Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: HOFFA-HALL 2016,                      )           Protest Decision 2016 ESD 67

                                                                        )           Issued: January 15, 2016

            Protestor.                                           )           OES Case No. P-083-010916-NA     

____________________________________)

            Hoffa-Hall 2016 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 Teamsters United has forfeited accreditation status by amending its slate.

            Election Supervisor representative Jeffrey Ellison investigated this protest.

Findings of Fact and Analysis

            The protest, filed January 9, 2016, stated the following:

On behalf of the Hoffa-Hall 2016 Campaign (“Hoffa Campaign”), we protest the accreditation of the Teamsters United Slate (“TU”), request that their Certification of Candidate Accreditation be nullified and contend that any benefits of accreditation should be withdrawn as to TU and its component candidates.

The circumstance precipitating this protest was TU’s announcement, on or about January 9, that candidates seeking particular International offices on its slate were now seeking different offices than the ones for which they initially declared. 

            This protest raises three questions: 

First, may a slate of candidates for International office permissibly amend its slate declaration to change the offices that particular candidates seek?  We answer this question by holding that the slate members may do so, provided there is mutual consent of all slate members for the amendment and they otherwise comply with the Rules.

Second, what impact does a change in offices sought have, if any, on the rights of a candidate who is accredited for a particular office and then becomes a candidate for an office for which he/she is not accredited?  We answer this question by holding that a candidate accredited for one office who changes the office sought to one for which he/she is not accredited ceases to be an accredited candidate under the Rules and may not personally receive or exercise any of the benefits and privileges the Rules grant to accredited candidates.

Finally, where the process by which candidates on a slate achieved the status of accredited candidates was by circulation and submission of slate accreditation petitions, does a change in offices sought by some but not all of the slate members have any impact on the rights of accredited candidates on the same slate who continue to be candidates for the offices for which they were accredited?  We answer this question by holding that a candidate who achieved accreditation for a particular office through slate accreditation petitions maintains the status of an accredited candidate, with the benefits and privileges the Rules grant to an accredited candidate, provided he/she continues to be a candidate for the office for which he/she achieved accreditation, even if other members of the slate who similarly achieved accreditation through slate accreditation petitions have lost that status by changing the offices they seek.

The facts giving rise to this protest may be briefly stated.

            On August 18, 2015, Teamsters United filed a slate declaration form listing the following candidates and the International offices they were seeking:

            On September 22, 2015, we held Jakwan Rivers ineligible for office.  Eligibility of Rivers, 2015 ESD 32 (September 22, 2015).

            On or about January 9, 2016, TU reported on its website that Fred Zuckerman had “announced his candidacy for Teamster General President” and that Tim Sylvester “will be running as the Teamsters United candidate for General Secretary-Treasurer.”[1] 

            On January 14, 2016, an amended Teamsters United slate declaration form was filed with OES reflecting the following candidates and offices they seek:

The amended declaration differs from the original in three ways.  First, Rivers’s name does not appear on the amended form, his candidacy having ended irrevocably when he was declared ineligible for office.  The remaining ten candidates listed on the amendment are the same as those appearing on the original declaration.  Second, Tim Sylvester, the candidate for General President on the original declaration, is the slate’s candidate for General Secretary Treasurer on the amendment.  Third, the name of Fred Zuckerman, candidate for vice president at large on the original declaration, appears as the candidate for General President on the amended declaration.  The other eight candidates are listed as candidates for the same positions as shown on the August 18 Teamsters United slate declaration. 

            Article VIII of the Rules governs slate formation, amendment, and expansion.  Section 1(a) of that article grants each candidate “the right in conformity with this Article to seek nomination, be nominated, campaign and appear on the ballot for any … International Officer position as a member of a slate of candidates, regardless of whether the slate is full or partial.” 

            Candidates who join together as a slate enjoy certain procedural advantages under the Rules over unaffiliated or independent candidates.  For example, with respect to balloting, slates are listed on the ballot ahead of independent candidates, and a voter may vote for all candidates on a slate by marking the oval next to the slate name rather than marking the ovals next to each candidate’s name.  Further, slates can pursue accreditation status for individual candidates using slate accreditation petitions, where a member’s signature on a petition counts as a signature for all candidates listed on the petition.

