Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: LOCAL UNION 651 and,             )           Protest Decision 2021 ESD 38

      ANTHONY BLAIR,                             )           Issued: January 4, 2021

                                                                      )           OES Case Nos. P-002-060320-MW

Protestors.                                        )                       & P-013-072320-MW

___________________________________)

Local Union 651 filed a reach-back protest in Case No. P-002-060320-MW pursuant to Article XIII, Section 2(a) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that former principal officer Mike Philbeck violated the LMRDA by using the official local union Facebook page to oppose the candidacy of Fred Zuckerman for International office.  Election Supervisor representative Jeffrey Ellison investigated this protest.

Anthony Blair, member of Local Union 89, filed a pre-election protest in Case No. P-013-072320-MW pursuant to Article XIII, Section 2(b) of the Rules.  The protest alleged that Local Union 651 and its principal officer, Mike Watson, violated the Rules by using union resources – a local union Facebook page – to support the O'Brien-Zuckerman 2021 slate of candidates for International office.  Election Supervisor representative Joe Childers investigated this protest.

Both protests concern alleged campaign use by the same Facebook page.  Accordingly, they are consolidated for decision.

Findings of Fact

Mike Philbeck served three terms as principal officer of Local Union 651 in Lexington KY, ending his tenure in December 2018.

Soon after he first assumed office in January 2010, Philbeck created a Facebook page titled “Teamsters Local.”  He did so by using the “Create Page” on his personal Facebook account, which generated a unique URL devoted to the new page.  In the “About” section of the “Teamsters Local” page, he identified it as a “Labor Union – Organization,” and listed the address, phone, and web address as that of Local Union 651.  In October 2015, he changed the name of the Facebook page to “Teamsters Local 651,” otherwise leaving the information in the About section unchanged. 

Philbeck lost a re-election bid in fall 2018 and left office when his term expired on December 31, 2018.  Three days before the end of his term, Philbeck changed the profile photo on the Teamsters Local 651 Facebook page to one depicting six unsaddled horses, under a banner title that read, “Kentucky Teamsters of the Bluegrass,” while leaving the content of the About section unchanged.  He did not turn over the Facebook page password to his successor in office, contending that the page was personal and not the local union’s.  In September 2019, he changed the name of the page in the About section to “Kentucky Teamsters of the Bluegrass 651” from “Teamsters Local.”  He changed the description of the page to read: “This Teamster 651 page is currently ran [sic] with active 651 membership including former President and business agent of 9 years MICHAEL PHILBECK since 2010.  Any views expressed herein are not necessarily those of the current executive board.”

The executive board that took office in January 2019 contended that the Facebook page Philbeck had created in 2010 and refused to surrender was the property of the local union.  It filed suit against Philbeck in U.S. District Court in March 2019 on a variety of legal theories, seeking return of the page as well as other relief.  The local union obtained a preliminary injunction that same month, barring Philbeck “from posting on the social media accounts he controls that are portrayed, publicized, or otherwise held out or could be perceived as official accounts or pages of the Union without identifying himself as the poster. Defendant must identify himself as the author of any post on any social media page perceived as an official page of the Union in bold print and all caps. Defendant must also state that he is not a current officer of the Union in any of his posts.”  The injunction also barred Philbeck from holding himself out as a current officer of the local union.

In September 2019, the local union filed a contempt motion, contending that Philbeck had violated the terms of the March 2019 injunction.  The local union attached to the motion screenshots of Facebook posts Philbeck made after entry of the preliminary injunction that did not identify Philbeck explicitly as a former officer of the local union. On October 17, 2019, the court modified the preliminary injunction to require the following:

Defendant Michael Philbeck shall place the following notation at the beginning and end of every future post on all of the social media accounts which are in any way related to the union: “This posting is not an official posting of the International Brotherhood of Teamsters Local 651 and does not represent the views of any of its officers.  Instead, it is posted by Michael Philbeck, a former officer of the International Brotherhood of Teamsters Local 651, who is currently a defendant in a civil action brought by the International Brotherhood of Teamsters Local 651.” The notation shall be posted in capital letters and, if possible, shall be in bold print. To avoid any misunderstanding, the notation must be on every post that makes reference to the International Brotherhood of Teamsters Local 651, any of its current or former officers, or anyone running for union office.

After entry of the modified preliminary injunction, there is no evidence Philbeck made any further posts to the Facebook page through the date the federal court case concluded in July 2020.

