Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: ANTHONY BLAIR,                       )           Protest Decision 2016 ESD 114

                                                                        )           Issued: February 17, 2016

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

____________________________________)                       & P-120-012416-MW

            We issued our decision on these protests in Blair, 2016 ESD 104 (February 10, 2016).  That decision did not address all the issues the protests raised.  Accordingly, we withdraw that decision and issue this one to replace it.           

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 articles appearing on Local Union 89’s website, one of which has been reprinted in campaign literature of the Zuckerman/Bolton slate, constitute union support for a candidate and therefore violate the Rules.

The first local union website article at issue here, titled “Ken Hall and IBT Sell Out UPS Members By Implementing Air Supplement,” was posted 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. 

The second local union website article, titled “IBT/Ken Hall Secretly Amend IBT Constitution To Force Implementation of UPS Contract,” 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.  It also was first posted in 2014.

A third article from the local union website was reprinted in a 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 article was first posted to the local union website in 2013.

The protests argue that the articles on the union’s website constitute impermissible campaigning by the union against Ken Hall, candidate for reelection as IBT General Secretary Treasurer.  They also contend that a Zuckerman/Bolton campaign claim seeking to link the Hourly Workers Unite slate to Hoffa-Hall 2016 is false and in violation of the Rules.

We first address the publication on Local Union 89’s website of the three articles described above.  Article VII, Section 8(a) of the Rules prohibits use of union-financed publications or communications “to support or attack any candidate or the candidacy of any person.”  The “tone, timing and content” test is used to determine whether such publications engage in impermissible campaigning.  Martin, P10 (August 17, 1995), aff’d, 95 EAM 18 (October 2, 1995); Jacob, P71 (September 7, 1995), aff'd, 95 EAM 19 (October 3, 1995); Ruscigno, P67 (July 19, 1995); Lewis, 2001 EAD 357 (May 9, 2001).  The Election Supervisor must also review “the specific context in which the communication takes place.”  Jacob, supra.

Election Appeals Master Conboy explained in Martin, 95 EAM 18 (October 2, 1995), that an incumbent has “a right and responsibility,” as a union officer, to “advise and report to the membership on issues of general concern” to the membership, and is “entitled to use union publications to express [his] views.” [Citations omitted] “A union publication may report on the regular functions, policies, and activities of an incumbent officer, but may not provide coverage that supports the incumbent’s candidacy for union office.”  In general terms, “newsworthy articles or articles which contain purely factual information are generally permissible.”   

We find that each of the articles the protests complain of were newsworthy and concerned matters of interest to the local union membership at the time they were published.  The first two reported facts concerning the implementation of the master and air supplement UPS contracts, did so at a time more than two years before the International officer election, and did not refer to the election or the candidacy of any person in that election.  The third article reported facts concerning the effort to obtain a lower dues assessment for part-time employees, a matter of concern to membership.  The articles remain on the website presently.  The first two articles are accessible by scrolling the home page to the 51^st and 72^nd articles, respectively.  The third article is accessible by keying in the 81-character url into a web browser.  Given the fairly obscure location of each article on the website, we conclude that the local union is not actively promoting their presence in a time when they are less newsworthy.  Accordingly, we conclude that the articles do not violate Article VII, Section 8(a) of the Rules prohibiting use of union-financed publications to support or attack a candidate.

Turning now to the use by Zuckerman/Bolton of the article concerning part-time dues, the article is drawn from a website that displays a copyright mark.[1]  However, 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, as well as a photograph of Zuckerman that accompanied the 2002 article.

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.

Finally, protestor argues that Zuckerman/Bolton falsely links Hourly Workers Unite to the Hoffa-Hall 2016 slate.  Campaign material of Zuckerman/Bolton the protestor produced to our investigator includes the imperative “Vote No to Hoffa and Hall’s Hourly Workers Unite Slate.”  The Election Supervisor does not regulate the content of campaign material.  Sandford, 2006 ESD 142 (April 3, 2006). 

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 114

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