Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

 

IN RE: O’Brien-Zuckerman 2021,   )           Protest Decision 2020 ESD 2

                                                                       )           Issued: June 29, 2020

Protestor.                                           )           OES Case No. P-001-060320-NA

____________________________________)

 

O’Brien-Zuckerman 2021, a slate of candidates for International office, filed a pre-election protest pursuant to Article XIII, Section 2(a) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”).[1]  The protest alleged that the IBT violated the LMRDA’s prohibition on using union funds to support or oppose a candidacy.

 

Election Supervisor representative Jeffrey Ellison investigated this protest.

 

Findings of Fact

 

O’Brien-Zuckerman 2021 identified five incidents it contends, whether taken singly or together, demonstrate that the IBT impermissibly used union resources to oppose the candidacy of one or more members of the slate.  Three incidents related to a 2018 organizing effort in the Sysco Boston bargaining unit; the fourth concerned the manner in which the IBT responded to an allegation that the protestor used union resources in 2018 to support its campaign; and the fifth arose from an April 2020 effort to compel YRCW, a national freight-hauler, to protect local union members from infection of the novel coronavirus at a South Dakota facility. 

 

The protestor alleged that the IBT took these actions to discriminate against two candidates on the protestor’s slate, Sean O’Brien and Tom Erickson.  O’Brien is a candidate for General President on protestor’s slate and has been at least since his formal declaration for that office in May 2018; he also is president and principal office of Local Union 25 and Joint Council 10, both headquartered in Boston, MA.  Erickson is a candidate for Central Region vice president on the protestor’s slate and has been at least since his formal declaration for that office in February 2020; he is also president and principal officer of Local Union 120 in Blaine, MN and trustee on the executive board of Joint Council 32 in Minneapolis, MN.  A description of the circumstances underlying this protest follows.

 

1.      The Sysco Boston organizing effort and the proposed partnership agreement.

 

Local Union 653 undertook an organizing campaign beginning in summer 2017 for the employees of Sysco Boston, a unit of more than 250 employees.  Sysco Boston is an affiliate of Sysco Corporation, an international distributor of food products to restaurants, hotels, and healthcare and educational institutions.  The Teamsters have worked for several years to organize Sysco locations as stand-alone bargaining units and have successfully concluded contracts at scores of locations nationwide.

 

The Sysco Boston unit had been the subject of organizing drives in the past, most recently in 2015 and previously in 2005, but the drives stalled because the union had been unable to secure enough signed authorization cards from interested employees to warrant filing a petition for representation with the NLRB.  One of the features that made Sysco Boston more challenging to organize was that, while many of the unit employees worked at the employer’s warehouse in Plympton, MA, some 40 miles south of Boston, the appropriate bargaining unit also included ten satellite locations.  These were situated to the north in Bow, Manchester, and Exeter, NH, as well as Peabody and Dracut, Massachusetts; to the west and northwest in Springfield, Charlton, and Fitchburg, MA; and to the southwest and southeast in East Greenwich, RI, and Hyannis, MA.  Most of these satellite locations were at least an hour’s drive from Plympton, with some more than two hours away.  Most drivers at the satellite locations worked routes originating and returning to those locations and did not routinely travel to the Plympton warehouse; for this reason, a successful organizing drive would require investment of resources not only in Plympton but at the distant satellite locations as well. 

 

Local Union 653 initiated the organizing effort more than a year before the representation petition was filed.  Unable to reach a number of signed cards that would warrant an NLRB election petition, the local union asked Joint Council 10 for assistance in early 2018, and the joint council in turn sought assistance from the IBT Organizing department.  Jack Curran, the IBT’s organizing coordinator for the East region, attended the first meeting that involved the IBT in the Sysco Boston organizing effort in February 2018.  When the International joined the effort, Chris Rosell of the IBT Organizing department became the lead organizer assigned to the campaign, assisted from the IBT by other staff organizers as well as IBT Warehouse division staff.  Joint Council 10 contributed funds, a staff organizer, lost-time organizers, and other assets to the effort.  Once the IBT became involved, the drive achieved the desired initial benchmark number of signed cards on July 28, 2018.  NLRB rules require a showing of interest in signed cards of only 30% of the bargaining unit; the IBT, as a matter of policy, does not file election petitions unless it has signed cards from a supermajority of bargaining unit members, as experience has shown that a very high level of support dramatically improves the campaign’s ability to withstand the employer’s anticipated “vote no” campaign.[2] 

 

Local Union 653 petitioned the NLRB for a representation election on September 7, 2018 after achieving the targeted supermajority figure.  Getting to that number took considerable effort.  After achieving the threshold level on July 28, the push to obtain the additional cards necessary to make the supermajority slowed, and Curran saw the need for more organizers to reach out to unit members to persuade them to support the drive.  According to Curran, the IBT had at various times committed 6 to 10 organizers.  He requested that Local Union 653 contribute rank-and-file drivers from Reinhart Food Service to work the campaign, as union members from an employer in the same industry as the targeted unit are often effective in persuading potential members of the benefits of a union shop.  The Reinhart drivers would have to be paid for their lost time, and Local Union 653 agreed in principle to supply them.  Curran told our investigator that despite these promises, the local union had been slow to supply the lost-time organizers.    

