Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: TEAMSTERS UNITED,               )           Protest Decision 2016 ESD 283

                                                                        )           Issued: September 8, 2016

            Protestor.                                           )           OES Case Nos. P-327-072016-NA   

____________________________________)                       & P-343-081016-NA

Teamsters United 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”).  Each protest alleged that a number of local unions failed or refused to produce email lists of their members to the vendor with which Teamsters United contracted to provide it blast campaign email services.

            In Teamsters United, 2016 ESD 282 (August 19, 2016), we granted the portion of Protest No. P-327 Teamsters United filed against Local Union 2010, holding that the local union could not permissibly limit to a specific number the use of its email list for campaign purposes.  We address in this decision the remainder of the local unions that were the subject of these protests.  Election Supervisor representatives Mary Ann Campbell, Joe Childers, Paul Dever, Dolores Hall, Peter Marks, Michael Miller, Deborah Schaaf, and Dan Walsh investigated these protests.

Findings of Fact and Analysis

Article VII, Section 7(d) provides for email distribution of campaign material, viz.

The Union shall honor reasonable requests by candidates for distribution of literature through electronic mail.  Requests for the distribution of literature by electronic mail shall be governed by the same rules applicable to the distribution of literature by mail under this Section.  … Campaign literature distributed through electronic mail shall clearly state that it is campaign literature, the contents of which are not endorsed by the Union.  The manner of distribution of candidate literature by electronic mail shall be subject to such Advisory or further guidelines as may be established by the Election Supervisor for the purposes of facilitating distribution of literature by electronic mail, protecting the confidentiality of electronic mail addresses, and protecting the privacy of electronic mail recipients.

On July 6, 2016, Teamsters United requested that various local unions produce their email lists to the campaign’s email vendor, Mosaic Strategies, for campaign purposes.  The vendor had completed OES Form 36 – Declaration Regarding Use of Member E-Mail List, which certified that any list the vendor received from a local union would be used solely to advance the candidacies of members of the Teamsters United slate and that the list would be used for no other purpose and would not be transferred to any other person or entity for use, copying, or inspection.  Teamsters United enclosed the fully executed Form 36 with the requests it made to the various local unions.  Many local unions complied with Teamsters United’s request.  Protest P-327-072116-NA was filed against Local Unions 19, 117, 210, 320, 700, 727, 743, 781, 804, 853, 922, 1108, 1150, 1932, 2010, 2727, alleging they had failed or refused to produce their lists.

On July 26 and 27, 2016, Teamsters United requested that various additional local unions not included in its initial requests produce their email lists to Mosaic Strategies.  Protest P-343-081006-NA was filed against Local Unions 70, 96, 120, 528, 639, 651, 657, and 767 alleging they had failed or refused to produce their lists.   

            Our Advisory on Rights of Candidates to Distribute Campaign Literature to Members Using IBT International Union and Local Union Email Lists (March 8, 2016) requires the IBT and local unions that possess lists of their members’ email addresses to permit candidates to use those lists for campaign purposes.  Under the Advisory, a “covered list” is a list that consists of “a) email addresses used by the IBT or a local union to communicate with all or a portion of the body’s membership; or b) email addresses obtained because the union asked for them, collected them, or were given them.” 

With the exception of Local Unions 210, 853, and 1150[1], each of the local unions that is the subject of either protest declared in its local union election plan that it possessed one or more email lists and/or had emailed its members in the preceding two years.  Each such list constituted a “covered list” under the Advisory for either of two reasons: the local union possessing it uses the email addresses to communicate with its members, or the union “asked for [the email addresses], collected them, or were given them,” whether by the employer or by individual members.  Accordingly, each local union that is the subject of either protest decided here was required to make its list(s) available to candidates for campaign purposes (Local Unions 210, 853, and 1150, as stated, are excepted from this requirement because evidence showed they did not and do not possess a list subject to the Rules or the Advisory).

