Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: KIMBERLY SCHULTZ,               )           Protest Decision 2016 ESD 224

                                                                        )           Issued: May 26, 2016

            Protestor.                                           )           OES Case No. P-286-051416-SO     

____________________________________)                      

Kimberly Schultz, member of Local Union 2011, 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 William Walsh and Local Union 2011 violated the Rules by promoting the candidacy of William Walsh for delegate on the local union’s Facebook page.

In Schultz, 2016 ESD 156 (April 8, 2016), we found that delegate candidate William Walsh violated the Rules by promoting his slate’s campaign on a Facebook page that had been created by an IBT organizer for Local Union 2011 and that was still titled “IBT Teamsters Local 2011” at the time of the campaign posting, even though Walsh had taken the page over for personal use.  However, we held that the violation did not affect the results of the election.  Accordingly, we denied the protest.

Schultz appealed.  The Election Appeals Master affirmed our finding that the conduct violated the Rules but reversed our ultimate holding and concluded that the violation may have affected the outcome of the election.  Accordingly, the Election Appeals Master ordered that the Local Union 2011 delegates and alternate delegates election be rerun.  Schultz, 16 EAM 17 (April 25, 2016).

To implement the decision of the Election Appeals Master, we ordered the following in Schultz, 2016 ESD 184 (April 29, 2016):

1. The previous election results in Local Union 2011 delegates and alternate delegates election are voided.
2. Ballots for the rerun election will be mailed Tuesday, May 3, 2016 and counted Friday, May 27, 2016.
3. The notice of election to be included in ballot packages will indicate that it is a rerun election.  It further will state: “The results of the LU 2011 delegate election were voided as the result of an election protest.  This is an OES supervised rerun of the delegate election.”
4. Local Union 2011 has an email list comprising a substantial number of its members, and it uses that list to transmit messages to the membership.  Local Union 2011 is ordered to transmit the notice attached to this decision to the email addresses for its members no later than Monday, May 2, 2016.  This notice distribution is strictly remedial in nature and is intended to correct the Rules violation previously found, educate the members as to the requirements of the Rules, and inform them that the election will be rerun and the previous election results voided.  The subject line of the email shall read: “Rerun of Local Union 2011 delegates election.”
5. Local Union 2011 maintains a website and a Facebook page.  Local Union 2011 is ordered to post the notice attached to this decision on its website and Facebook page no later than Monday, May 2, 2016. The posting shall remain on the website through and including May 27, 2016.
6. William Walsh is ordered to cease and desist from further Rules violations.

The current protest alleged that Walsh and Local Union 2011 violated the Rules when Walsh, an administrator of the local union’s Facebook page, posted a video of himself on that page.  The protest alleged specifically that the video of Walsh, posted at the top of the page when the page is viewed on a computer screen and as the first item when the page is viewed on a mobile device, promoted Walsh’s candidacy by featuring him speaking to the camera and using “Teamsters” and “strong.”  Walsh is a delegate candidate on the Teamsters Strong slate that is competing in Local Union 2011’s delegates and alternate delegates election. 

Investigation showed that the video of Walsh was made in 2011 as part of the Local Union 2011 organizing membership drive.  The video was first placed on the local union’s Facebook page on May 12, 2012 by Walsh, who is an administrator for the Facebook page.  Walsh chose to “share” the video again on February 11 and February 17, 2016, one week and two weeks after the ballots were mailed in the original Local Union 2011 delegate election.  He “shared” the same video again on May 7 and May 8, 2016, the fourth and fifth days after the ballots were mailed in the re-run of the delegates election.  The Walsh video is the only video available on the Facebook page.  When accessing the local union’s Facebook page from a mobile device, Walsh’s face appears on the timeline (and the video plays with a “tap”).  The video  is displayed ahead of the remedial notices ordered to be posted pursuant to our decision in Schultz, 2016 ESD 184 (April 29, 2016).  Sharing the video on the Local Union 2011 Facebook page had two effects.  First, it brought the video to the top-most position on the Facebook page’s timeline.  Second and more important, the sharing transmitted the video to all 740 Facebook users who previously had “liked” the Facebook page of Local Union 2011.

The video is 21 seconds long and consists entirely of Walsh speaking to the camera.  He identifies himself by name, work location, and shift.  He states, “I’m voting for the Teamsters because my father always was a union member and I saw how it worked for us, coming up, and the Teamsters are going to be strong for us and everybody should join.”