 

IBT lead organizer Rosell told our investigator that the campaign had been building momentum through the summer of 2018 but needed a push to gain the final cards that would warrant an election petition.  At Curran’s urging, Rosell and other IBT Organizing and Warehouse representatives met with O’Brien and local union representatives involved in the Sysco Boston campaign on August 25, 2018.  The meeting took place as a sidebar to Joint Council 10’s delegates meeting in Plymouth, MA.  There, Rosell presented a so-called partnership agreement to O’Brien and asked him to sign it.

 

The draft partnership agreement provided to our investigator listed the partners as the IBT Warehouse division, Joint Council 10, and Local Union 653, and listed the target unit as Sysco Boston.  The draft identified Rosell as lead organizer, supervising two full-time organizers supplied by the IBT.  In addition, the agreement stated that Joint Council 10 and Local Union 653 would each supply three lost-time organizers to be supervised by Rosell.  

 

The template from which the Sysco Boston partnership agreement was drawn was an Organizing department document which, by its terms, suggested that it was to be agreed upon at the start of a campaign rather than the stage at which Rosell presented it.  The document divides the campaign into defined stages and recites the benchmarks to be achieved as a condition of continuing the campaign.  Foundational stages of the campaign had been completed by the time Rosell presented the partnership agreement.  The last stages to be completed, gaining a supermajority of authorization cards and filing the petition and winning the election, were what remained and of course required significant effort.

 

By August 2018, Rosell had been employed full-time in the IBT Organizing department for some fourteen years.  Over that span, he estimated that he sought and obtained a partnership agreement with a local union and/or joint council in roughly one-quarter of the campaigns he worked.  In Sysco campaigns, he said that two of more than a dozen he worked included a partnership agreement. 

 

Todd Thompson, executive assistant to IBT General President Hoffa, told our investigator that partnership agreements are routinely sought and obtained, and that their purpose was to share the effort and expense among the International, joint council and local union so that the IBT does not alone bear the expense involved in organizing.  Thompson explained that spreading responsibility and cost also incentivizes the additional parties to push for a positive outcome.

 

Rosell’s presentation of the partnership agreement took O’Brien by surprise, for several reasons.  First, despite O’Brien’s years of union leadership experience at all levels – local union, joint council, and as a sitting International vice president for the East region – he had never been presented with or heard of a written partnership agreement between the IBT and any affiliate.  He told our investigator that as a member of the IBT General Executive Board, he received periodic briefings the IBT Organizing department made to the board and never heard of any campaign where a partnership agreement was in place.  Second, upon reviewing the proposed agreement, O’Brien questioned the decision to present it more than a year into the campaign and just before the NLRB representation petition was to be filed.  At that juncture, the burden of the organizing campaign had already been shared among multiple entities – the IBT, Joint Council 10, and Local Union 653 chief among them – and he saw no need to formalize a work-sharing agreement that had operated informally for so long, especially where the drive to collect signed applications for membership had reached the minimum threshold for filing the petition.  Finally, he was suspicious of the benchmarks identified in the agreement.  He viewed them as ambiguously defined and subject to manipulation by the IBT to derail the organizing drive and embarrass O’Brien.  In particular, he was concerned that if the remaining cards were not obtained, the IBT would walk away from the effort.

 

O’Brien’s suspicions stemmed from events that had occurred a year earlier, in September 2017, when General President Hoffa removed him as director of the IBT’s Package division.  The Package division is the IBT’s largest division and includes the hundreds of thousands of members employed by UPS.  O’Brien was appointed as division director in February 2017 and had begun leading the division into negotiations with UPS for a successor collective bargaining agreement.  He told our investigator that he had sought to form a broad bargaining committee comprised both of local union leaders who had supported the Hoffa slate in the previous union election and those who backed the opposition.  O’Brien stated that he believed a diverse committee would strengthen the union’s bargaining position by presenting a united front to the employer; he also believed it would foster broad buy-in from diverse segments of the union membership for the resulting agreement and potentially head off the type of “vote no” campaign that arose in the aftermath of the previous UPS negotiation.  O’Brien told our investigator he was warned privately several times by individuals he regarded as close to the General President that he should back away from the strategy of making the bargaining committee politically diverse.  He stated that he told those individuals that he would not compromise this point.  On September 6, 2017, General President Hoffa announced the immediate replacement of O’Brien as Package division director and leader of the UPS negotiations with Denis Taylor, principal officer of both Local Union 355 and Joint Council 62, an International trustee, and an International representative.  Taylor was touted by the IBT as experienced, committed, and knowledgeable to lead the negotiations.  O’Brien stated that he understood General President Hoffa’s removal of him and appointment of Taylor as motivated by O’Brien’s unwillingness to compromise on his intention to include leaders not aligned with Hoffa on matters of IBT internal politics on the UPS bargaining committee.  Whether O’Brien’s conclusion was correct is beyond the scope of this decision.  We note only that O’Brien believed his conclusion was correct and that he viewed the presentation of the partnership agreement a year later in the Sysco Boston organizing campaign through that lens.

