Zuckerman, 2017 ESD 383

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: FRED ZUCKERMAN,                    )           Protest Decision 2017 ESD 383

                                                                        )           Issued: February 15, 2017

            Protestor.                                           )           OES Case No. P-413-110416-NA           

____________________________________)                      

Fred Zuckerman, candidate for IBT General President on the Teamsters United slate, 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 an IBT court filing in United States v. IBT distributed to at least one local union principal officer who supported the Hoffa-Hall 2016 slate constituted a campaign contribution from the IBT to the Hoffa-Hall 2016 slate because the filing was a document prepared on behalf of the IBT and was not available to the public.

            Election Supervisor representative Jeffrey Ellison investigated this protest.

Findings of Fact and Analysis

On October 31, 2016, Independent Investigations Officer Joseph diGenova submitted a report to the IBT General Executive Board recommending a charge be brought against General Secretary-Treasurer Ken Hall for bringing reproach upon the IBT by obstructing and interfering with an investigation of the IIO.  Specifically, the recommended charge alleged Hall had failed to produce tens of thousands of emails the IIO had requested.

diGenova’s report set off a flurry of activity in United States v. IBT, the court case filed in 1988 that produced the Consent Decree and, more recently the Final Order, and over which Judge Loretta Preska presides.  On November 3, 2016 at 2:29 p.m., the IBT, through outside counsel Viet Dinh, filed a letter motion seeking to enjoin the charge against Hall, stating that the IIO had unfairly and for political reasons escalated a discovery dispute between the IBT and the IIO into a charge of obstruction against Hall.  The same day, the Government filed a motion to enforce the Final Order and compel the IBT to produce the documents it had withheld from the IIO.

The Dinh letter, designated as Docket #4524 on the Court’s docket, had two exhibits.  Exhibit 1 was a copy of an April 12, 2016 letter from diGenova to Dinh that listed 58 names and email addresses of individuals. 

Filings in U.S. District Court are made electronically, using the CM/ECF system.[1]  Notice of filings by any party are automatically and instantaneously distributed by email to all attorneys who have appeared in the case; those attorneys may access the filing through a link included in the email notification.  In addition, filings may be reviewed by any member of the public through the PACER system.[2]  To protect personal privacy of individuals, the ECF rules require redaction of “personal identifier” information. 

At 5:24 p.m. on November 3, 2016, some three hours after Dinh’s letter in Docket #4524 was made, counsel for the IBT wrote the Court concerning the exhibit that contained the 58 names and email addresses of individuals.  The letter (Docket #4530) stated that through inadvertence the names and email addresses were filed without redaction.  The letter requested that “existing docket entry 4524 be removed, at which time we will immediately re-file the letter motion and two exhibits, this time with a redacted Exhibit 1.”  The letter was stamped “So Ordered” and was signed by Judge Preska.  At 5:27 p.m. that day, a notice was posted to the docket stating: “deleted document.  Deleted document number [4524] … pursuant to docket entry [4530].”  Immediately thereafter, at 5:43 p.m. on November 3, 2016, the IBT letter with exhibits was refiled as Docket #4531, with Exhibit 1 redacted of names and email addresses of the 58 individuals.  As indicated, the refiling was accomplished the same date the original filing was made.

Using PACER, counsel for the protestor checked the Court docket to retrieve the letter, apparently doing so during the very brief interim between the filing of the letter requesting that the original filing be removed and the filing of the redacted version.  He was unable to obtain the filing at that moment because the original version was unavailable and the refiling had not yet been made.

At 7:45 p.m. on the evening of November 3, 2016, the day the original filing and refiling were made, protestor Zuckerman received from a local union principal officer who was an avowed supporter of Hoffa-Hall 2016 the original Dinh letter, Docket #4524, without the attachments.  The investigation suggests that the local union officer sent the letter to Zuckerman following a phone conversation between the two, with the local union official citing the letter to refute campaign publicity that Teamsters United had created and distributed that Hall had been accused of corruption. 

To our representative months later, the local union official who emailed the Dinh letter to Zuckerman was unable to recall or reconstruct precisely from whom he had received the letter.

Hoffa-Hall 2016 denied distributing the Dinh letter at all, whether to its avowed supporters or generally. 

The IBT distributed the filing to members of the General Executive Board at approximately 3 p.m. on November 3, 2016.  At 8:55 a.m. the next morning, November 4, 2016, Bret Caldwell of the IBT communications department requested pre-publication review from OES pursuant to Article VII, Section 8(d) of a statement to local union and joint council officials that, as proposed, would include the Dinh letter.  Following that review, the IBT issued a statement to its affiliates that did not include the Dinh letter.

This protest alleged that the IBT made an impermissible campaign contribution to the Hoffa-Hall 2016 slate by distributing the Dinh letter, which the protest stated was “unavailable” publicly and “the sole property of the IBT,” for the purpose of “reassur[ing] wavering supporters.”

We find that the filing, as originally made with the unredacted exhibit and as subsequently refiled with the redacted exhibit, was in fact public, was distributed to all counsel who have valid appearances in the case through the ECF system (including, we note, counsel for TDU, an independent committee aligned with Teamsters United in this election).  That the filing was unavailable through the PACER system for a brief period on November 3, 2016, the date it was filed, does not support a claim that it was a union asset used to assist a slate in this election.

We further find no evidence to support the claim that the IBT or Hoffa-Hall 2016 distributed the Dinh letter. 

Accordingly, we 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, 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, c/o Jeffrey Ellison, 214 S. Main Street, Suite 212, Ann Arbor, MI 48104, 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 383

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