The video was created for the Teamsters organizing drive of Florida Department of Corrections employees in 2011.  However, that fact and its previous use were not described in the sharings of the video in February and May, 2016.  Instead, only the video appears, and it features Walsh, a candidate for delegate, urging viewers to vote for Teamsters because they are going to be strong.

We previously found that Walsh’s conduct posting campaign advocacy on a Facebook page titled “IBT Teamsters Local 2011” violated the Rules because it conveyed the false impression that Local Union 2011 endorsed Walsh’s candidacy.  After the Election Appeals Master found that the conduct may have affected the outcome of the election and ordered a rerun election as remedy, we ordered Walsh to cease and desist from further Rules violations.  Notice of that violation was disseminated to the membership by the local union’s email list, website, and Facebook page. 

Indeed, Walsh and Les Cantrell, a delegate candidate on Walsh’s slate, together posted the remedial notice explaining the reason for the rerun election on the local union’s Facebook page.  Despite this action, Walsh claimed to our investigator that he was unaware he had been ordered to cease and desist from further Rules violations.

Our investigator asked Walsh why, five years after the video of Walsh had been created and posted, Walsh chose to share that video on the local union’s Facebook page twice in February 2016 and twice more (on consecutive days) in May 2016, all four sharings coming a few days after ballots were mailed and before they were counted in the delegates election.  Walsh answered that the video encourages FDOC employees to join the union, and the local union needs members.  He denied that the pendency of the delegates election played any role in his decision to share the video.

We reject Walsh’s statement as false.  We find that Walsh knew he was ordered to cease and desist from further Rules violations, that our decisions and that of the Election Appeals Master informed him of such, that the remedial notice described Walsh’s violation, and further that he was contacted by counsel for the local union, who instructed him as to his responsibilities with respect to postings on Facebook.  Accordingly, we find that Walsh falsely denied to our investigator that he was unaware he had been ordered to cease and desist from further Rules violations.

We further find that Walsh falsely asserted that the four sharings of the video of himself on the local union’s Facebook page were motivated solely by the desire to increase membership in the local union.  Walsh chose to share, and make his image prominent on the local union Facebook page.  We conclude that Walsh’s principal motivations in sharing this five-year-old video multiple times shortly after ballots were mailed in the local union’s delegates elections were to maintain the video in a prominent position on the local union’s Facebook page and to put his face and words on the newsfeeds of Facebook users who had “liked” that page at a time when members were receiving their ballots – the most advantageous time to further his own candidacy.  We find that Walsh’s denial that these were his principal motivations was knowingly false.

Finally, we find that Walsh’s actions in sharing the video of himself twice on Local Union 2011’s Facebook page constituted misuse of a union publication to advance his candidacy.  Article VII, Section 8(a) declares that “[n]o publication or communication financed, sponsored or used, directly or indirectly, by a Union (including any social media site) may be used to support or attack any candidate or the candidacy of any person.”  The provision expressly directs that a union publication shall not –

 (4)       print features and accompanying photographs about insignificant or unnewsworthy events in which the accomplishments or qualities of any candidate are heralded; [or]

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(6)        carry a substantial number of articles and/or multiple pictures featuring a particular candidate, unless all candidates for the same position are given equal treatment, equal space, and equal prominence.

The “tone, timing and content” test is used to determine whether a union publication is used impermissibly for 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); Grone, 2015 ESD 60 (December 17, 2015).  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 the publication of “too many articles regarding a candidate for union office,” even if newsworthy, “may indicate that union officials have used the publication as a tool of the candidate’s campaign.”  A candidate’s use of a union publication as an instrument of his campaign can be demonstrated by the fact that during the same period that references to and photographs of the candidate appeared, no mention was made of the candidate’s opponent.  Judge Conboy warned that “[w]here an article does not contain legitimate reporting of newsworthy activities, but instead rises to the level of union financed campaign literature by supporting or promoting a candidate for union office, the article violates the Election Rules and the LMRDA.”

Timing of the publication also is an important consideration in evaluating whether the publication has been misused for a campaign purpose.  Articles published “remote in time” to the election may not violate the Rules or the statute.  However, “articles published close to the time of the election are often found to constitute improper campaigning.”

