Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: HOFFA-HALL 2016,                      )           Protest Decision 2017 ESD 361

                                                                        )           Issued: January 5, 2017

            Protestor.                                           )           OES Case No. P-380-101116-FW     

____________________________________)                      

Hoffa-Hall 2016 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 Teamsters United received an impermissible employer contribution in the form of a partisan sticker posted on an employer truck at a YRC facility in Pico Rivera, CA.

            Election Supervisor representative Michael Miller investigated this protest.

Findings of Fact and Analysis

Investigation showed that a photo of a “fred” pole sticker affixed to a YRC truck was posted to the Facebook page of Stephen M. Fairchild with the caption, “My company my truck my president my union.”  The photo was taken from the left rear of the truck’s cab and showed the sticker posted on the left rear corner of the cab, just to the rear of the driver’s door.  Fairchild is a 17-year member of Local Union 63 working the day shift at YRC from its Pico Rivera CA depot.  When our representative interviewed him on October 12, 2016, the day after the protest was filed, Fairchild had already removed the sticker.  He told our representative he was unaware that posting a campaign sticker on his company truck violated the Rules, stating further that he believed displaying a photo of the sticker on the company truck on his Facebook page was his free speech right.  Our representative informed him of the provision of the Rules prohibiting employer contributions to candidates, explaining that posting partisan stickers on employer-owned property can signal prohibited employer support for a candidate.  Fairchild stated he now understood the rule and its rationale and deleted the photo from his Facebook page.

In a follow-up interview the next day, however, Fairchild was much less cooperative.  He stated that as soon as word got out that “these stickers are a problem,” “there will be a lot more of them posted all over the place,” on rigs and company property as an act of defiance.  He stated he really did not care that this was a Rules violation because “the Hoffa people” have been doing it for years with impunity and members “were fed up.”

At our representative’s request, Fairchild on October 13 sent a photo of his truck after the “fred” sticker had been removed to establish compliance, and review of his Facebook page that same date showed that the photo containing the partisan sticker had been deleted.  In its place was the following commentary: “I found out this morning that I am the subject of a protest filed with the election supervisor for posting a picture of my company truck with a Fred Zuckerman bumper sticker on it.  So it has been requested of me by my friends who want Fred to be our next union president to take the sticker off my truck and I will because I don’t want Freds campaign to get in trouble on my ass.  But you guys watch for a new post.  By the way I am told it was hoffas son who filed the protest.  It didn’t occur to me that the Hoffa camp would be spying on Zuckerman for president websites but apparently they are.  After I read the document that was sent to me by email from the election supervisor I will post it so everybody can read it and maybe you’ll get a laugh as much as I do.” 

Later on October 13, a new post and photo appeared on Fairchild’s Facebook page.  It depicted his truck, taken from the same left rear vantage as the original photo.  In place of the “fred” sticker was the word “fred” in bold, black letters, written vertically by hand, apparently with grease.  The caption accompanying the photo read: “I took the Fred Zuckerman sticker off my company truck yesterday but look what I found underneath.  Damn company hasn’t washed my truck in months.”

Because this new photo of his truck cab presented yet another violation of the Rules, namely, the use of company property to promote Fred Zuckerman’s candidacy, our representative again attempted to contact Fairchild to rectify the matter.  After two attempts, Fairchild finally agreed to a third interview on Saturday, October 15.  He assured our representative that the second offending photo had been removed from his Facebook page a few hours prior to our representative’s phone call.  He guessed the second photo with the name “fred” marked boldly in black where the pro-Zuckerman sticker had been before was posted to his Facebook page for only a few days, and that once he had been re-contacted by OES about the matter, “someone else” had removed the new lettering from the truck.  Along with that action, Fairchild himself had removed the new Facebook comment about the company leaving his truck with the “fred” lettering.  Agitated, Fairchild objected to the effort OES was putting into addressing what he perceived as “only a minor matter” involving the Zuckerman sticker on his rig.  He maintained he did not know such stickers or postings on company property were a problem, so our representative explained the rule again and the reason behind it carefully and deliberately. At the end of this third conversation, Fairchild promised that he now, as of October 15, understood the Article XI prohibition on use of employer resources to further any candidate’s campaign, and that he would abide by this rule in the future.  We found no further violation of this rule on Fairchild’s part.

