideration of political support in the International Officer election could, under specific circumstances, violate the Rules. Id. at 28.

      B.           The Election Appeals Master's February 16, 2011 Ruling

On appeal from the Election Supervisor's ruling after remand, the Election Appeals Master affirmed the Election Supervisor's "well-supported" findings of fact, and affirmed the conclusion that the original remedy imposed in connection with the unauthorized use of Perry's signature was adequate to address that violation. Gegare, 10 EAM 3 at 10, 11 (February 16, 2011). The Election Appeals Master reversed the decision not to impose a remedy relating to the job and benefit proposals and remanded the matter "so that the [the Election Supervisor] may fashion a remedy for the violations detailed in the January 2011 decision and this opinion." Id. at 18. The Election Appeals Master noted - twice - that the protest situation presented here was a matter of "first impression." Id. at 1, 2. The Election Appeals Master held that, although the Rules do not explicitly prohibit the conduct found, the Election Supervisor has broad authority and substantial discretion to take other action as necessary to ensure that the International Officer elections are free and fair. Id. at 11-16. Sources of this broad authority include general provisions of the Rules themselves, the March 14, 1989 Consent Decree, and judicial decisions interpreting the scope of election supervision under the Consent Decree. Id. at 12-15. On that foundation, the Election Appeals Master held that the offer of a position and benefits by one with the authority to dispense them is a "thing of value" and that "the proposed exchange of jobs for campaign benefits clearly calls into question the integrity of the election process." Id. at 13-14.

the Election Appeals Master concluded that:

an elected official may offer a job in exchange for an agreement to carry out the official's policies. Under the Rules and the Consent Decree, elected officials may not offer a job in exchange for partisan political activity, or any action designed to create an electoral advantage for the incumbent appointing officer and his campaign slate of candidates for union office.

Id. at 16. The Election Appeals Master remanded the protest for the Election Supervisor to fashion a remedy consistent with that conclusion and in light of the specific facts found.

      C.           Party Submissions

Upon remand, the Election Supervisor invited interested parties to submit their positions, in writing, on the remedy to be imposed. Parties had the option to exchange their submissions, or to offer them for the Election Supervisor's ex parte consideration. All submissions were received by March 1, 2011. The interested parties did not exchange submissions, as was their prerogative. Accordingly, the Election Supervisor has read and considered each of the submissions and thanks the parties for their thoughtful input. Because the party submissions were made ex parte, however, specifics of the submissions will not be discussed.

II.          Analysis

The Election Supervisor's January 24, 2011 decision on remand noted that "[h]ere, 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." Gegare (After Remand), 2011 ESD 73 at 28. That has not changed. The Election Appeals Master's ruling directs a further remedy, however, based on the conclusion that the conduct found - a job offer alone, formulated with the objective to influence the election - is a thing of value and exemplifies "exactly the type of misconduct that the Election Supervisor was charged with remedying." Gegare, 10 EAM 3 at 14 (February 16, 2011). The Election Appeals Master's ruling instructs that the further remedy: 1) must be tailored "to cure the harm caused by the misconduct;" and 2) "must be prospective and designed to ensure a level playing field for insurgents and incumbents" and cannot be disciplinary or punitive in nature. Id. at 16-17.

An appropriate remedy must therefore address the misuse of this union resource (an offer of a job and benefits) as related to the integrity and fairness of the election process. The remedy must do that while avoiding interference with the legitimate prerogatives of elected officers and authorized, appointed officials to implement policies and carry out their jobs. That this is a question of first impression - a circumstance twice noted by the EAM - also informs the remedy.

OES and its predecessors have faced scores of protests arising under the Rules' ban on the use of union resources to conduct partisan campaign activity. Where the evidence establishes a violation, a cease and desist order will be directed to the parties involved.[1] Where the violation results in a financial benefit to the campaign, remedies have required a return of funds or compensation for the resource used.[2] Where the violation resulted in a non-financial benefit to the campaign, remedies imposed have denied the campaign the fruit of the violation.[3] Remedial notices and disgorgement of benefits have been targeted to the persons affected (where they may be identified).[4] A remedy broader than the violation established by the evidence will not be sustained.[5]

Considering all of these factors, we will direct a cease and desist order to the Hoffa Campaign, as set forth below. The harm in this case concerns elected IBT officials who, in three identified instances, did not attend to the rule against use of union resources to aid a campaign and sought - albeit without success - to gain political support in exchange for the offered jobs and benefits. A cease and desist order addresses that harm because it clarifies the boundary of prohibited conduct, guides future compliance of those involved in the violation, and provides notice of the rule to others.[6] We note that, since the Election Supervisor's June 24, 2010 ruling, no other protests have been filed regarding other conduct of this type at the IBT level.

Because the interpretation of the Rules applied in this protest is a matter of first impression, notice of the cease and desist order will be disseminated broadly throughout the IBT. While such dissemination is far broader than the individuals involved in the Rules violation, this sort of conduct could occur at subordinate bodies and responsible officers and officials at all levels of the IBT should therefore be aware of the rule articulated in the Election Appeals Master's Gegare rulings and applied here. Providing broad notice protects the election process by alerting all within the IBT to this rule, now clearly established. The consequences for violation may, in the future, result in greater remedial action.

No other remedies will be ordered. In the absence of a financial benefit to the Hoffa campaign, there is no disgorgement to order. Although the remedy is being finalized in March 2011, the conduct involved occurred before June 2010, and the facts relating to the Perry offer have been a matter of public record since the June 24, 2010 decision. The conduct occurred long before the first elections for IBT convention delegate and, of course, International officer candidate nominations have yet to occur. The IBT rank-and-file have the facts at their disposal to consider and weigh as they make their electoral choices.

III.       Remedy

1. The Hoffa campaign and each candidate on the Hoffa-Hall slate are ordered to cease and desist from using union resources to conduct campaign activity. Specifically, this direction is to cease and desist from offering any job or benefit where the offeror has the authority at the time to consummate the offer and the offer is made solely in exchange for partisan political activity or is designed solely to create electoral advantage for the incumbent appointing officer and his or her campaign or slate of candidates for union office.

2. The attached remedial notice will be distributed by the Office of the Election Supervisor to all local union offices via first-class mail on Monday, March 21, 2011. The Hoffa campaign shall reimburse OES's cost for copying and mailing the notice. Each local union shall make copies of the notice available on its campaign literature table through the conclusion of the International officer election.

3. The remedial notice will be published in the April 2011 issue of Teamster magazine.

4. The remedial notice as published in the April 2011 issue of Teamster will be available at www.teamster.org under the 2011 Election Campaign link, such posting to be maintained through the conclusion of the International officer election. The web-available version will include active links to the decisions of the Election Supervisor and the Election Appeals Master in this protest.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Supervisor in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864

Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 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 165

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

David J. Hoffa
Hoffa Hall 2011
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
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.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
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
perry1409@bellsouth.net

Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com

Maria S. Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com