Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: HOFFA-HALL 2016,                      )           Protest Decision 2016 ESD 276

                                                                        )           Issued: July 20, 2016

            Protestor.                                           )           OES Case Nos. P-042-090215-NA,

                                                                        )             P-043-090215-NA & P-067-110215-NA    

____________________________________)

            Hoffa-Hall 2016 filed three pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  Protest P-042-090215-NA alleged that Take Back Our Union failed to account for all campaign contributions and expenditures, as required by the Rules.  Protest P-043-090215-NA alleged that Take Back Our Union (TBOU) did not qualify as an “independent committee” under the Rules.  Protest P-067-110215-NA alleged that Take Back Our Union failed to file a CCER report timely for reporting period #2.[1]

            We consolidated these protests for investigation and issued a decision denying them in Hoffa-Hall 2016, 2015 ESD 58 (November 30, 2015).  In that decision, we found that TBOU properly qualified as an independent committee; that it was formed in Spring 2014 to generate interest in the 2016 IBT International officers election in opposition to the expected slate of candidates to be led by James Hoffa; that it organized a number of events for that purpose that were attended by Teamster members, some of whom would become candidates for International office; that it was never controlled by a candidate or candidates for International office; that it raised funds from Teamster members for the purpose of influencing the IBT election; that it ceased operations when candidates emerged; and that it transferred its remaining unspent funds to the Teamsters United slate.

The protestor appealed our decision, contending we had erroneously concluded that TBOU had ceased operations, pointing to the fact that its Facebook page remained in existence.  Further, the protestor argued that TBOU continued in existence because it had “morphed” either into the Teamsters United slate or another entity.  Because the protestor raised issues on appeal that had not been investigated, we requested and received a remand of our decision.

            Election Supervisor representative Jeffrey Ellison investigated these protests.

Findings of Fact and Analysis

            Article XI, Section 2 of the Rules requires all candidates for International office, all slates of such candidates, and “[e]very independent committee which has received or solicited contributions in excess of $1,000” or made expenditures in excess of that sum, “whether of money or of any other thing of value, where the purpose, object or foreseeable effect of any such contribution or expenditure is to influence the election of one or more International Officer candidates, whether or not any such candidate is as yet declared, accredited or nominated,” to file periodic financial reports of their activities.    Article XI, Section 2(a)(3).

            The Rules define “independent committee” as “any person or entity not controlled by a candidate or slate who/which has accepted any campaign contribution, as defined by these Rules, or who/which has made any expenditure, where the purpose, object or foreseeable effect of the contribution or expenditure is to influence the election of International Officer candidate(s).”  Definition 24.  “Candidate” is defined as any member who is actively seeking nomination or election for any … International Officer position.”  Definition 6.

Take Back Our Union (TBOU) was formed in Spring 2014 to generate interest among Teamsters in the 2016 election of International officers and to draft candidates and stimulate formation of a slate to oppose those incumbent officers expected to run.  Investigation showed that around that time Nick Perry, a rank and file member of Local Union 413, started a Facebook page,[2] opened a post office box and a bank account, and maintained a financial spreadsheet to document income and expenses.    

            Between June 2014 and February 2015, TBOU organized seven meetings for interested Teamsters around the country.  Teamster members speaking at these events included Sandy Pope,[3] Fred Zuckerman,[4] and Tim Sylvester.[5]  Perry, the manager of TBOU, was never a candidate for International office; when the Teamsters United slate first submitted a signed slate declaration to OES in August 2015, Perry was designated as the slate treasurer.

            Flyers announcing TBOU events in 2014 and early 2015 explained TBOU’s mission.  As an example, one stated the following:

Teamster members are tired of contract givebacks.  We’ve formed the Take Back Our Union Committee to organize for change.

Come to the first ever Take Back Our Union meeting in New Jersey.

Meet Teamsters members who Voted No against givebacks at UPS, ABF, YRC, and UPS Freight.  Meet Teamsters from every industry who are building a movement to rebuild union power.