Our representative contacted Mike Monzon, a YRC employee at the Pico Rivera depot and a 15-year steward for Local Union 63.  He told our representative he was not aware that campaign stickers on company trucks or other property had been a problem during this election cycle.  He said he was aware and understood the reason why such conduct violated the Rules, and had this year regularly performed “yard checks” to insure no inappropriate Zuckerman or Hoffa postings or stickers were made.  He saw this activity as part of his job as a steward.  He became aware of the sticker on driver Stephen Fairchild’s truck only about October 11 or 12.  He was certain that it was not on the truck more than two or three days, and noted that it had been removed as of October 12.  He said he was vigilant for stickers on company property and inside the docking/dispatch areas as well.  He could not cite any other recent incidents of inappropriate postings within the past several months, either first or second hand.  Monzon noted that in late September or early October both Zuckerman and Hoffa supporters had put stacks of their respective campaign flyers in the YRC company break room, but no one had complained and there were no instances that he knew of where members had passed these out, used or displayed them in the work areas or on company property.  He stated that the break rooms were neutral ground, not considered part of the workplace, where political flyers had in the past been allowed on the tables.  Monzon agreed to notifiy OES if he saw any pattern of campaign abuse, or if he was unable to obtain cooperation from the members who work at the facility.  We received no further contact from Monzon.

Our representative contacted Sam Stewart, president of Local Union 63, which had jurisdiction over YRC – Pico Rivera.  He acknowledged that, sporadically in the past, either pro-Hoffa or pro-Teamsters United stickers or flyers sometimes were noticed in workspace areas or on trucks and yard conveyors at UPS.  When this happened, either the business agent, the steward, or more often than not, the custodian, took these materials away and discarded them the same day.  In this current election cycle Stewart did not note any complaints or patterns regarding improper postings of campaign stickers or flyers on YRC property.  He and his agents understood that watching out for these types of violations was part of their jobs.  On the day our representative spoke with him, Stewart reported he had had a meeting with his business agents to remind them to remove any stickers or flyers from workspace areas or equipment and report the problem to him since ballots in the International election were then being received.  In Local Union 63’s jurisdiction, there are four UPS main facilities:  Ontario freight (3,500 members), Rialto small package (800 members), and Montebello and Paramount distribution centers (200 members each).  Stewart reported that none of these had had any real problem with inappropriate stickers or flyers.  He stated further that he received one report of a pro-Zuckerman flyer on an open company bulletin board at the Rialto facility, but business agent Tim Fraley, who noticed the posting, took it down as soon as he saw it.  Stewart agreed to advise OES of any future posting or sticker problems.  We received no further information from Stewart on this subject.

Our representative interviewed business agent Fraley, who reported seeing pro-Zuckerman flyers on two company bulletin boards, the first at the small Amazon package distribution hub in Ontario, where about 106 union members work, and the second at the Ontario UPS hub.  The company board at Amazon was to be used only for official company notices.  Fraley, in one of his visits to the facility on October 5, noticed the Zuckerman flyer and promptly removed it.  He did not take a picture of it, but he kept the flyer.  He did not know how long it had been posted there, but assumed not for long, as he visits the facility regularly and checks such things.  At the Ontario UPS main hub, the Zuckerman flyer was also on the company board, in this case a two-panel glass-enclosed board that had half the glass panel removed.  At that facility, the board is used by UPS’s HR office to post official company announcements.  Fraley noted that the posting was put up “not long,” probably no more than a few days, as he also visits that facility regularly and would have noticed anything irregular about the board postings during a prior visit.  This time, Fraley took a picture of the flyer before he removed it from the open casing of the board.  He sent the photo of the Ontario board posting of the Zuckerman flyer to our representative.  On his visits to various UPS facilities within Local Union 63’s jurisdiction, Fraley said he made it a habit this past election year to inspect the union and company bulletin boards, plant premises, and rigs to insure none were used inappropriately to post campaign flyers or stickers.  The two instances he found where this election rule was violated were the only times he had observed a problem during this cycle, and he removed the flyers both times as soon as he saw them.  Fraley denied ever seeing any pro-Hoffa flyers similarly placed on company equipment or premises during this current election cycle.  He agreed to report to OES any future sightings of campaign posting.  We received no further communication from Fraley.

