September 19, 1996
VIA UPS OVERNIGHT
James P. Hoffa
September 19, 1996
Page 1
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Lloyd Phelan
Research USA
3637 Chervil
St. Charles, MO 63303
Ron Carey, General President
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
John Sullivan, Associate General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman, P.C.
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
Nathaniel K. Charny
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
Kenneth J. Rothman
Rothman, Sokol, Adler & Sarachan, P.C.
Pierre LaClede Center
7701 Forsyth Boulevard, 4th Floor
St. Louis, MO 63105
James P. Hoffa
September 19, 1996
Page 1
Re: Election Office Case No. P-908-IBT-SCE
Gentlemen:
James P. Hoffa, a candidate for general president, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) alleging that a poll being conducted by “Research USA” “was funded and/or sponsored by the IBT or by an employer, either of which are clearly prohibited from making contributions to candidates’ campaigns.” Mr. Hoffa further reasons that the conduct of a poll which is neither supervised nor regulated by the Election Officer interferes with the supervisory authority of the Election Officer over the 1996 election.
James P. Hoffa
September 19, 1996
Page 1
The IBT responds that there is no evidence to warrant a protest and that the protester is on a “fishing expedition.” The Carey campaign states it has no relation to the independent poll or Research USA.
Research USA, through IBT member Lloyd Phelan, denies that it is connected to the IBT, or the campaign of any candidate for International office.
The protest was investigated by Regional Coordinator Bruce Boyens.
Attached to the protest was a flyer which reads, in pertinent part:
an independent poll
Teamster Vote Hotline
Carey?
Hoffa?
vote for your future
1-900-263-9328
call any time for daily standing
...
RESEARCH USA St. Charles, Mo. (314) 928-4733
Mr. Phelan is conducting a poll, under the name Research USA, using a 900 phone number for individuals to call in a preference for a candidate in the race for IBT general president. Mr. Phelan contracted for the 900 number with his personal funds and retains the revenues collected from the 900 number. Anyone can call in and state their preference. The poll is not limited to IBT members, nor is it based on any sort of membership sample.
Mr. Phelan states that he is conducting the poll because he has a long-standing interest in both public and private political elections and has polled a number of elections over many years.
Research USA does not have any business or relationship with, or receive any compensation from, the IBT, Mr. Hoffa, the Hoffa campaign, Ron Carey, the Carey campaign, any IBT member or employer, any IBT subordinate body or any candidate for International office. Research USA has not contributed monies to any of these persons or entities.
The Rules at Article XII, Section 1(b) prohibit employers and unions from making any “campaign contribution,” which is defined as any contribution “where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate.” Thus, in Giacumbo, P-001-IBT-PNJ et seq. (September 29, 1995), aff’d, in pertinent part, 95 - Elec. App. - 32 (KC) (November 1, 1995), the Election Officer found that portions of a poll conducted by the IBT constituted a prohibited campaign contribution because the responses had the foreseeable effect of influencing Mr. Carey’s election.
James P. Hoffa
September 19, 1996
Page 1
Under the Rules, the term “employer” means any individual, corporation, trust, organization or other entity that employs another, paying monetary or other compensation in exchange for that individual’s services. There is no evidence in this case that Mr. Phelan employs any individuals at Research USA. While it appears that Mr. Phelan has contracted with an answering service, as the Election Officer stated in the Advisory on Campaign Contributions and Disclosure, “If an individual is not otherwise an employer, the payment of services of an independent contractor, even in connection with income-producing activities of the individual, . . . by itself, does not transform the individual into an employer.” Moreover, even if Mr. Phelan were an employer, there is no evidence that his poll has the purpose, object or foreseeable effect of influencing the election of either of the candidates for general president.
Mr. Hoffa posits that, regardless of whether the protested polling constitutes a prohibited contribution, the Election Officer should still find that this conduct violates the Rules because by letting anyone vote in the poll, “this presents an obvious and dangerous potential for corrupt elements to interfere with the election process” by agents of organized crime, Teamster employers or rival labor organizations who may vote. Mr. Hoffa cites to the Election Officer’s efforts to enjoin the adoption and implementation of an amendment to the IBT Constitution proposed by Mr. Hoffa which would have provided for a debate between the candidates for general president at the Convention. He reasons that the poll being conducted by Mr. Phelan is similarly “outside of the Election Officer’s supervision and purview presents a more compelling case for the Election Officer to review.”
The Election Officer rejects this contention. The amendment to the IBT Constitution proposed by Mr. Hoffa interfered with the Election Officer’s discretion to schedule and conduct candidate forums, pursuant to Article VIII, Section 6 of the Rules, and proposed that the debate be conducted by the IBT, not the Election Officer. In granting the injunction, the Court ruled:
As the Consent Decree and this Court’s rulings make clear, the Election Officer--and only the Election Officer--may establish the rules that govern the 1996 IBT Election, which must then be approved by this Court. Because the proposed amendment seeks to provide for a debate at the Convention, this amendment impinges on the Election Officer’s authority. As both the Election Officer and the Government argued, the proposed amendment contradicts Article VIII, section 6 of the Election Rules . . .
U.S. v. IBT, In Re: Election Officer Application V, 88 Civ. 4486 (DNE) (July 12, 1996) (slip op. at 12). In the instant case, neither the IBT, a subordinate body, or candidate is attempting to establish any rules to govern the IBT election. Rather, an IBT member without any relationship to any campaigns is capitalizing on the IBT election of officers to make a profit.
James P. Hoffa
September 19, 1996
Page 1
The Election Officer has previously prohibited polling when it was performed by a local union and could be construed as an endorsement or a prohibited campaign contribution under the Rules. Gilmartin, P-571-LU559-SCE (March 14, 1996). No similar situation exists here. Thus, the Election Officer finds that neither Mr. Phelan, Research USA nor the IBT has violated the Rules.
Accordingly, the protest is DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Bruce Boyens, Regional Coordinator