Guest speakers include proven Teamster leaders who know how to defeat concessions, win strong contracts and defend our benefits.

            TBOU raised funds to support its operation.  Virtually all contributions to TBOU were received in connection with events held in June and August 2014 and February 2015.  Similarly, the expenditures TBOU incurred related to those events, including flyers promoting the events, hall rental, and travel expenses for speakers.

Investigation showed TBOU ceased operation in April 2015.  Perry told our investigator that, when Zuckerman, Sylvester, and others came forward as candidates in opposition to the anticipated slate led by General President Hoffa, he concluded that TBOU was no longer needed.  In April 2015, TBOU transferred the remainder of its verified campaign and legal and accounting funds to the Teamsters United slate and closed its bank accounts.[6]  TBOU’s post office box expired.  The Facebook page remained up for a time but had no posting to its timeline after June 16, 2014.  Investigation following the remand found no evidence that TBOU accepted any campaign contributions, or made any expenditures, with the purpose of influencing the election of International Office candidates after it closed the bank accounts.

Candidates for International office, slates of such candidates, and independent committees as defined under the Rules must file periodic reports of their fundraising and expenditures of campaign and legal and accounting funds.[7]  The first reporting period (“Period #1) covered April 1, 2012 through May 31, 2015.  Under Article XI, Section 2(d)(1)(i), the reports for Period #1 were due June 15, 2015.  By Advisory issued June 14, 2015, OES extended the filing deadline to June 30, 2015 for all required to file.  TBOU requested and was granted an additional extension to file its Period #1 CCER and Supplemental Report #1 reports to July 15, 2015.  The reports were filed July 14, 2015.

The verified monetary contributions[8] TBOU received totaled $4,668.00.  TBOU filed its financial reports as an “independent committee” under the Rules because it was not controlled by a candidate and the contributions to the committee exceeded $1,000.  In Protest No. P-043-090215-NA, Hoffa-Hall 2016 challenged this filing status, contending the status gave TBOU an advantage with respect to disclosure of its contributors that was not warranted under the Rules.  The protestor argued instead that TBOU should have filed its financial reports either as a candidate or a slate of candidates.

            The Rules treat financial reports filed by candidates and slates differently from those filed by independent committees.  Financial reports of candidates and slates filed pursuant to Article XI of the Rules are subject to disclosure to each nominated or accredited candidate for International office.  Article XI, Section 2(e).  However, this same provision states that financial reports filed by independent committees may be disclosed only in redacted form, with the names, addresses, and local union numbers of the contributors omitted.  Thus:

No candidate may inspect or copy any campaign financing and expenditure report filed by an independent committee, without the express prior written consent of the independent committee by its authorized representative; provided, however, that it is recommended that the Election Supervisor shall provide at a candidate’s request limited disclosure of the following portions of an independent committee’s Campaign Contribution and Expenditure Reports:

• Redacted schedules which reflect the total amount of contributions and total number of contributors, but which do not reflect the identity of individual contributors or their local unions.
• Redacted schedules of expenditures which do not reflect the identity of members of the independent committee or their local unions.

Hoffa-Hall 2016 requested the Period #1 reports of TBOU.  When it received reports with contributor and expenditure information that identified members redacted, Hoffa-Hall 2016 protested that TBOU had impermissibly filed as an independent committee.  The protestor asserted that TBOU did not qualify as an independent committee because it was “controlled by a candidate or slate” within the meaning of Definition 24. 

            On remand, the evidence previously obtained concerning the formation, organization, and activity of TBOU was reviewed and additional evidence was gathered.  This investigation showed that Perry created TBOU following his experience in the “Vote No” campaign, a largely grassroots effort to deny ratification of the national UPS collective bargaining agreement and the supplement and rider agreements negotiated by UPS and the IBT.  He told our investigator he found widespread dissatisfaction with the agreements and the Teamster leaders who negotiated them among members, stewards, and local union leadership.[9]  He concluded that a strong effort should be made, in his words, to “take back our union” from leaders who failed to insist on strong contracts for Teamster members. 

