Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: ANTHONY BLAIR,                       )           Protest Decision 2016 ESD 104

                                                                        )           Issued: February 10, 2016

            Protestor.                                           )           OES Case Nos. P-107-011616-MW  

____________________________________)                       & P-120-012416-MW

            Anthony Blair, member of Local Union 89, filed two pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  Both protests alleged that Fred Zuckerman and his slate in the delegates election used the local union website for campaign purposes. 

            These protests were consolidated for investigation and decision.  Election Supervisor representative Joe Childers investigated them.

Findings of Fact and Analysis

Blair 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.

The protests argue that campaign literature of the Zuckerman/Bolton slate that contains reprinted material from Local Union 89’s website violates the Rules.

Zuckerman/Bolton slate campaign literature includes reprints of articles from the local union website.  One article, titled “Ken Hall and IBT Sell Out UPS Members By Implementing Air Supplement,” was posted to the website in 2014.  It reported that the supplemental agreement between UPS and the IBT that set terms and conditions of employment for Local Union 89 members working at the UPS air hub in Louisville, KY had been implemented even though a large majority of the affected membership had voted against its ratification.  The article attacked Hall and the International Union for implementing the supplement under these circumstances. 

In another campaign flyer, the slate reprinted an article from the local union website titled “IBT/Ken Hall Secretly Amend IBT Constitution To Force Implementation of UPS Contract.”  This article reported on the action the IBT General Executive Board took to interpret a provision of the IBT constitution so as to make ratification of a supplemental agreement unnecessary.

A third article from the local union website was printed in another Zuckerman/Bolton slate flyer.  Under a flyer title of “Hourly Workers Unite Slate: Lies Exposed!!” was a screenshot of an article titled “Local 89 Sends IBT Secretary-Treasurer Ken Hall FOURTH Request for Part-Time Dues Waiver.” 

The protests do not claim that the appearance of the articles on the union’s website constitutes impermissible campaigning by the union against Ken Hall, candidate for reelection as IBT General Secretary Treasurer.  Instead, the protests complain that reprinting of these articles by the Zuckerman/Bolton campaign constitutes impermissible use of union resources to support the campaign.

Although the website displays a copyright mark[1], counsel for Local Union 89 denies that the content on the site is copyrighted or that terms of use require permission from or compensation to the local union.  Instead, he states that the copyright is of the website template, which is owned by UnionActive.

Investigation showed that the Hourly Workers Unite to Lower Dues! slate (the protestor’s slate) has reprinted in its own campaign literature a portion of a 2002 edition of Local Union 89’s newsletter reporting that IBT delegates had approved a dues increase.  The flyer uses the newsletter headline to support its claim that Zuckerman previously favored a dues increase.

In Laszlo, 2011 ESD 87 (January 27, 2011), we held that a candidate’s campaign use of material from a union website did not in that instance violate the Rules, in part because the union did not copyright the material and instead treated it as available for use by anyone without compensation to the union.  Here, although a copyright mark appears on the website’s home page, Local Union 89 treats the website content as available for use by anyone, including candidates, without compensation to the union.  The local union has not given advance written notice to all known candidates of the availability of local union publications, including printed newsletters and websites, for campaign purposes, as the Rules require.  However, we find such notice unnecessary in this instance.  The evidence establishes that the slates competing against each other regarded the publications as freely available for reprint and dissemination even in the absence of specific notice from the union.  All candidates have thus had equal access to the material and have, in fact, used the material in campaigning.

Accordingly, we DENY these 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.  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 104

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