            The local union moved for summary judgment on its five-count complaint in February 2020.  By order entered June 3, 2020, the court granted the motion with respect to the common-law invasion of privacy and false designation of origin (Lanham Act) counts, dismissing the claims for breach of contract (LMRA §185), breach of fiduciary duty (LMRDA §501), and common-law conversion.  The court ordered Philbeck to turn over the passwords to all social media accounts “purporting to be official Union accounts” within 30 days of judgment entry.  Philbeck sought to comply with the judgment but discovered that, because his personal Facebook page and the “Kentucky Teamsters of the Bluegrass” Facebook page both had were related to his personal username and password, he could not turn over the password without also giving the local union access to his personal Facebook page.  Accordingly, in consultation with the local union’s attorney, Philbeck petitioned the court for modification of the judgment that would eliminate the requirement that he turn over the password to the Facebook account and substitute for it a requirement that he grant the local union administrative access to the “Kentucky Teamsters of the Bluegrass” Facebook page and never rescind that access.  The court entered an order adopting this modification on July 6, 2020.  Philbeck complied with the modified judgment, and the case was closed.  Posts to the Facebook page after July 3, 2020 were made by current local union officials or the union’s authorized staff.

Local Union 651’s protest

            The local union’s protest stated that it “recognizes that its assets and resources were used repeatedly to disparage candidates in the 2021 election, and that such use violates the Election Rules.  We are self-reporting these violations and pledging that we will work with your office in discussing and implementing a remedy that your office believes is appropriate.”  The protest contends that posts to the Facebook page were contributions of “a thing of value ‘where the purpose, object, or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate …’ for International office,” citing Article XI, Section 1(b)(3) of the Rules prohibiting union contributions to a candidate.

            On investigation, the local union supplied screenshots of Facebook posts only, although the lawsuit sought control of other social media accounts as well, and the protest referred more generally to local union “assets and resources.”  Therefore, we examine only posts made to Facebook.

            Fred Zuckerman is the long-time president of Local Union 89, headquartered in Louisville KY.  Local Union 89 is one of the largest local unions in the IBT, with more than 14,000 members.  Local Union 651, in Lexington KY, has between 2,500 and 3,000 members. 

Although Zuckerman and Philbeck were members of the same slate of International officer candidates in 2011, their relationship foundered soon thereafter and, by the time of the 2015-2016 International election, had become antagonistic. 

Our decisions from that election cycle document discrete examples of this deteriorated relationship.  Thus, in Zuckerman, 2015 ESD 4 (June 28, 2015), Zuckerman, then a candidate for IBT General Secretary-Treasurer, filed a protest alleging that Local Union 651 had not established a campaign literature table in its local union hall.  Investigation showed that Zuckerman went to the hall to drop off literature and was told by the only employee on site, the office clerical, that she was unaware that a literature table had been established.  The clerical offered to phone Philbeck to inquire; Zuckerman replied that such a call would be unnecessary, stating further that he would be “filing charges.”  After Zuckerman left, the clerical phoned Philbeck, learned that a table indeed had been established, and then phoned Zuckerman’s assistant at the Local Union 89 hall to state that Zuckerman’s literature was welcome on Local Union 651’s literature table.  Zuckerman returned two days later, pronounced the table he was shown as not in compliance, and proceeded to file the protest.  Our investigation held Local Union 651 was in substantial compliance with the Rules and cautioned Zuckerman to seek to resolve concerns about non-compliance informally before resorting to the protest procedure. 

Similarly, in Zuckerman, 2015 ESD 36 (October 13, 2015), Zuckerman protested that Philbeck interfered with his right as a candidate for International office to campaign in the parking lot of Local Union 651 before and after a union meeting.  The purpose of the union meeting held that day, September 12, 2015, was to nominate candidates for local union office.  Philbeck and his slate were nominated, as was a competing slate.  Philbeck objected to Zuckerman’s presence in the parking lot because of a threat he said Zuckerman had made against him on June 24, 2015, in which Zuckerman was said to have told a Local Union 651 business agent to “tell Mike Philbeck if he keeps telling lies on me I will rip his fucking head off.”  Philbeck attempted through an intermediary to get Zuckerman to leave the parking lot on September 12.  When Zuckerman refused, Philbeck called the police, citing Zuckerman’s previous threat.  We found that the attempt to remove Zuckerman from the parking lot violated the Rules and that Zuckerman’s threatening language did not.

