Protest Decisions

            Michael-David Sasson, member of Local Union 2010, 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 Local Union 2010 transmitted a campaign email to its email list without the disclaimer required by the Rules.

            Election Supervisor representative Chris Mrak investigated this protest. 

Findings of Fact

Article VII, Section 7(d) requires the union to “honor reasonable requests by candidates for distribution of literature through electronic mail.”  As we documented in Sasson, 2011 ESD 206 (April 12, 2011), and Sasson, 2011 ESD 319 (September 8, 2011), Local Union 2010 maintains a comprehensive email list of its membership that is well-suited for distributing campaign messages from candidates.  As permitted by our Advisory,[1] Local Union 2010 adopted a procedure by which it performs the email distribution of campaign messages itself rather than contracting the task to a vendor.  The procedure provided the following:

Local 2010 has made arrangements to handle internally all requests for emailing delegate campaign literature to members at the candidates’ expense.  Candidates seeking to email campaign literature to members should provide at least 5 days written notice to Anytra Henderson, c/o Barry Alexander at Local 2010 IT Support Staff … and include the following information:

1.      The name of the candidate or campaign requesting the email broadcast;

2.      The date on which the email broadcast is to be sent;

3.      Whether the email is to be broadcast to all members or some portion thereof.

Each piece of campaign literature must be submitted in final form and as an attachment to an email sent to the above-referenced email address.  Each piece of distributed email shall include the statement: ‘This email is distributed by [name of campaign], which is solely responsible for its content.  The message has not been reviewed or endorsed by the IBT or Local 2010.’

As found in Sasson, supra, the local union demonstrated during the delegate election period that it did not require five days to process candidate requests for email distribution of campaign messages, instead distributing the messages generally within one day of the request.

            In the present matter, Amatullah Alaji-Sabrie, an executive board member of Local Union 2010 employed by the University of California at the Berkeley campus, contacted our regional director, Christine Mrak, at about 6:30 p.m. on October 12, stating that she “would like to send out an election message in support of the Hoffa slate.  Please see the text below and let me know if it is approved to send out to Local 2010’s jurisdiction in support of the Hoffa-Hall slate or any needed changes.”  The draft campaign message did not contain a disclaimer.  Mrak replied at about 7 p.m. the same date that the OES does not regulate the content of campaign messages but that any email message to be sent to members using the local union’s email system must include a disclaimer that specifies that the message is not from the union, that the union does not endorse candidates, and that the message has not been reviewed or approved by the union.  Alaji-Sabrie acknowledged receipt of Mrak’s response the same date, October 12, at about 7:15 p.m. 

            At about the same time on October 12 that Alaji-Sabrie sought Mrak’s advice about the disclaimer, Stephanie Dorton, another executive board member of Local Union 2010 employed at UC-Berkeley, sent Alaji-Sabrie’s first draft to Barry Alexander, the local union’s part-time IT staff member.  The draft Dorton sent Alexander did not include the disclaimer. 

            At about 1:30 a.m. on October 13, Alaji-Sabrie emailed the final version of the campaign email to two staff members of the local union, including IT staff member Alexander.  Alaji-Sabrie’s email commenced with instructions to the local union staff as to when the campaign email should be transmitted to the membership.  The final copy, printed in the body of Alaji-Sabrie’s email to the local union staff, began with the following disclaimer:

The following is a message from Local 2010 members supporting the Hoffa-Hall Slate for the IBT elections.  As required by the IBT election rules it is not an official endorsement by Local 2010.

When Alexander began working on the campaign emails during the day on October 14, Dorton’s version, without disclaimer, was in line for sending ahead of Alaji-Sabrie’s corrected draft of the same email.  Alexander apparently did not recognize that the two campaign emails he received were different versions of the same content, one without the required disclaimer and one with it.  Further, he apparently did not review the Dorton version, or if he did, did not recognize that the required disclaimer was not included at the start of the text to be transmitted. 

Failing his responsibilities, Alexander transmitted Dorton’s email, without disclaimer, to the entire membership on the morning of October 13.[2]  He then set to the task of transmitting Alaji-Sabrie’s corrected version of the campaign email to the membership.  In doing so, he began transmitting Alaji-Sabrie’s entire email, including the instructions Alaji-Sabrie had included to local union staff, himself included, about the timing of the broadcast.  This error was brought to Alexander’s attention and he halted the broadcast transmission after approximately 100 such emails (by his estimate) had been sent.

The next morning, October 14, Alexander transmitted to the membership Alaji-Sabrie’s corrected version of the campaign email, with disclaimer at the top of the text.

The Dorton version, without disclaimer, listed the sender as cuecast@cueunion.org, the email address the local union uses for broadcasting information to its membership.  The Dorton version also carried the local union’s email banner, consisting of a stylized version of the IBT’s horses-and-wheels logo over which lay a streamer that read “CUE Teamsters Local 2010.”  The banner also included the local union’s address, phone and fax numbers.  The subject line of the Dorton version read “Vote For Hoffa-Hall Slate Campaign Message.”  The text commenced with “To Member …” and used a mail/merge function to insert each recipient member’s last name followed by first name and middle initial.  The text continued with a one-sentence paragraph: “Vote the James P. Hoffa and Ken Hall Slate.”  The next paragraph continued as follows, in part:

Weare your campus colleagues and fellow University of California Clerical and Allied Service Workers.  We have taken out this ad to urge you to vote for James P. Hoffa and his slate as Teamster President in the up coming[3] election.

