IN RE: REMILDA FERGUSON, Protestor.
Protest Decision 2011 ESD 132
Issued: February 22, 2011
OES Case No. P-106-013111-NE
Remilda Ferguson, member of Local Union 237, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that Richard Scott used employer resources to campaign, in violation of the Rules.
Election Supervisor representative Deborah Schaaf investigated this protest.
Findings of Fact
On Saturday, January 29, 2011, Scott sent an email to 26 co-workers from his work-supplied email address to theirs. The subject line read "Sandy Pope for Teamster General President." The body of the email read in its entirety "http://sandypope2011.org."
Protestor Ferguson alleged that Scott impermissibly used an employer resource, the email system, to campaign.
Scott told our investigator he has been a member of Local Union 237 for 30 years but has never been involved in union activities. He said he saw a flyer for Sandy Pope "downstairs by the time clock" in the building where he works. He said the flyer "took him for a loop" because Greg Floyd, the president of Local Union 237, had just been re-elected. Scott said he usually recognized the names of people who were running in local elections. He sent the email to a group of his friends who might know something about it.
Investigation showed that the City of New York, Scott's employer, maintains a Policy on Limited Personal Use of City Office and Technology Resources, which permits limited use of City-provided email that "does not interfere with or otherwise impede the City's operations or employee productivity."
Analysis
Article VII, Section 12(d) states that "[n]o restrictions shall be placed upon candidates' or members' pre-existing rights to use employer … bulletin boards for campaign publicity. Similarly, no restrictions shall be placed upon candidates' or members' pre-existing rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on employer … premises. Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis."
Our inquiry focuses on whether a pre-existing right exists to use employer-provided email for personal purposes. The City's policy expressly permits use of email on a de minimis basis that does not interfere with City operations or employee productivity. We find that Scott's email did not violate the limits set forth in City policy and therefore did not violate the Rules. 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:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax: (212) 751-4864
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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2011 ESD 132
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Remilda Ferguson
65-67 Columbia Street
New York, NY 10002
adlimer@aol.com
Richard Scott
Property Maintenance Supervisor
Eastchester Gardens/Middletown Plaza
1130 Burke Avenue
Bronx, NY 10469
Fax: 718.881.4416
Ruben Torres, Secretary-Treasurer
Teamsters Local Union 237
216 W. 14th Street
New York, NY 10011
rtorres@local237.org
Deborah Schaaf
1118 Coddington Road
Ithaca, NY 14850
debschaaf33@gmail.com
David F. Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com
Maria Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com