OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: CARL PECORARO, ) Protest Decision 2015 ESD 33
) Issued: September 25, 2015
Protestor. ) OES Case No. P-039-082815-ME
____________________________________)
Carl Pecoraro, member and president of Local Union 507, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that Al Mixon, member and principal officer of the local union, IBT vice president at large, and candidate for IBT General President, violated the Rules by compelling members of Local Union 507’s executive board to contribute to an account to be used to support Mixon’s campaign for International office.
Election Supervisor representative Dan Walsh investigated this protest.
Findings of Fact
Al Mixon was appointed to the IBT General Executive Board in 2009 and then elected IBT vice president at large on the Hoffa-Hall slate in 2011. In August 2015, Mixon declared his candidacy for IBT General President; at present he is not a member of a slate.
Protestor Pecoraro alleged that Mixon in 2012 “devised a plan to convince other Local 507 Executive Board members to use their out of town per diem payments for travel for campaign contributions intended for Mixon’s campaign for International office.” The protest alleged that at Mixon’s “strong” suggestion, two local union executive board members established a bank account in their own names, which they were to fund with payments they received from the local union. The protest claimed that the contributions were a quid pro quo for benefits the contributors received from the local union, and that the contributions thus were an impermissible “pass-through of Union funds to a candidate for union office.”
Pecoraro had no personal knowledge of the account, its origin or use. Investigation showed Safeyyah Edwards and Edwin Reyes established a savings account at Fifth Third Bank on September 18, 2012 with a deposit of $100. Edwards and Reyes are officers of Local Union 507. Edwards was elected to a trustee position and then appointed to fill a vacancy as vice president; Reyes was appointed and then elected as trustee. Both work full-time for employers under the jurisdiction of the local union and perform their union functions on a lost-time basis.
Mixon told our investigator that in 2012 he asked Edwards and Reyes to support him in the next election and that, if they were amenable to it, they could contribute up to $2,000 each to do so. He approached them because he sensed they supported his leadership and felt comfortable asking them to prepare to support his future candidacy. He stated that he told them that they could set up a bank account to assist themselves in setting the money aside and then contribute it to his campaign when the time came. He did not promise them any benefit for their support, either personally or from the union, and he has given them none. Both are unsalaried officers of the union, so Mixon has no control over their compensation in any event.
Edwards agreed that Mixon suggested she and Reyes set up a bank account to be used to make campaign contributions to an eventual Mixon campaign. She said Mixon explained how the election process worked and that contributions are necessary to mount a successful campaign. She said she thought it was a good idea to support Mixon and agreed to set up the account with Reyes in order to set money aside that could be contributed to his campaign. Edwards stated that she did not get anything from Mixon or the union for setting up and making deposits to the account, nor did he make any promises to her. She made deposits when she had funds available and not through any sort of payroll deduction from the local union, stating that as a non-salaried officer she had no union salary from which deductions could be made. She set up the account and made deposits from her personal funds because Mixon asked her to do so and she wanted to support him.
Reyes told our investigator that Mixon asked him and Edwards to set up the account in order to set aside their personal funds to be used for campaigning. He said that Mixon did not promise him anything, and he got no benefit from the union for doing so. He agreed to do it because the campaign would need money and he wanted to help Mixon out. Like Edwards, Reyes had no salary from the union and received no compensation from which payroll deduction could be made. He deposited personal funds to the account himself either through an ATM at the bank branch or through fund transfers he initiated between his bank account and the joint account with Edwards..
The name on the account is “Safeyyah Edwards or Edwin Reyes” and lists Edwards’ home address as the location to which statements are to be mailed. The only deposits to the account were made by Edwards and Reyes. After the initial deposit that opened the account, the remaining deposits were: in 2012, 1 deposit of $240; in 2013, 5 deposits totaling $2,025; in 2014, 6 deposits totaling $1,780; and in 2015, 1 deposit of $140. The largest single deposit was $500; the smallest, $100. These deposits with addition of interest and deduction of bank service charges grew the account to a maximum of $4,282.46 in 2015. Of the 14 deposits made, Edwards is certain she made 7, totaling $2,060, for which she produced deposit receipts. Reyes was uncertain as to how much he deposited in the account but believed it to be between $1,200 and $1,500. Edward told our investigator that only she and Reyes made deposits to the account. Reyes said he did not know if anyone other than he and Edwards made deposits.
Mixon did not have control of or withdrawal authority on the account. Instead, that authority resided exclusively with Edwards and Reyes.
The first withdrawal from the account occurred on July 7, 2015, when Edwards withdrew $1,750. According to Edwards and Mixon, Edwards made this withdrawal when Mixon asked her for financial help to pay his lawyer for services defending him in an internal union investigation. Edwards stated that she purchased two postal money orders totaling $1,500 that she made payable to Gary Levine, who she was told was Mixon’s attorney. Levine confirmed receipt of these money orders. Edwards produced copies of the two money orders. Of the remaining $250 included in the withdrawal, Edwards stated that she gave $200 to Mixon and kept $50 for herself.