 

O’Brien read the agreement Rosell presented to him and asked Rosell questions about it.  O’Brien then refused the document, telling Rosell that it was not warranted under circumstances where the joint council and local union had already committed extensive resources to the Sysco Boston campaign.  At this point, Rosell and O’Brien discussed the sharing of expense and effort going forward.  Joint Council 10 and Local Union 653 agreed between them to fund a get-out-the-vote mailing for bargaining unit members, and the joint council agreed to make a page of its website available to the IBT Organizing department for posting of campaign videos targeting bargaining unit members.  The local union and joint council also affirmed their intentions to supply lost-time organizers to the campaign.  Rosell reported back to Curran that O’Brien rejected the partnership agreement but that the local union and joint council were continuing to commit resources to the organizing drive. 

 

Curran did not attend the August 25 meeting but received an oral report of it from Rosell.  Curran told our investigator that getting the additional organizers, from the local union in particular, would provide support needed to push the drive towards success, and he was pleased with that commitment.  The commitment from the affiliates to pay the cost of the get-out-the-vote mailing and host the campaign videos was important, but the organizers they were to supply was critical to obtaining the final cards and winning the election.  Curran told our investigator that International officer politics – and O’Brien’s candidacy in particular – played no role in his suggestion to seek the partnership agreement.  He denied the agreement was an effort to manipulate or embarrass O’Brien; he denied further having any discussion with Thompson about the agreement.  He stated simply that the request for additional organizing help was sought solely to make the Sysco Boston campaign successful.

 

In Curran’s view, the August 25 meeting played a key role in the campaign.  With the additional commitment of organizing help from the affiliates, the organizers obtained the cards necessary to achieve a supermajority, and the NLRB election petition was filed on September 7, 2018.  An election agreement was reached on September 24,  and the NLRB conducted a secret-ballot election among the employees on October 5, 2018.  The NLRB regional office tallied the ballots on October 24, 2018 and announced that employees chose the local union as their bargaining representative by nearly a 2 to 1 margin.

 

2.      The O’Brien-Zuckerman 2021 campaign cruise and subsequent investigation.

 

            On August 25, 2018, the same day O’Brien rejected the Sysco Boston partnership agreement, he headlined a campaign boat cruise fundraiser of some 700 supporters on Boston Harbor.  Fred Zuckerman and Avral Thompson, two other candidates on the slate, joined him.  Videos were recorded and posted to Facebook pages.  Terry Post, a member of Local Union 853, viewed the videos and filed a protest alleging impermissible use of union funds to support the campaign activity.  Post reviewed two video recordings of the event that were posted to separate Facebook pages, one to the page of a member of Teamsters Local Union 623 in Philadelphia, PA, the second to the official O’Brien-Zuckerman 2021 Facebook page.  Both recorded the speeches Thompson, Zuckerman, and O’Brien delivered to the hundreds of supporters at the event.  The O’Brien speech that appeared on the campaign Facebook page was edited to delete one statement he made that appears in the video on the other page.  That statement was as follows:

 

I want to thank the great staff at Local 25.  I can’t name them all, obviously, because if I forget, then tomorrow I get yelled at in the office.  The reality of it is that they make events like this happen.

 

Post’s protest asserted that the “obvious implication here is that the O’Brien-Zuckerman Slate intentionally deleted the Local 25 staff comment knowing it might implicate the Slate and Local 25 (and possibly others) in the illegal and unauthorized use of union resources in support of their election campaign.”