The Rules define a “slate” as “any grouping by mutual consent of two or more candidates.”  Definition 42.  Section 1(b) of Article VIII echoes this definition by declaring that “[t]o form a slate, there shall be mutual consent between and among all candidates running on the slate.  Such mutual consent shall be evidenced by the signing of a declaration by all members of the slate, giving the position that each candidate seeks and the name, if any, of the slate to be formed.”  Section 2(a) states that, “[o]nce a candidate declares his/her intent to run as a member of a slate, he/she may not retract such declaration.”

We provide our Form 10 – Declarations of Affiliation With a Slate that candidates are required to use to indicate the formation of a slate under the Rules.  The declaration each candidate makes by signing the form includes the following:

I, the undersigned, hereby affiliate with the slate of candidates listed below.  I declare that I am a candidate for the position listed next to my name.  I further declare that I have agreed to form a slate with the candidates listed, and that they have agreed to form a slate with me.

            Our Advisory on Applying the Slate Rule to Candidates for International Office (June 20, 2006) elaborated on the Rules article on slates at the time of the 2006 IBT convention.  Its principles are fully applicable to the current election.  The second section of the advisory provides the following guidance:

II.        A Slate Declaration May Be Amended Only with

the Mutual Consent of All Slate Members

The requirement of mutual consent among slate members in order to amend a slate encompasses individual candidates on the slate as well as each candidate’s designated office (both of which are required elements of a slate declaration).  See Rules, Article VIII, §1(b).  Further, as long as there is mutual consent among all members of an existing slate:

(a)    additional candidates may be added to the slate, so long as the total number of slate members listed for an office does not exceed the total number of positions open for election.  Rules, Article VIII, §2(b); and

(b)   slate members may change the International office to which they seek election.

Amendments to the slate cannot occur unless all slate members consent.  Rules, Article VIII, §1(b).  Without mutual consent to the amendment, the existing slate remains unchanged and a new slate cannot be formed.  To amend a slate, all slate members must complete, sign, and submit an amended slate declaration form. 

            Applying these principles to the facts presented, the members of the Teamsters United slate had the right under the Rules to amend their slate declaration to alter the elected positions that two of their number sought, provided that the proof of their amendment demonstrated mutual consent of all slate members.  The amended slate declaration carries the signatures and International Union offices sought by all of the original slate members who remain candidates,[2] and mutual consent to the change is therefore established.

            We turn now to the first accreditation issue the protest raised.  Preconvention accreditation of candidates is a means by which candidates for International office can demonstrate support among the membership for their candidacies and thereby gain certain privileges and benefits the Rules bestow.  The Rules define “accredited candidate” as “any candidate for International office who has obtained the signatures on petitions of at least two and one-half percent (2.5%) of the relevant membership pool, pursuant to Article X of these Rules.”  Article X grants each accredited candidate “access to membership lists pursuant to Article VII, Sections 2 and 3 of the Rules and have his/her campaign literature published in the IBT Magazines pursuant to Article VII, Section 10 of the Rules.”

            The accreditation rights and benefits the Rules grant are to individual candidates who surpass the petition signature threshold.  Thus, Article X, Section 1 states that “[e]ach candidate seeking to become an accredited candidate” must obtain a specified number of petition signatures (emphasis added).  Further, Section 4(b) states that “[i]f the Election Supervisor finds a candidate has submitted the requisite number of valid signatures on valid petitions, the Election Supervisor shall certify the candidate as an accredited candidate”  (emphasis added).  The Rules require all accreditation petitions circulated to identify the candidate by name, local union number, and title of office sought.  Article X, Section 2(a)(1). 

The Rules provide that slates of candidates “may circulate a single petition for some or all of the members of the slate.”  Article X, Section 2(b).  To do so, the slate must be validly formed under Article VIII, and no slate petition shall include regional vice president candidates from more than one region.  Id. 