In subsequent years, Zuckerman and his allies criticized actions of Philbeck and his team, eventually campaigning for Philbeck’s opposition in the 2018 Local Union 651 officers election, where Philbeck was defeated.  Philbeck countered this activity by criticizing Zuckerman’s leadership of Local Union 89 and his interference in the affairs of Local Union 651, in particular with respect to Local Union 89 part-timers who Philbeck argued were overcharged on their dues but which Zuckerman refused to refund, as well as a unit of dissatisfied Local Union 89 members in Clarksville IN who petitioned to affiliate with another Teamsters local union because they sought more effective representation.

National contract negotiations for a successor UPS contract commenced in 2017, with Sean O’Brien, then the IBT’s Package division director, as lead negotiator.  In September 2017, General President Hoffa replaced O’Brien on the bargaining team with Denis Taylor, who led the team to a tentative agreement in 2018.[1]  In May 2018, O’Brien declared his candidacy for IBT General President on a slate with Zuckerman as candidate for IBT General Secretary-Treasurer.  When the tentative UPS national agreement was reached in summer 2018, O’Brien and Zuckerman, among many other leaders of Teamster local unions and joint councils, criticized the agreement and urged members to vote no on the ratification vote to be held in early fall 2018.  At the same time, Zuckerman and other leaders in Local Union 89 urged UPS employees who were members of that local union to vote yes on a local agreement, called an “air rider,” that applied to the UPS Worldport, said to be the largest UPS air hub in the world.  Both the national agreement and the Local Union 89 Worldport air rider were overwhelmingly rejected.

            Against the backdrop of the antagonistic relationship between himself and Zuckerman, Philbeck, on October 5, 2018, while he remained principal officer of Local Union 651, posted the following to the Teamsters Local 651 Facebook page:

Teamsters local 651 challenges Sean Obrien [sic] to why he supports Zuckerman who’s [sic] Louisville Air rider was endorsed, yet voted down by the largest margins of any UPS supplements in the US!

We also ask why the employees of the Louisville-air rider were forced to ride shuttles and busses free for hours?  These employees of 89 were promised change and Zuckerman sided with the company.

It’s clear, by the vote in Clarksville in that Zuckerman isn’t representing the 89 membership!  O’Brien[,] do the right thing!  Fight for the members!  Drop the company but more importantly drop Zuckerman!

Mike Philbeck

President 651

            Philbeck made additional posts to the Teamsters Local 651 Facebook page concerning Zuckerman, both before and after his term ended, as follows:

• In November 2018, he criticized Zuckerman for what Philbeck said was an attempt to circumvent the grievance process at the National Master Automobile Transporters (NMATA) Joint Arbitration Panel;
• In January and February 2019, after Philbeck left office, he criticized Zuckerman and spoke in support of the Clarksville IN members who sought to leave Local Union 89 for another Teamsters local union because they were dissatisfied with the representation they were receiving;
• In September 2019, he wrote in support of the effort at Local Union 89 to change the bylaws to require an entirely mail-ballot election of local union officers and eliminate the hybrid mail-ballot/in-person election the local union had used for several years (see our decision in Cummins, 2020 ESD 36 (December 22, 2020), where we rejected a contention that Zuckerman campaigned for delegate at a special membership meeting devoted to voting on the proposed bylaw change).

In each of these posts, Philbeck criticized Zuckerman’s actions with respect to his local union leadership and his treatment of Local Union 89 members.  None of the posts criticized Zuckerman’s candidacy for International office.

Blair’s protest

            Hourly Workers Unite! is a group of Local Union 89 members opposed to Zuckerman’s leadership of that local union.  It operates a private Facebook page by the same title, which describes itself as “Local 89 Teamsters and any other Teamsters who want to be part of a watchdog group to keep an eye” on Local Union 89 and has approximately 1,950 subscribers.  Protestor Blair has been part of the group for a lengthy period, working on an effort he contends will improve union democracy in that local union.  On July 6, 2020, Chris Cummins, who would oppose Zuckerman for the Local Union 89 presidency later in the year, made a lengthy post to the Hourly Workers Unite! Facebook page, thanking Blair for his work to educate members about union democracy and outlining a platform for winning local union office from Zuckerman.

