Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: MATT TAIBI,                                 )           Protest Decision 2017 ESD 363

                                                                        )           Issued: January 12, 2017

            Protestor.                                           )           OES Case No. P-375-100616-NE     

____________________________________)                      

            This decision supplements our decision in Taibi, 2016 ESD 306 (October 17, 2016), aff’d, 2016 EAM 33 (December 9, 2016).  In that decision, we found inter alia that Hoffa-Hall 2016 violated Article VII, Section 3(a) by providing a list of members of Local Union 251 to the 251 Strong slate for use by that slate in that local union’s officers election, where the list, issued to accredited or nominated candidates for International office, could permissibly be used only to advance the campaigns of those candidates for International office.

            Among other remedies for this Rules violation, we ordered the following:

In the event any candidate or slate that is opposing the 251 Strong slate presents any allegation that the results of the local union officers elected were affected by the unlawful use of the IBT membership list by or on behalf of the 251 Strong slate and prevails on that allegation (whether in the Union’s internal remedial system or under Title IV of the LMRDA), we order Hoffa-Hall 2016 to pay the actual attorneys fees and costs of the candidate or slate presenting that allegation, up to the sum of $40,000.00.  We order Hoffa-Hall 2016, no later than Wednesday, October 19, 2016, to establish an escrow bank account in this amount, fund it with verified funds, and provide OES with the name and address of the financial institution where the account is established, and the number of the account. Hoffa-Hall 2016 shall submit its declaration of compliance with this remedy, made under penalty of perjury, to OES no later than Thursday, October 20, 2016. Any request for disbursement of funds from that account shall be made to OES, which shall make the final determination on whether the condition for release from escrow is satisfied.  If no candidate on the 251 Strong slate is elected in the Local Union 251 officers election, or there is no post-election challenge to the result, we will dissolve this aspect of the remedial order.

Jim Croce, lead candidate on The Members United slate of candidates for Local Union 251 office, filed a post-election protest alleging several violations of the rules governing the local union officers contest, including that the 251 Strong slate made improper use of the membership list provided to it by Hoffa-Hall 2016.  The post-election protest was filed while the appeal of Hoffa-Hall 2016 of our decision in Taibi was pending.  The Election Appeals Master affirmed our decision in all respects, and specifically denied Hoffa-Hall 2016’s argument that the escrowed attorneys fees should not be made available to Croce, if he met the criteria for them laid out in our decision.  She wrote as follows:

           The Hoffa Campaign asserts that the Election Supervisor lacked authority to impose the escrow remedy because it does not relate to any IBT election.  As noted above, the Election Supervisor acknowledges that he does not have jurisdiction over local union elections.  The Election Supervisor does, however have broad jurisdiction to remedy violations of the Rules.  To the extent a violation of the Rules may affect the outcome of a local union election, the remedy may, of necessity, pertain to the affected local election. That includes appropriate remedial compensation to a union member who may suffer financial harm as a result of the violation.  The escrow remedy does not put the Election Supervisor in the position of supervising the local election or adjudicating Mr. Croce’s charge.  Rather, the escrow remedy is narrowly tailored to afford compensation to Mr. Croce if he is ultimately successful in establishing his right to attorneys’ fees as a result of the violation of the Rules by the Hoffa Campaign.  In the absence of this remedy, the liability, if any, for attorneys’ fees payable to Mr. Croce as a result of the Rules violation would be borne unfairly by Local 251.

            The Hoffa Campaign further argues that Mr. Croce should not benefit from the escrow remedy because he did not file a protest with the Election Supervisor and did not participate in the appeal of ESD 306.  Nothing in the Rules requires a candidate to file a protest in order to benefit from remedial relief awarded as a result of an investigation by the Election Supervisor.  See Article XIII, Section 4.

Joint Council 10 conducted a hearing on Croce’s post-election protest on November 28, 2016, at which the hearing panel received evidence and argument in support of the claim that alleged electoral misconduct affected the results of the local union officers election.  In a written decision dated December 22, 2016, the panel denied the post-election protest in its entirety, writing as follows:

Especially considering the large margins of victory by the members of the United Action slate, the Executive Board concludes that Brother Croce failed to prove that the challenged conduct, either considered individually or in combination, affected the outcome of the Local Officer and Business Agents Election and, therefore, Brother Croce’s Election Protest is denied.

Investigation found that the joint council decision was mailed to all interested parties on December 22, 2016, the date it issued.  Under Article XIX, Section 2(a) of the IBT constitution, an appeal to the IBT General Executive Board was available to Croce, provided he filed such appeal within fifteen calendar days of the mailing of the decision from which the appeal was taken.  By this measure, the last date by which the appeal could timely be filed, therefore, was January 6, 2017.  The IBT constitution expressly permits filing by mail, and provides that an appeal postmarked on the date the appeal must be filed is considered timely.  Hoffa-Hall 2016 filed a motion with the Election Appeals Master for release from the escrow remedy on January 10, 2017, asserting that Croce had not filed an appeal, that the joint council decision on his post-election protest was therefore final, and that the escrow fund should be dissolved.  We suggested in a responsive filing with the Election Appeals Master that jurisdiction to consider Hoffa-Hall 2016’s motion lay with the Election Supervisor, a point apparently conceded by Hoffa-Hall 2016 in a reply to our response.  We then undertook consideration and investigation of the merits of Hoffa-Hall 2016’s motion.

Upon inquiry from our office, Croce stated that he had not filed an appeal from the joint council decision nor did he intend to file one.  The IBT, through counsel, confirmed that no appeal had been received as of January 11, 2017. 

On these facts, we conclude that no candidate who opposed a candidate on the 251 Strong slate in Local Union 251’s officers election has prevailed nor can prevail on an allegation that the improper use by the 251 Strong of the membership list provided it by Hoffa-Hall 2016 affected the results of that election.  Accordingly, we find that the escrow fund previously ordered may be dissolved and the monies in that fund be put to any purpose permitted by the Rules.

So ordered.

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

            2017 ESD 363

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