Investigation showed that Edwards told Reyes that she withdrew the funds to pay for a website for Mixon’s candidacy. She admitted to our investigator that she made that statement to Reyes but said the statement was untrue. She stated that she sought to shield from Reyes that she was assisting Mixon with the legal matter presented by the internal union investigation. Mixon indeed has established a campaign website, but he presented evidence that this was done in August 2015, well after Edwards delivered the funds to Mixon’s lawyer, and that Mixon paid for the website from his personal funds.
The only other withdrawal made from the account was by Reyes. This withdrawal, in the amount of $1,000, was made August 28, 2015, the same day Pecoraro filed this protest. Reyes told our investigator that, with the internal investigation pending against Mixon, he grew uncertain whether the account was permissible or appropriate, so he went to Pecoraro to explain how the account came to be and the deposits he had made to it. Pecoraro filed the protest, and Reyes made the withdrawal. Reyes chose $1,000 as the withdrawal amount, confident that he had deposited more than that but uncertain how much more, and he wished not to withdraw more than he had deposited.
Neither Edwards nor Reyes receive a salary from the local union. Both are compensated for their union duties on a lost-time basis. There has been no change or increase in their compensation from the local union in connection with the establishment or maintenance of the account.
Analysis
Article XI of the Rules governs contributions to candidates for union office. Generally, members are permitted to contribute to candidates, subject to a maximum contribution limit. However, unions are not permitted to contribute money or “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, Setion 1(b)(3). We have held that pooled accounts of union employees established and administered under the auspices of a local union, funded in part through additional compensation from the union to those employees, and controlled by a candidate violate the Rules as impermissible use of union resources to support a candidate. Certain Campaign Contributions by Officers and Employees of Local Union 853, 2006 ESD 341 (August 23, 2006).
The account at issue here does not violate the Rules. First, although it was established with the encouragement of Mixon, an individual who previously and would in the future be a candidate, the account was established by individual members who were not candidates and was administered by them as private individuals. The local union had no role in the account, whether through use of its name or address as the account holder, use of payroll deduction or other function in making deposits to the account, or even in serving as the repository of periodic statements of account status and activity that the bank issued for it.
Second and of great importance, there is no connection between deposits the individual account holders made to the account and the compensation they received from the local union. As such, there is no evidence whatsoever that the account was funded as a pass-through from the local union.
Third, there is no evidence of coercion in the establishment of or deposits made to the account. The irregularity of the deposits is evidence of this point. More compelling is that the depositors had free rein to make withdrawals – and did so – to be used for any purpose either saw fit.
Finally, the account was not under the control of a candidate and therefore did not constitute a contribution to the candidate. Instead, it owned by and under the control of the individuals who had established it.
For these reasons, we find no violation of the Rules and DENY 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:
Kathleen A. Roberts
Election Appeals Master
JAMS
620 Eighth Avenue, 34th floor
New York, NY 10018
kroberts@jamsadr.com
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, 1050 17th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kathleen A. Roberts
2015 ESD 33
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
braymond@teamster.org
David J. Hoffa
1701 K Street NW, Ste 350
Washington DC 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
Teamsters United
315 Flatbush Avenue, #501
Brooklyn, NY 11217
info@teamstersunited.org
Louie Nikolaidis
350 West 31st Street, Suite 40
New York, NY 10001
lnikolaidis@lcnlaw.com
Julian Gonzalez
350 West 31st Street, Suite 40
New York, NY 10001
jgonzalez@lcnlaw.com
David O’Brien Suetholz
515 Park Avenue
Louisville, KY 45202
dave@unionsidelawyers.com
Fred Zuckerman
P.O. Box 9493
Louisville, KY 40209
fredzuckerman@aol.com
Teamsters Local Union 507
5425 Warner Road, Unit 7
Cleveland, OH 44125
office@teamsterslocal507.com
Carl Pecoraro
5425 Warner Road, Unit 7
Cleveland, OH 44125
carlpecoraro@teamsterslocal507.com
Al Mixon
4621 E. 177th Street
Cleveland, OH 44128
amixon2016@gmail.com
Saffeyah Edwards
5425 Warner Road, Unit 7
Cleveland, OH 44125
esaffeyah@yahoo.com
Edwin Reyes
4705 Morningside Drive
Cleveland, OH 44109
ereyito@gmail.com
Dan Walsh
950 Duxbury Court,
Cincinnati, OH 45255
djw4947@gmail.com
John Pegula
1434 Greendale Dr.
Pittsburgh, PA 15239
jpegula@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Suite 210
Ann Arbor, MI 48104
EllisonEsq@aol.com