            According to Perry, whom we credit, no formal committee structure was created for TBOU.  There was no committee chair, bylaws, adherence to Roberts Rules of Order, or even committee meetings.  Instead, he contacted members he believed were like-minded to gauge their interest and support, and he organized regional meetings at which members could gather to share their interest in replacing the existing IBT leadership.  Speakers invited to attend such meetings included Sylvester, who as leader of a New York City UPS local union was said to have obtained better terms from UPS in a previous contract negotiation; Zuckerman, the president of a large local union with a substantial UPS membership in Louisville, KY, who had been a principal leader of the “Vote No” campaign and whose local union UPS membership had rejected the rider agreement by more than 90%; and Pope, because she previously had mounted a candidacy for IBT General President.

            Seven TBOU meetings were held between June 2014 and February 2015.  The first two meetings were held on June 21, 2014, one in New Jersey, the other in Philadelphia.  A third meeting was held the next day, June 22, 2014, near Pittsburgh.  Two more meetings were held on August 9, 2014, one in Dayton OH, the other in Louisville KY.  The final two meetings were held on February 21 and 22, 2015, in Columbus OH and near Cleveland OH, respectively. 

            As noted, Zuckerman declared his candidacy for International office on August 8, 2014; Sylvester declared his candidacy for IBT General President on March 12, 2015. 

            Perry denied that TBOU was “controlled by a candidate” within the meaning of Definition 24.  Specifically, he denied that any person who was or became a candidate for International office had any organizational role in TBOU, whether at its creation, in the development of its mission, in the organizing and hosting of meetings of interested members, in the solicitation of contributions or the payment of expenses, in the decision to transfer contributions that TBOU had on hand to the Teamsters United slate once it was formed, or in the decision to cease TBOU’s operations.  Five of the seven meetings TBOU hosted were organized and announced before any member declared his candidacy for International office.  Protestor has presented no evidence to establish that TBOU was controlled by a candidate, other than producing flyers showing that certain members who subsequently became candidates appeared as guest speakers at TBOU events.  This is insufficient to show that TBOU was controlled by a candidate.

On these facts, we conclude that TBOU was an independent committee under the Rules.  Perry formed it to promote the election of members to lead the IBT, and TBOU raised and expended more than $1,000 to that end.  Although some individuals who were guest speakers at TBOU events subsequently became candidates for International office, the evidence demonstrates that TBOU was “not controlled by a candidate or slate” during the period it existed.  To find a committee is actually “controlled” and not independent requires evidence that a candidate or slate directs the committee’s activity in raising and expending funds to influence the election of International Officer candidates.  Like-minded Teamsters may unite in support of a particular candidate and decide on their own to raise and expend funds in that effort.  That such a group makes its own decision of support is not evidence of candidate control.  Here, there is no evidence of any candidate or slate being involved in organizing the seven TBOU meetings or the fundraising and expenditures associated with them. 

            The CCER report TBOU filed for Period #1 showed seven fundraising events.  Three listed $0.00 for the cost associated with conducting the event.  Elsewhere in the report[10] is proof that members eligible to contribute to campaigns under the Rules made in-kind contributions to TBOU by paying the meeting space rental for the June 21, 2014 event in Philadelphia ($265.00), the June 22, 2014 event in Western Pennsylvania ($200.00), and the August 9, 2014 event in Louisville ($150.00).[11]  One remaining event, conducted at the Hilton Garden Inn in Edison, NJ, showed total expenses associated with the event of $11.97, which represented the cost of raffle tickets sold there.  The venue expense for this event was paid by a member directly to the venue host as an in-kind contribution.  However, use of the conference room was so hampered by nearby construction activity at the facility that the hotel refunded the room cost by issuing a credit for the full charge back to the contributing member.  Email from the hotel sales manager to the member who had paid the room charge explained that the charge was refunded because of “the inconvenience with the noise issues.”  There was no need for TBOU to report this net zero transaction.  