Our representative also spoke with Rick Ellison, a Local Union 63 business agent with responsibility for ABF and Reddaway Trucking.  He was contacted because respondent Fairchild identified ABF and Reddaway as other trucking companies which had experienced instances of campaign stickers on their company trucks.  About 116 members work at the ABF yard in Pico Rivera.  During this cycle, Ellison said he had not seen any pro-Hoffa or pro-Zuckerman stickers on rigs or other company property.  In some of the past cycles, particularly in the Carey elections in the 1990s, stickers on company property were a significant problem and an ongoing maintenance concern for the company.  Now the business agents, the stewards, and generally all the members know that campaign stickers and flyers on company property and in workspace areas are never allowed, and there is general compliance with the rule.  Any violations noted are quickly taken care of by the attendant steward and the company.  Ellison said he could only speak for his ABF and Reddaway shops, but they all had been “clean” this election cycle.   He deferred to business agent Ron Seamans for more first-hand information at YRC and UPS.

Our representative interviewed Seamans, a 21-year business agent assigned to handle member affairs at the union’s YRC freight lines locations, chief among them the Pico Rivera depot where 400 members work, and the Pico Rivera ABF depot, where about 300 members work.  He told our representative that, unlike in the past, Seamans had not noticed any campaign stickers from either slate on any company equipment or property in this election cycle, except for the one pro-Zuckerman sticker involving Stephen Fairchild’s rig at YRC.  On Friday, October 14, 2016, upon learning of the protest and reviewing information supplied by complainant Hoffa, Seamans traveled to YRC to inspect Fairchild’s assigned truck cab and trailer.  He found them clean of both the sticker and the “fred” lettering that had apparently only briefly been written in bold black grease in its place.  At the same time, as he always does whenever he makes a site visit, Seamans inspected all the parked rigs and “walked the whole yard” to see if there were any inappropriate campaign stickers or postings at YRC.  He found none, as had been the case for his inspections over the past year once the election season started.  The same could be said of his inspection of the ABF truck depot.  Both the union bulletin boards and the company boards at this facility were similarly clean and locked behind glass.  YRC had a third all-purpose bulletin board, not locked, and not behind glass, where members could post personal items of interest, items for sale, or otherwise self-advertise, and Seamans had noted pro-Zuckerman posters on this board from time to time, but no one objected because of the personal nature and use of the board, and the fact that both political factions knew it could be used for political postings should they choose to do so.  Seamans stated his intention to continue to be vigilant to insure that no one violated the Rules provisions regarding a prohibition of either union or company endorsement of any political candidate.  He noted the incident involving Fairchild’s rig had been a rare exception of the overall compliance on the part of members, the company, and the union, with respect to such inappropriate postings.