OES has developed two petition forms candidates and slates may use to gather signatures in support of accreditation.  Our Form 5 may be used by individual candidates seeking accreditation.  The instructions at the top of the form state in part that “[t]his is a petition to have the person listed below declared to be an ‘Accredited Candidate’ for the IBT International Union Office listed below.”  Our Form 16 may be used by candidates on the same slate who together seek accreditation.  The instructions on this form state in part that it is “a petition to have each person listed on the slate below declared to be an ‘Accredited Candidate’ for the IBT International Union Office listed next to their name.” 

Although Article X, Section 2(b) as well as Form 16 permit a validly formed slate of candidates to petition for accreditation together, the Rules grant accreditation only to individual candidates and not to slates.  Teamsters United submitted slate accreditation petitions in support of the candidates on its original slate on August 27, 2015.  Tim Sylvester was listed on Teamsters United’s original slate declaration and the slate accreditation petitions as a candidate for IBT General President.  Teamsters United requested that he be certified as an accredited candidate for that position.  Similarly, Fred Zuckerman was listed on Teamsters United’s original slate declaration and the slate accreditation petitions as a candidate for IBT vice president at large.  Teamsters United requested that he be certified as an accredited candidate for that position.  After review and testing of the petitions submitted in support of these requests, the Election Supervisor granted the requests and certified Sylvester as an accredited candidate for IBT General President and Zuckerman as an accredited candidate for IBT vice president at large.

Members signing accreditation petitions for an individual candidate indicate with their signatures their support for the identified individual as a candidate for the particular International Union office listed on the petition.  Similarly, on accreditation petitions circulated on behalf of a slate of candidates, signers indicate their support for each identified individual as a candidate for the International Union office listed opposite his/her name.  The Rules and the petition forms require that each candidate identify the office sought, and the certification of accreditation we issue to a candidate who surpasses the petition signature threshold is for the office identified by that candidate.

Because the Rules provide for accreditation of an individual as a candidate for a specified International Union office, the accreditation of that individual expires in the event he ceases to be a candidate for the International Union office for which he was accredited.  Tim Sylvester was accredited as a candidate for IBT General President.  He was not accredited as a candidate for IBT General Secretary Treasurer, the position listed for him on the amended slate declaration submitted by Teamsters United on January 14..  Even though the number of signatures required to accredit a candidate for General President is the same as required to accredit that candidate for General Secretary Treasurer, the members who signed Teamsters United’s petitions declared that they supported Sylvester for General President.  He has presented no petition support for his candidacy for General Secretary Treasurer.[3]  Therefore, he no longer is entitled to the rights of an accredited candidate for International office.

The same is true for Zuckerman.  He was accredited as a candidate for IBT vice president at large.  The Teamsters United amended slate declaration, however, lists him as a candidate for IBT General President.  Neither Zuckerman nor Teamsters United submitted any petition signatures in support of Zuckerman’s candidacy for General President, and he therefore is not entitled to the rights of an accredited candidate.

Article VII, Section 10 grants each accredited candidate the right to have campaign literature published in the October 2015 and February 2016 issues of the IBT Magazines.  An accredited candidate for General President is entitled to one page of space in the magazine; an accredited candidate for General Secretary Treasurer is entitled to three-fourths of one page of space; an accredited candidate for vice president at large or regional vice president is entitled on one-half of one page of space; and an accredited candidate for trustee is entitled to one-fourth of one page of space.  Article VII, Section 10(a)(1).

We certified Sylvester as an accredited candidate for General President, and he exercised the right of accreditation to use one page of space in the October 2015 issue of Teamster.  Because Sylvester is now seeking an office for which he is not an accredited candidate, he has no allocation of space in the upcoming issue of Teamster.  The same holds true for Zuckerman.  He was entitled to one-half page of magazine space attributable to his accreditation as a candidate for vice president at large.  Because he no longer seeks that office and is not an accredited candidate for the office he now seeks, Zuckerman is no longer an accredited candidate and is not entitled to magazine space.

We turn now to the second accreditation question the protest raised: what impact, if any, does the amended slate declaration have on slate members who remain candidates for the International Union offices for which they were certified as accredited candidates?  We hold that the amended slate declaration has no impact on those slate members.  Accreditation is granted to individual candidates based on a showing of support among the union membership.  The Rules allow validly formed slates to seek accreditation using petitions listing multiple slate members, with each union member’s signature on a slate petition counting as an accreditation signature for each candidate listed on the petition, but the certification that results from such petitions is granted to an individual candidate who is determined to have surpassed the signature threshold.