            Mike Watson, president of Local Union 651 since January 2019, saw the post and comments on it when logged into Facebook on July 16 or 17, 2020, using the Kentucky Teamsters of the Bluegrass 651 page, something he was able to do only because of the federal court order that required Philbeck to turn over the page to the local union by July 3, 2020.  Although Hourly Workers Unite! is a private Facebook group, Watson was able to view posts made to it because Philbeck had been admitted to the group through the Kentucky Teamsters of the Bluegrass page when he controlled that page.  Watson commented on Cummins’ post as follows:

Union democracy[.]  [Y]ou have no clue what that means[.]  I’ve been in this union for 42 years[.]  I have been in meetings where I was told to sit down and shut the fuck up.  You guys don’t know what’s come before.  Has Fred [Zuckerman] a stellar past?  No one does in this Game but he is one hell of a negotiator and the shit shows that were shoved down UPS and UPS freight throats would not have happened if O’Brien and Zuckerman were allowed to be on the committee.

Watson’s name did not appear on this post.  Rather, the name of the page he posted from, Kentucky Teamsters of the Bluegrass 651, was the listed author.

            Blair’s protest alleged that Teamsters Local Union 651 used its official Facebook page to “support the OZ slate specifically Sean O’Brien and Fred Zuckerman.”[2]  The protest continued as follows:

Teamsters Local 651 used their power, influence and members resources to give an unfair advantage to the OZ slate specifically Sean O’Brien and Fred Zuckerman by reaching out to 1950 members of Hourly Workers Unite page using the official 651 page which is property of the members. This post by Local 651 which was seen by many members could sway voters to form an opinion in favor of OZ.

Watson conceded to our investigator that he made the post to the Hourly Workers Unite! Facebook page from the official Facebook page of Local Union 651.  He claimed that he made the post “on his own,” not on behalf of the local union, without realizing it was posted as an official post of Local Union 651.  He stated that if he had realized it, he would have simply made the same post under his own name.[3]  

Watson also told our investigator that his post was not meant to endorse the O'Brien-Zuckerman 2021 slate in the International officers election but rather was meant as an endorsement of their skills as negotiators. He pointed out that his post did not mention the election or encourage anyone to “vote for” O’Brien or Zuckerman.  

Analysis

            Local Union 651’s protest alleged that Philbeck used the official local union Facebook page to attack a candidate for International office, Zuckerman, while Blair’s protest alleged that Watson committed the same offense using the same page – once he had control of it – in support of Zuckerman and O’Brien.

            Article VII, Section 12(c) bars use of union assets to assist in campaigning.  Section 8 of the same article prohibits use of union publications to support or attack the candidacy of any person.

In evaluating protests alleging violations of these provisions, we examine the tone, timing, and content of the publications.  It is well-established that elected union officials are entitled to use union publications to express their views and to have their union activities reported in those publications.  They are not ordinarily required to give space therein to the expression of contrary views.  Camarata v. Teamsters, 102 LRRM 3053, 3060 (D.D.C. 1979).  The decision in Saavedra, P485 (March 5, 1996), illustrates this point.  There, a union-funded letter to members criticizing the election protests of previous incumbents and labeling them as a “group of malcontents” who don't “care about the will of the membership or how much it will cost you in time and money...” was found not to violate the Rules, because the issue addressed was of legitimate concern, and the criticism was not of the individuals as candidates.  As the Election Officer held in Vandak, P362 (February 22, 1996), when articles in union-financed publications cover issues of legitimate concern to the membership, the fact that the articles contain “criticism of a candidate, in and of itself, does not rise to the level of campaigning.”  Quoting Blake, P245 (December 18, 1995), aff’d, 96 EAM 54.

In Pope, 2000 ESD 4 (August 1, 2000), aff’d, 00 EAM 3 (August 29, 2000), Election Administrator Wertheimer held that attacks on Tom Leedham published in union publications over Leedham’s refusal to extend a picket line into the local unions of his joint council did not violate the LMRDA or the Rules, even though Leedham was at the time a candidate for IBT General President.  The article that came “closest … to violations” of the statute and the Rules, according to the Election Administrator, was one published after the contract dispute had concluded by Jon Rabine, then-principal officer of a sister joint council, which placed Leedham in a “Hall of Shame” for refusing the picket line extension.  According to Rabine:

Refusal to support a fellow Teamster Local's legal picket line demonstrates weakness in a time of need. And, in this case, the request for support was for the most legitimate of all reasons -- to protect the jobs of fellow Teamsters. The net effect of that refusal was to unnecessarily delay settlement of the dispute, thereby causing harm to the involved striking Teamsters by providing hope to the employer that the Teamsters were not united in their support of the Local 104 membership. And for that, if not for anything else, Tom -- shame on you!