Our representative also interviewed Fred Zuckerman, since the protest identified him as complicit in the alleged violations.  Zuckerman denied any part in Stephen Fairchild’s posting of the pro-Zuckerman sticker to his truck cab.  Zuckerman said he did not know Fairchild and doubted ever having met him.  Zuckerman said he understood that putting a campaign sticker on a company truck or posting a picture to that effect on one’s Facebook account is a violation of the Rules, having only recently been told that the Facebook posting in Fairchild’s case is a violation.  He said he “might have ‘liked’” Fairchild’s Facebook posting before being advised by his slate’s attorney, David Suetholz, that doing so is also a problem.  Other than Zuckerman’s “like” of Fairchild’s posting, he had not had any part in Fairchild’s decision to do what he did, and understood that Fairchild had since removed both the sticker from his cab and the posting from his Facebook account.  In addition, Zuckerman had told his campaign promoters and candidates that the Zuckerman campaign stickers could not be placed on company property or in workspace areas, nor could pictures of such offenses be posted to individual Facebook accounts.

In past cases during this election cycle, we have held the posting of campaign material on employer property to be an improper endorsement of a candidate by an employer.  Hoffa-Hall 2016, 2016 ESD 64 (January 8, 2016).  However, we have also held the prompt removal of the improper endorsement has often been held sufficient remedy for the protest. Id. See also, Halstead, 2006 ESD 386 (October 26, 2006); Wright, 2006 ESD 361 (October 2, 2006); Leedham Slate, 2006 ESD 301 (July 5, 2006); Halstead, 2005 ESD 31 (June 6, 2005); Domeny, 2001 EAD 499 (October 5, 2001); Speak, 2001 EAD 239 (March 14, 2001). 

Here, Fairchild’s prompt removal of the “fred” pole sticker from his YRC truck should have ended the matter and placed this case in the same category of cases where no further remedy was required.  However, what distinguishes this case for an enhanced remedy is Fairchild himself, who, after a specific explanation and admonishment, deliberately disregarded the rule prohibiting posting of campaign material on company property or displaying photos of such postings on his Facebook page.  Initially, Fairchild seemed willing to cooperate and abide by the Rules once alerted to the problem he caused, but a second Facebook violation of the same rule only a day after OES advised him of the Rules is troubling.  In fact, during his second follow-up interview, Fairchild made clear his disregard for the applicable Rules.  As noted in the investigation, he re-posted an equally offending photo a day after his initial interview, apparently assuming it would not be noticed.  Called to account for his action and to remove the hand written “fred” second posting on his truck cab, he ignored the OES investigator’s voicemail and his earlier agreement to comply with the Rules for several days. 

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).

            As remedy for Fairchild’s repeated and defiant violation of the Rules after being instructed in the requirements and purpose of them, we order Fairchild to pay a fine to the Office of the Election Supervisor in the amount of $250.  Such fine shall be received by the Office of the Election Supervisor no later than January 13, 2017, at the following address: 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036.  This fine is strictly remedial in nature and is intended to impress upon Fairchild the need to comply with and demonstrate respect for the Rules and to maintain continued compliance with them.  Failure or refusal of Fairchild to pay the fine timely may result in further enforcement action, including referral to the Independent Investigations Officer for action under the Final Order.

                        We further order Local Union 63 to post the notice attached to this decision on all worksite bulletin boards under its jurisdiction no later than January 13, 2017 and to maintain that posting through and including February 13, 2017.  No later than January 16, 2017, the local union shall provide proof of compliance with this remedy by declaration made under penalty of perjury.

            A decision of the Election Supervisor is immediately effective unless stayed.

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

            2017 ESD 361

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

Stephen M. Fairchild

Step.1fairef@yahoo.com

Mike Monzon

Mikem8894@aol.com

Sam Stewart, President

Teamsters Local Union 63

sammyspl@msn.com

Tim Fraley

Tfraley223@verizon.net

Rick Ellison

rickellison@local63.net

Ron Seamans

rseamans@local63.net

Michael Miller

P.O. Box 251673

Los Angeles, CA 90025

miller.michael.j@verizon.net

Deborah Schaaf

1521 Grizzly Gulch Dr

Helena, MT 59601

dschaaf@ibtvote.org

Jeffrey Ellison

214 S. Main Street, Suite 212

Ann Arbor, MI 48104

EllisonEsq@aol.com