The text listed Hoffa’s education and experience as a labor lawyer as reason to support him and his slate in the election.  The text concluded as follows:

Whenyour ballot arrives, mark the Hoffa Hall slate and immediately return it in the pre-stamped address.

Ad paid for by the Local 2010 Hoffa-Hall Election Committee.

The names of five persons were listed beneath this text, together with the UC campuses where they are employed.

            The campaign email that included the required disclaimer was sent to the membership the next morning, October 14.[4]  Except for the disclaimer and the time and date sent, it was identical to the Dorton version sent the previous morning, including the use of the local union email address as the sender, the email subject line, and the use of the local union banner.

Analysis

As we said in Sasson, 2011 ESD 321 (September 8, 2011), “[d]istribution of campaign messages through local union processes serves the important function of providing the membership with information about the pending election, the candidates competing in it, and their positions on issues important to the membership.” 

In honoring requests for email distribution of campaign messages, the union has the obligation to insure that recipients are not misled into concluding that the message contained in the email is an endorsement by the union.  Accordingly, we require that the text of the message commence with the disclaimer, which serves the important purpose of advising the reader that the message that follows is not that of the union and that the union is not permitted to endorse a candidate in the pending election.  That disclaimer is especially important here where the email sender is listed as the local union, and the local union’s email banner, street address and phone number appears at the top of the text.  Without the disclaimer, the reader may be misled to the conclusion that his/her local union has endorsed a candidate and is notifying its members of the endorsement.  This cannot be permitted.

We note that the second and final paragraphs of the text contain sentences that may dispel the reader’s conclusion that the endorsement is from the union.  Thus, the second sentence of the second paragraph states that “[w]e have taken out this ad to urge you to vote …”  Similarly, the final paragraph states, “[a]d paid for by the Local 2010 Hoffa-Hall Election Committee.”  These statements, however, cannot substitute for the required disclaimer because the recipient would have to read well into the message to reach those sentences and then would have to weigh that information against the impression conveyed by the use of the local union banner and the local union email address. 

In this way, the present case is easily distinguished from Hoffa-Hall 2011, 2011 ESD 338 (October 4, 2011), and Leedham Slate, 2006 ESD 357 (September 26, 2006).  In both of those prior cases, the slate sent a broadcast email to the IBT’s email list without the required disclaimer.  However, the sender was listed as the candidate, and the IBT was not identified in any way as being associated with the transmission of the email campaign message.  For those reasons, we held that, “despite the lack of the required disclaimer, the appearance and content of the communication eliminates the possibility that recipients would be misled into believing that the email was from” the union or a union official acting as such.

The appearance and content of the Dorton version of the email sent October 13 is, by contrast, misleading in this important respect because it gives the appearance that the message is from the union and is an endorsement by the union.  This must be corrected.

This case is the third instance in which Local Union 2010 has violated the Rules with respect to use of its email list to communicate campaign messages to its membership.  In Sasson, 2011 ESD 206 (April 12, 2011), we found that the local union sent messages without the required disclaimer.  In Sasson, 2011 ESD 321 (September 8, 2011), we found that the local union unjustifiably delayed the transmission of a campaign message.  Here, again, the local union failed to include the required disclaimer.

This record demonstrates a lack of regard by the local union for insuring that its members are not misled by the campaign email messages it transmits.  The record also demonstrates that Alexander, the IT staff member, either does not understand the requirements of this job, or cannot be bothered to exercise sufficient care to do the job properly.  This demonstrated level of incompetence does not serve the local union or its membership, especially where the rules with respect to email distribution of campaign messages are as simple as these: 1) make sure the message includes the disclaimer at the top of the email, and 2) transmit the message to the local union’s email list timely.

Dorton, a member of the executive board of the local union, directed Alexander to transmit the message that lacked a disclaimer.  Although she gave the message to Alexander in her political role as an advocate for a candidate, she too had a responsibility as a local union official to insure that the disclaimer was included at the top of the body of the email text.  She failed her obligation to the local union and its membership.

In contrast to the derelict conduct of Alexander and Dorton, we find that Alaji-Sabrie fulfilled her obligations to the local union properly, seeking guidance from OES to insure that her proposed email campaign message met the Rules’ requirements. 

Accordingly, we GRANT the protest.

Remedy

When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.” Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.

We order Local Union 2010 to cease and desist from emailing campaign messages to its membership email list that do not have the required disclaimer at the top of the body of the message.

            We order Local Union 2010 to email the notice attached to this decision to all members for whom it has email addresses within one day of the date this decision is issued.  We direct the local union to embed the notice in the body of the email rather than transmit it as an attachment.  We further direct that the email subject line read “A message from the IBT Election Supervisor.”  Failure of the local union to comply will result in a fine of $500 for each day that follows the date by which compliance is required.

            We further order Local Union 2010 to grant to Sandy Pope and to the Gegare-Sheard slate the distribution by the local union of one campaign mail each at no charge.  Such transmission must include the required disclaimer and must be completed within one day of the date the request is made for such distribution.  Failure of the local union to comply will result in a fine of $500 for each day that follows the date by which compliance is required.

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.