Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: BRIAN SIMPSON,                         )           Protest Decision 2016 ESD 102

                                                                        )           Issued: February 7, 2016

            Protestor.                                           )           OES Case No. P-106-011516-MW   

____________________________________)

            Brian Simpson, member of Local Union 89, 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 Fred Zuckerman intimidated the protestor with a private Facebook message, in violation of the Rules.

            Election Supervisor representative Joe Childers investigated this protest.

Findings of Fact and Analysis

Simpson is a delegate candidate in Local Union 89’s delegates and alternate delegates election on the Hourly Workers Unite to Lower Dues! slate.  Zuckerman is principal officer of Local Union 89, a delegate candidate on the Zuckerman/Bolton slate, and a candidate for IBT General President.

On January 14, 2016, Zuckerman sent a private Facebook message to Simpson, stating the following: “The lies you guys are telling are [sic] just amaze me.  I will expose everyone for their lies.  I thought better of you though. Piercy doesn’t make anywhere near $80,000 and you have nothing to corroborate that.  Once a liar, always a liar.”  Simpson claimed that this message was a “private threat” and “intimidation” that violated the Rules.

Simpson told our investigator he has known and been friendly with Zuckerman for many years, starting when Simpson ran for public office with Local Union 89’s backing.  He said he and Zuckerman have teased each other on Facebook about professional football (Simpson follows the Cowboys; Zuckerman, the Packers).  Simpson said the January 14 private message from Zuckerman apparently was prompted by campaign rhetoric from Hourly Workers Unite attacking Local Union 89’s employment of a new communications director.  Simpson said the campaign allegation that the new director made $80,000 was because the previous director had been paid that amount.

            Zuckerman told our investigator that he sent the private Facebook message to Simpson, with whom he had been friendly for many years, to give notice that the Hourly Workers Unite slate should refrain from making false statements during the campaign.

Article VII, Section 12(a) of the Rules guarantees to members the “right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.”  Article VII, Section 12(g) bars “[r]etaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules.”  These rights are fundamental to the conduct of a fair and open election.  A fair and open election is the “central purpose” of the Consent Decree.  U.S. v. IBT, 948 F.2d 98 (2nd Cir. 1991).  Acts of coercion, interference or harassment of members in the exercise of these are forbidden.  Richards (after remand), 2000 EAD 27 (September 27, 2000).

The conduct found here is neither a threat nor intimidation.  Warning an opponent to tell the truth in campaign rhetoric or be exposed as a liar, unaccompanied by anything more, simply does not constitute conduct the Rules regulate.  To hold otherwise would stifle debate and the free exchange of ideas that are at the heart of the democratic process.

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, 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

            2016 ESD 102

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