Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: RICHARD GALVAN,                   )           Protest Decision 2016 ESD 169

                                                                        )           Issued: April 13, 2016

            Protestor.                                           )           OES Case No. P-184-022316-FW

____________________________________)

            Richard Galvan, member of Local Union 396 and candidate for delegate and for International office, 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 Local Union 396 misused union funds to promote the Herrera slate in the local union’s delegates and alternate delegates election, in violation of the Rules.

            Election Supervisor representative Michael Miller investigated this protest.

Findings of Fact and Analysis

            Local Union 396’s election plan provided for the election of twelve delegates and fourteen alternate delegates to the IBT convention.  The January 31, 2016 nominations meeting resulted in a contested election between two full slates and no unaffiliated candidates.  Protestor Galvan led the Galvan Local 396 Teamsters United slate; local union principal officer Ron Herrera led the Ron Herrera Local 396 slate. 

            Local Union 396 publishes a photo calendar annually for distribution to its members.  The calendar consists of twenty-four 8½” x 11” pages, printed on both sides.  The calendar is designed to hang on a wall, open at the fold, so that the photo appears in the upper portion and the calendar for the given month in the lower.  Local union officials approached OES in December 2015 requesting pre-publication review of the proposed calendar for compliance with Article VII, Section 8 of the Rules, which prohibits use of union publications to support or attack any candidate. 

            We examined the several proposals for photos and layout of the calendar that the local union made.  In the course of this review, we rejected a proposal that each month include a watermark that bore the name of Ron Herrera, principal officer of the local union.  We also rejected a number of photos that depicted Herrera or Jay Phillips, president of the local union and candidate for delegate.  After multiple rounds of proofs and proposals, we gave prepublication approval of the calendar, noting that such approval did not bar the filing of a protest concerning it or indicate a particular outcome if such a protest were filed.

            The back and forth of the review process took several weeks to complete.  We granted prepublication approval by email on January 28, 2016.  The local union engaged a printer/mail house to produce the calendar on February 8; the calendar was mailed to members on February 16. 

            The calendar received by members consisted of the following:

• A cover that states “Teamsters Local 396 – 2016” and displays the Teamsters horses-and-wheel logo over an American flag.  The cover does not include the names of any union officials.
• A January photo that depicts eight rank-and-file members holding “Boycott” and “Boicot” picket signs.  No caption accompanies the photo, and no officer is depicted in the photo.
• A February photo depicting some 27 rank-and-file members in a posed shot in front of a Teamsters portable bandstand.  No caption accompanies the photo, and no officer is depicted in the photo.
• A March photo of 11 rank-and-file members of the local union’s women’s caucus.  No caption; no officers.
• An April photo of eight members in a posed shot in the shade of a tree, seven of whom are rank-and-file members and the eighth is local union president Phillips.  No caption accompanies the photo, and Phillips is partially obscured by two members and is wearing sunglasses.
• A May photo seven members at a table where local union t-shirts are to be distributed.  No caption; no officers.
• A June photo which is a collage of four photos of initiates being sworn into membership at a local union meeting.  No caption; no officers.
• A July photo showing some twelve members marching in a parade carrying “Stop the War on Workers” signs.  No caption; no officers.
• An August photo showing approximately 31Teamsters and their family members in the stands at an athletic event.  No caption.  Herrera and Phillips can be seen in the third row of seating.
• A September photo, a broad shot of upwards of 50 members sitting in the audience at a local union membership meeting looking toward the speaker, who is out of view.  No caption; no officers.
• An October photo showing three members in Teamsters t-shirts and caps.  No caption; no officers.
• A November photo, a collage of three photos of members at a membership meeting, their attention directed to a speaker who is not in the photo.  No caption; no officers.
• A December photo depicting four Teamsters, a boy, and Santa Claus.  No caption; no officers.
• A page that lists addresses, phone numbers, email addresses, web and Facebook addresses for the local union and health and welfare and pension funds.  No officers are identified in this listing.

            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.

            The protestor does not challenge the tone or content of the calendar, nor is there any basis to do so as it does not identify any officer by name or any references to them, their activities, their candidacies, or the delegates and alternate delegates election.  Although Phillips appears in the calendar twice and Herrera once, they are not depicted in leadership roles nor identified in any way, whether by caption or by the way the photos are posed, as local union officials.

            The protestor argues that the timing of the calendar constitutes the Rules violation.  The calendar was mailed February 16.  Ballots were mailed sixteen days later on March 3.  In Hicks, 06 EAM 22 (March 15, 2006), Election Appeals Master rejected a challenge to a union newsletter that was based solely on timing, holding:

I agree with the Election Supervisor, having examined de novo the newsletter, that the content and tone are entirely benign. The timing of the publication, usually insufficient by itself to sustain a Rules violation, is in this case sufficiently remote to raise any issue under the Rules and the case law. 

Unlike in Hicks, where a newsletter contained the names of local union officials and their reportage on issues of concern to the membership, the calendar at issue here contains no names of officials and no reportage of any kind.  Instead, this union publication promotes pride and solidarity in the union as an organization without promoting any member or candidate or referring in any way to any union election. 

The calendar distribution, usually occurring at the first of the year, was delayed because of the prepublication review process and not because of political calculation on the part of local union leadership.  Supporting this point is that more than two weeks passed between mailing of the calendar and the mailing of ballots; were a political advantage sought by the local union leadership, the mailings would have coincided.

Accordingly, we DENY the 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 169 

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