            Protest P-043-090215-NA alleged that TBOU was not an independent committee under the Rules.  We denied this protest in our original decision, and we DENY it after further investigation, finding that TBOU during its existence had the purpose of influencing the election of International officers under the Rules and was not controlled by a candidate or slate.

            Protest P-042-090215-NA alleged that TBOU failed properly to account for expenses associated with its events.  We denied this protest in our original decision, and we DENY it after further investigation, finding that the CCER report TBOU filed documented the expenses incurred in hosting its events, either in the form of itemized expenditures by TBOU itself or as in-kind contributions to TBOU by members who paid the venue expenses directly.

            Protest P-067-110215-NA alleged that TBOU failed to file a CCER report and Supplemental No. 1 for Period #2, June 1, 2015 through September 30, 2015.  We denied this protest in our original decision, and we DENY it after further investigation, finding that TBOU ceased operations, transferred all of its funds to Teamsters United, and closed its bank accounts prior to the start of the second reporting period.  As such, the reports for Period #1 were the only ones TBOU was required to file under the Rules.

            The protestor asserted that we reached the wrong conclusion when we denied Protest P-067-110215-NA originally.  It claimed that TBOU remained in existence.  As proof, it first presented evidence that counsel for Hoffa-Hall made a contribution to TBOU through TBOU’s Facebook page in early December 2015, the page still in existence at that time.  Investigation showed that the Facebook page included a feature that allowed a user to make a contribution using a credit card through PayPal.  However, the bank account that Perry had previously established to receive such contributions had been closed, and there was no account to which the contribution that protestor’s counsel attempted to make could be directed.  The attempted contribution was rejected and credited back to counsel’s credit card.  By definition, an “independent committee” must accept campaign contributions or make campaign expenditures in the IBT International officer election.  Rules, Definition 24.  TBOU did not engage in any such activity after Perry transferred out its excess funds and closed the TBOU bank accounts.  Counsel’s failed attempt to demonstrate TBOU’s ongoing activity only proved the opposite:  TBOU had shut off its mechanism for raising and expending campaign funds. 

            The protestor asserted that TBOU had “morphed” into Teamsters United.  It presented no evidence to support this contention, nor can we discern any advantage under the Rules to an independent committee to become a candidate or a slate of candidates.  As candidates and slates must report the identifying information of all persons who contribute to them, had TBOU become Teamsters United, as the protestor argues, contributions made to Teamsters United would be fully disclosable to all other candidates.  Perry has signed the Teamsters United CCER reports for the reporting periods starting on June 1, 2015 (Period #2) and is also identified as the slate treasurer on the August 2015 and June 2016 Teamsters United slate declarations.  That role is not evidence that TBOU, before its April 2015 windup, was controlled by a candidate or slate or that it “morphed” into Teamsters United. 

            The protestor also asserted that TBOU had become another entity, called “Take Back International Brotherhood of Teamsters” (TBIBT).  The protestor presented its evidence for this assertion to us on June 25, 2016.  Investigation showed that this entity was a Facebook page only, that it was created in April 2014 by Mark Timlin, another member who was active in the Vote No effort and who attended some of the TBOU events.  In March 2016, Timlin changed the name of the Facebook page to “Hoffa/Hall Must Go” (HHMG).  He told our investigator that TBIBT had no affiliation with TBOU, that TBIBT operated as a forum to which like-minded members could post news and opinions about the IBT, and that occasionally information was posted to it about TBOU events.  Timlin denied that either TBIBT or HHMG received contributions or made expenditures. 

            On these facts, we find no evidence that TBOU continued to exist in any form, whether as TBOU, as Teamsters United, as TBIBT, or as HHMG.  To the contrary, we find that TBOU ceased to exist when it transferred its remaining funds to Teamsters United in March and April 2015,[12] zeroed out its balances,[13] and closed its bank accounts.

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 276 

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