            For the local unions that are the subject of Protest No. P-327, filed July 20, 2016, the lists were produced on the dates shown in this table:

Two of the unions, Local Unions 700 and 1108, produced the lists before the protest was filed but because of miscommunication were thought to have failed to respond.  We DENY the protest with respect to these unions.

            Eight of the remaining unions, Local Unions 19, 117, 320, 781, 804, 911, 1932, and the BLET, produced their lists either on the day the protest was received by them or within six days thereafter.  We deem the protest RESOLVED with respect to these local unions and the BLET.

            The remaining local unions named in Protest No. P-327, Local Unions 727, 743, and 2727, require additional findings.  Local Unions 743 and 2727 produced their lists on August 11, some five weeks after the protestor requested them and three weeks after the protest was filed; Local Union 727 produced its list on August 16.

Local Union 743 had two lists.  The first was compiled from individuals who had entered their email addresses and identifying information on the local union’s website.  The second list was compiled from members who had provided their email addresses directly to the local union or had listed them on DRIVE registration cards submitted to the local union; the local union TITAN operators in turn entered these email addresses in the email address field on each responding member’s TITAN record.  Local Union 743 conceded that the list generated from its website was a “covered list” under the Advisory, although it failed to produce this list for some eight days after acknowledging its obligation to produce it.  With respect to the email addresses entered into some members’ TITAN records, the local union argued that it need not produce these addresses because the Advisory states that local unions are not required “to create a list of email addresses that does not otherwise exist.”  This is the first time such an argument has been presented to the Election Supervisor, and we take the opportunity to clarify the local union’s obligations in this setting.  The TITAN database includes a “sort” function that allows the local union to generate a list of membership records that contain a populated email address field.  Local Union 743 had already entered member email addresses into TITAN, and application of the sort function was the only step necessary to create a list responsive to the Teamsters United request.  The Rules provide that a union must honor a request to distribute literature “to only a portion or segment of the membership, as determined by the candidate, unless the Union can show that such distribution is impracticable.” Article VII, Section 7(a)(2).  Distribution of literature to email addresses linked to member TITAN records clearly fits within this subsection allowing candidates to request a list for a segment of the union’s membership.  Creation of the requested list using the sorting function is no different than creating a list by employer, by zip code, or by other sortable TITAN fields.  We conclude that the email addresses contained within individual members’ records in TITAN constitute a “covered list,” as defined by the Advisory.  We conveyed this finding to Local Union 743, and it produced the TITAN-related list promptly thereafter.  Accordingly, we deem the protest RESOLVED with respect to Local Union 743.

Local Union 2727 possesses a comprehensive list of email addresses for its members which it uses periodically to provide updates on matters of concern to its nationwide membership.  The list was used by candidates competing in the local union delegates and alternate delegates election.  Nonetheless, the local union failed to produce the list to Teamsters United’s vendor until August 11, contending it should not be required to do so because it claimed that Joe Darmento, a local union member who also is a candidate for International office on the Teamsters United slate, had misused the list by sending a blast email to local union members after the conclusion of the delegates election.  We denied as untimely filed a protest raising this contention in Hoffa-Hall 2016, 2016 ESD 270 (July 15, 2016).  The local union having no reasonable excuse for its delay in producing the list, we GRANT the protest with respect to it.

Local Union 727’s principal officer is John Coli, IBT Central region vice president and a candidate for election to that office on the Hoffa-Hall 2016 slate.  The local union did not respond at all to Teamsters United’s request for its email list.  After the protest was filed, our investigator phoned the local union on July 25.  He received no response to his message, and the local union did not respond to the protest by producing the list directly to Teamsters United’s vendor.  Our investigator followed up and, on August 4, reached an attorney for the local union and explained to her the local union’s obligation to produce any covered list of email addresses.  The local union posed compliance-related questions to our investigator.  The local union produced the list on August 16, the day after our investigator provided responses to the questions.  Accordingly, we deem the protest RESOLVED with respect to Local Union 727.