The rhetoric, though heated, did not cross the line to impermissible campaigning, the Election Administrator held, because the criticism was directed to Leedham’s performance in office.  In this regard, Pope followed the dictates of Jacob, P71 (September 7, 1995), which rejected the contention that a publication accusing then-General President Carey of a “reign of terror” by eliminating area conferences, bringing “waste and corruption” to IBT headquarters, and other alleged wrongdoing violated the Rules.  Election Officer Quindel held that --

as the incumbent general president, Mr. Carey is subject not only to favorable exposure of his activities as a union leader, but must also bear criticism generated by virtue of his leadership. ... Giving voice to views opposing the current leadership on matters of concern to union members serves the purpose of promoting democracy.  The protested articles and columns, however opinionated, were printed well in advance of the International delegate and officer elections.  The articles criticize then current significant policy decisions by the International Union leadership concerning the union’s internal structure and finances. … Just as Mr. Carey may conduct union business without having it labeled campaigning, local union publications may criticize those policies without having it labeled as campaigning. 

Jacob, citing Ruscigno, P65 (September 21, 1995), aff’d sub nom. Sullivan, 95 EAM 7.

With respect to Philbeck’s posts before and after his term of office ended, he criticized Zuckerman for decisions Zuckerman made as president of Local Union 89.  Thus, he attacked Zuckerman for recommending that Local Union 89 members ratify the Worldport Air rider that they subsequently rejected overwhelmingly.  Philbeck further denounced Zuckerman for his action at the NMATA arbitration panel circumstance, for his handling of the Clarksville members, for the part-timers’ dues overcharge, and for opposing changes to the Local Union 89 bylaws on election procedures.  Only with respect to the Air rider post did Philbeck allude to Zuckerman’s candidacy for International office – and then indirectly – when he suggested that Sean O’Brien “drop Zuckerman.”  The Jacob and Pope holdings lead us to conclude that Philbeck’s criticism of Zuckerman for actions taken in the performance of his duties, though opinionated, did not violate the LMRDA or the Rules because the criticism centered on matters of legitimate concern to the membership and, further, were published well in advance – three years – of balloting in the International officers election.

            We reach the same conclusion concerning Watson’s July 2020 post that responded to Cummins’ criticism of Zuckerman.  Like Philbeck with respect to the Air rider matter, Watson brought O’Brien into the discussion, complimenting him and Zuckerman on their skills.  By doing so, he alluded obliquely to the candidacies of both for International office.  Nonetheless, Watson’s post did not explicitly refer to the International officers election, was made far in advance of balloting, and focused on a matter of legitimate concern to the membership, that being the skill of Zuckerman and O’Brien as contract negotiators.

            Based on this analysis, we find no violations and DENY both protests. 

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.  Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i).  All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor.  Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Barbara Jones

Election Appeals Master

IBTappealsmaster@bracewell.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, all within the time prescribed above.  Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision.  A copy of the protest must accompany the request for hearing.

                                                                  Richard W. Mark

                                                                  Election Supervisor

cc:        Barbara Jones

            2020 ESD 38

DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

braymond@teamster.org

Edward Gleason

egleason@gleasonlawdc.com

Patrick Szymanski

szymanskip@me.com

Will Bloom

wbloom@dsgchicago.com

Tom Geoghegan

tgeoghegan@dsgchicago.com

Rob Colone

rmcolone@hotmail.com

Barbara Harvey

blmharvey@sbcglobal.net

Kevin Moore

Mooregp2021@gmail.com

F.C. “Chris” Silvera

fitzverity@aol.com

Fred Zuckerman

fredzuckerman@aol.com

Ken Paff

Teamsters for a Democratic Union

ken@tdu.org

Mike Philbeck

mikephilbeck@hotmail.com

Teamsters Local Union 651

Mike Watson

mwatson@teamsters651.org

Stephanie Buchenroth

sbuchenroth@teamsters651.org

Anthony Blair

absb@twc.com

Teamsters Local Union 89

Teamsters89@aol.com

Joe Childers

jchilders@ibtvote.org

WC Broberg

OES Regional Director

wcbroberg@aol.com

Jeffrey Ellison

EllisonEsq@gmail.com