Evaluating Walsh’s Facebook sharing of the video of himself against this legal framework, we find that the video, recorded five years earlier, was not newsworthy as it did not concern or relate to a matter of significant present concern to the membership.  Second, we find that the multiple sharings of the video constituted “a substantial number of articles and/or multiple pictures featuring a particular candidate,” under circumstances where other candidates were not given equal treatment, space or prominence.  Finally, the timing of the multiple sharings of an unnewsworthy video, coming in the early days of balloting in two delegate elections, demonstrates the impermissible campaign purpose or effect of the sharing.

            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.  “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.”  Hailstone & Martinez, 10 EAM 7 (September 14, 2010).

We conclude that Walsh’s conduct in violation of the cease and desist order requires his disqualification from candidacy in Local Union 2011’s election.  His conduct in violation of the Rules in the previous election was the sole reason the election results there were voided and a rerun election ordered.  His conduct in the current election in failing or refusing to abide by the cease and desist order flouts the Rules and is unacceptable.  Accordingly, we find he has forfeited his right to be a candidate for delegate by his conduct.

A second, independent basis for our disqualification of him are the conspicuously false statements he made to our investigator.  Such false statements constituted a failure to cooperate with the Election Supervisor, which is a violation of the Rules.  Article XIII, Section 2(g) provides the following:

The Election Supervisor shall have the authority to obtain, or to have the International Union obtain and provide, information necessary to assist in resolving any protest. The Union (including subordinate entities) and all members, candidates, slates and independent committees are required to cooperate with the Election Supervisor. Failure to cooperate with the Election Supervisor or Election Appeals Master (including making false statements to the Election Supervisor or Election Appeals Master) may result in referral of the matter to the Government for appropriate action under law (including the Final Order), or such other remedy as the Election Supervisor or the Election Appeals Master deems appropriate.

Precedent supports disqualification as a remedy for witnesses who make material false statements to the Election Supervisor.  Richards, 2001 EAD 328 (April 26, 2001), aff’d in part, rev’d in part, 01 EAM 63(supp) (May 21, 2001).

            The final basis for Walsh’s disqualification is that he has once again caused misuse of a Local Union 2011 publication, its Facebook page, to support his candidacy.

            We order Local Union 2011 to post the notice attached to this decision on all worksite bulletin boards, its website, and its Facebook page no later than June 3, 2016 and provide proof to OES by declaration that it has complied no later than June 5, 2016.

            The tally of ballots in Local Union 2011’s rerun delegates and alternate delegates will proceed as scheduled on Friday, May 27, 2016, with votes recorded for all candidates who receive them.  The top five candidates for delegate who have not been disqualified from candidacy shall be declared elected.  Because of our order disqualifying Walsh from candidacy, in no circumstance shall he be declared elected.

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 224

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC 20001

braymond@teamster.org

David J. Hoffa

1701 K Street NW, Ste 350

Washington DC 20036

hoffadav@hotmail.com

Ken Paff

Teamsters for a Democratic Union

P.O. Box 10128

Detroit, MI 48210-0128

ken@tdu.org

Barbara Harvey

1394 E. Jefferson Avenue

Detroit, MI 48207

blmharvey@sbcglobal.net

Teamsters United

315 Flatbush Avenue, #501

Brooklyn, NY 11217

info@teamstersunited.org

Louie Nikolaidis

350 West 31^st Street, Suite 40

New York, NY 10001

lnikolaidis@lcnlaw.com

Julian Gonzalez

350 West 31^st Street, Suite 40

New York, NY 10001

jgonzalez@lcnlaw.com

David O’Brien Suetholz

515 Park Avenue

Louisville, KY 45202

dave@unionsidelawyers.com

Fred Zuckerman

P.O. Box 9493

Louisville, KY 40209

fredzuckerman@aol.com

Kimberly Schultz

18360 NE 22 Avenue

N. Miami Beach, FL 33160

schultzlegal@gmail.com

Les Cantrell

Lcantrell2011@aol.com

Ken Wood

ibtlocal2011@aol.com

Bill Walsh

billwalshccdi@yahoo.com

Holly Van Horsten

Kathleen M. Phillips

Phillips, Richard & Rind, P.A.

9360 SW 72 Street, Suite 283

Miami, FL 33173

kphillips@phillipsrichard.com

hvanhorsten@phillipsrichard.com

Dolores Hall

1000 Belmont Pl

Metairie, LA 70001

dhall@ibtvote.org

Jeffrey Ellison

214 S. Main Street, Suite 212

Ann Arbor, MI 48104

EllisonEsq@aol.com