For the local unions that are the subject of Protest No. P-343, filed August 10, 2016, the lists were produced on the dates shown here:

As was the case with Protest No. P-327, one local union that was the subject of Protest No. P-343 produced its list to the protestor’s vendor before the protest was filed but through miscommunication was named in the protest as a local union that had failed to respond.  We DENY the protest with respect to this union, Local Union 96, which produced its list on July 26, 2016.

For Local Unions 70, 120, 528, 639, and 657, which produced their lists on August 15, 16 or 17, 2016, we deem this protest RESOLVED.

Local Union 767 produced its list on August 22, 2016.  We deem the protest RESOLVED with respect to this local union as well because of the unique circumstances it presented.  Local Union 767 submitted its proposed local union election plan in Fall 2015.  Included with its submission was an email list comprising more than sixty pages of email addresses.  As the result of local union officer elections held in November 2015, the local union experienced a change in the composition of the executive board, with six members being turned out of office and the former secretary-treasurer being elevated to the office of president and principal officer of the local union.  The newly elected president took office in January 2016 and found that the outgoing leadership had damaged or destroyed some union assets, including the email list.  The local union did not produce its email list to Teamsters United’s vendor when requested in July 2016 because it no longer had the list.  When the protest was filed, our investigator determined that OES had in its files the list the local union had submitted with its local union election plan.  Our investigator directed that a copy of the list be returned to the local union which, in turn, produced it to the protestor’s vendor.  The failure of the local union to produce the list at an earlier date is not because of neglect or malfeasance of the current leadership.  Accordingly, we find no need for further action with respect to Local Union 767.

Local Union 651 sent its email lists to the protestor’s vendor on August 29, 2016.  In its local union election plan, the local union denied that it had any email lists but admitted that it and its officers or business agents had sent email to members in the preceding two years.  The same date the local union produced email addresses to the protestor’s vendor following the filing of the protest here, the local union principal officer wrote our investigator to explain that he had just learned the local union’s website had been set up to allow members to register their email addresses on the site, something of which he said he previously was unaware.  Further, he reported that he had canvassed his business agents to collect for forwarding to the protestor’s vendor any email addresses they had.  We conclude that minimal diligence on the part of the Local Union 651 leadership would have alerted it to the need to produce its email lists well before the date it actually produced them.  Accordingly, we GRANT the protest with respect to Local Union 651.

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).

            Permitting campaign access to the membership by candidates for International office on a free and fair basis and without discrimination is a fundamental obligation of local unions.  In the electronic age, such access includes email access.  Local unions are required by the clear language of Article VII, Section 7(a)(4) and our Advisory on the subject of their obligation to facilitate campaign communications by providing email access to their membership to campaigns that request it.  Such access must be provided promptly and without interference.  Here, we find that Local Unions 2727 and 651 failed to fulfill disclosure obligations, enjoined upon them by the Rules, to permit the campaign access to the members through email communications.  The Rules impose obligations that are in effect continuously during the International officer election.  The requests made here are subject to repetition (whether by Teamsters United, another slate, or other nominated candidates for International office) at any time until balloting is completed. 

            Additional remedies are appropriate for those local unions that have demonstrated by their past conduct an unwillingness to comply with the clear rule on providing email lists.  For those local unions, a remedial fine is appropriate to encourage compliance with these and other Rules obligations through the end of the election period.  These local unions may avoid any future remedial fines by complying with the Rules as they are obliged to do.  In the case of Local Union 2727, the present failure to produce the email list could not be evaded by pointing to a prior alleged misuse of the list.  Local Union 651’s repeated failures in this area – from its inadequate response to the local union election plan to its purported unawareness of its own collection of email addresses through its own website – call for a remedy designed to ensure future compliance in the remaining election period.  We therefore order Local Unions 2727 and 651 each to pay a fine to the Office of the Election Supervisor in the amount of $1,000.00.  Such fine must be paid by Friday, September 16, 2016.  As stated, these fines are strictly remedial in nature and are intended to stress to these local unions – and all unions under the Rules – of their obligations to comply with the Rules.

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 283

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