Teamsters United was a validly formed slate at the time the accreditation petitions were submitted to our office on August 27, 2015.  Each candidate listed on Teamsters United’s petitions demonstrated sufficient petition support for his candidacy to achieve accreditation, and each candidate was accredited.[4]  Of the ten members of the Teamsters United slate listed on the amended slate declaration filed on January 14, eight are candidates for the same International Union offices for which they were severally accredited.  These are Thyer and Darmento (candidates for IBT vice president at large), Jones and Frisky (candidates for IBT Central region vice president), Shepler and Taibi (candidates for IBT East region vice president), Palmer (candidate for IBT South region vice president), and Galvan (candidate for IBT West region vice president).  Because each remains a candidate for the position for which accreditation petition support was demonstrated, the certification of each as accredited candidate remains in full force and effect.

In reaching this conclusion, we note that certification as an accredited candidate is achieved because that candidate demonstrated sufficient petition support among the membership for his candidacy.  Relying on that premise, we reject the protestor’s assertion that the Rules require all accredited candidates on a slate to remain candidates for the offices for which they achieved accreditation in order for any accredited candidate on the slate to maintain his accreditation.  We find nothing in the Rules that expressly or impliedly supports the protestor’s contention in this regard, nor is it a fair reading of the Rules to condition the continuing accreditation of an individual candidate on all slate members continuing to pursue their initially declared offices.  The requirement the protestor proposes would revoke the individual accreditation of slate members even in instances where a member of their slate were disqualified, died, or voluntarily withdrew his/her candidacy.    

The mutual consent requirement, a fundamental of the slate rule, binds candidates together once they have freely joined the slate, but even that requirement does not obligate a declared candidate to maintain a candidacy.  Accordingly, we do not comprehend the accreditation rule to require original slate members to maintain their original candidacies, where the slate rule itself does not impose such a requirement.    

Finally, we note that this case is materially different from the facts presented in Ostrach, 2005 ESD 43 (December 31, 2005), aff’d, 06 EAM 7 (January 9, 2006).  There, the Hoffa campaign circulated and then submitted to OES slate accreditation petitions without also submitting a valid slate declaration.  The slate declaration the Hoffa campaign submitted listed twenty candidates but had signatures of only nineteen.  We held that the slate accreditation petitions could not be considered in support of requests for certification as accredited candidates unless and until a slate declaration that matched the slate accreditation petitions was submitted.  Here, by contrast, Teamsters United submitted a valid slate declaration on August 18, 2015 and its slate accreditation petitions matching the slate declaration’s list of candidates and offices sought on August 27, 2015.  Certification of accreditation followed because the candidates seeking accreditation for particular offices matched the slate declaration’s list of candidates and offices sought.  The amended declaration changing the offices sought of two of the remaining ten slate members comes some five months after each of the Teamsters United candidates received accreditation.  The amendment does not retroactively replace the original slate declaration filing of August 18 and cause the slate declaration and slate accreditation petitions not to match.  Instead, the accreditation issued September 4 to all current candidates on the Teamsters United slate remains a valid certification, and the subsequent actions of Sylvester and Zuckerman in declaring their candidacies for positions for which they are not accredited has caused them to forego their status as accredited candidates that previously was granted them.

In summary, we GRANT the protest in part.  We hold that candidates Sylvester and Zuckerman have foregone their certification as accredited candidates by changing the International Union offices they seek to ones for which they are not accredited.  Neither Sylvester nor Zuckerman shall be entitled to space in the upcoming pre-convention issue of the Teamster magazine or any of the other rights accorded accredited candidates under the Rules.

We DENY the protest in all other respects.  The members of the Teamsters United slate who remain candidates for the offices for which they were accredited retain all rights and privileges under the Rules as accredited candidates.  Each may access the IBT magazine space to which the office he seeks entitles him, and each retains all rights and privileges to membership lists and other benefits of accreditation under the Rules.

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, 34^th 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 17^th 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

            2016 ESD 67 

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