 

            The LMRDA and the IBT Constitution prohibit use of union resources to support a candidate’s campaign for union office.  Because of O’Brien’s statement thanking “the great staff at Local 25” who “make events like this happen,” the IBT investigated the protest to determine whether union funds, including campaign work on union-paid time, were expended in planning or executing the campaign cruise.  O’Brien denied to the IBT investigator that any union funds were used for a campaign purpose, including work done to support the campaign cruise on union-paid time.  The IBT investigator interviewed each of the Local Union 25 staff members that O’Brien said worked on the event.  Each of those staff members told the investigator that they volunteered their time during non-work hours and were not coerced to do so.  Brian Rainville, the communications director for Joint Council 10, told the IBT investigator that he edited the video of O’Brien’s remarks on a volunteer basis.  He deleted O’Brien’s statement thanking the local union staff because of concern that criticism from Facebook “Trolls” would bring disorder to the Facebook comment section if the statement were retained.

 

            The IBT investigation concluded that there was no evidence that union funds were used to support the campaign cruise, despite O’Brien’s statement thanking the local union staff for their efforts to make the event happen.  The letter closing the investigation was sent September 18, 2018 to protestor Post, with a copy to O’Brien among others.

 

3.      The press release announcing the Sysco Boston organizing victory

 

As noted, the NLRB petition for the Sysco Boston drive was filed less than two weeks after the Plymouth meeting.  The campaign intensified ahead of the October 5, 2018 representation election, with the IBT, Joint Council 10, Local Union 653, and other local unions with Sysco units contributing resources.  When votes were tallied on October 24, 2018, the union won 137 to 81.

 

Tammy Edwards, a Warehouse division staff member, prepared a press release that day announcing the victory.  Edwards had previously worked in IBT Communications and had experience with the elements of press releases.  The draft Edwards submitted to IBT Communications led with the announcement of victory, followed by quotes from several individuals.  The first quote was from a Sysco Boston employee who explained why he voted for the union.  The next quote was from Local Union 653 principal officer Brian McElhinney, welcoming the employees to the local union.  A quote from Steve Vairma, director of the IBT Warehouse division, followed, touting the win as a step toward justice for Sysco Boston workers.  The next quote was from O’Brien; it read:

 

“This is a great victory for Sysco workers.  It shows the power of what can be done when Teamsters work together,” said Sean O’Brien, International Vice President and Secretary-Treasurer of Teamsters Joint Council 10.  “It was a joint effort that began with the Sysco workers and ran through the staffs of Local 653 and Joint Council 10, International Organizer Chris Rosell and the Organizing Department as well as local unions around the country, including Local 120.  Everyone chipped in to ensure that Massachusetts Sysco workers will have a voice at work.  Now the work begins.”

 

At 1:44 p.m. EDT on October 24, 2018, Edwards emailed the draft press release to O’Brien and Brian Rainville, communications director for Joint Council 10, after sending it to Bret Caldwell at IBT Communications.  In the email to Rainville and O’Brien, Edwards congratulated them on the on the win and wrote, “The quote you sent made a great kicker for the release.”

 

            Less than 90 minutes later, at 3:13 EDT, IBT Communications issued the press release through its press service, PR Newswire.  The release was sent to a media list of labor reporters, Massachusetts-based media outlets, and all IBT affiliates, including local unions, joint councils, and General Executive Board members; it was also posted to the IBT website.  The release listed Kara Deniz, IBT press secretary, as the contact person for more information.

 

            The release put out on PR Newswire was verbatim of the one Edwards submitted to IBT Communications, except the quote from O’Brien was omitted.  IBT Communications director Caldwell told our investigator that he had not been involved in the Sysco Boston organizing campaign and did not know the roles played by various parties.  He reviewed the release, saw the O’Brien quote, and decided to check with Todd Thompson for authorization to issue the release as written.  According to Caldwell, using a quote from the principal officer of a joint council when announcing a local union organizing win sometimes occurs but is not the norm, and he was cautious about using O’Brien’s quote given his recent dismissal as Package division director.

 

A review of IBT press releases that announced organizing victories issued in the twelve months before the Sysco Boston press release, supports Caldwell’s point.  Of the seventeen press releases we reviewed, only two included a statement from a joint council officer speaking solely in that capacity.  One such release reported an organizing win at Local Union 251 in Rhode Island; Sean O’Brien was quoted in that release in his capacity with the joint council.  All other press releases during this period included statements only from officials of the local unions that organized the workers, including three other organizing wins within Joint Council 10.[3]

 

In Caldwell’s account of his call to Thompson, Caldwell said that he described the circumstances and Thompson asked what is normally done in a press release announcing an organizing victory.  Caldwell replied that a statement from a joint council leader is not normal but not unusual either.  Caldwell told our investigator that Thompson replied, “Well, take it out then.”  Caldwell did so and issued the release.

 

            O’Brien reviewed the release promptly after it issued.  He emailed Deniz at 3:24 EDT, with a copy to Caldwell, “How come there was no quote from the Joint Council in this press release?”  According to Caldwell, O’Brien called him soon after sending the email and asked why his quote was removed from the press release.  Caldwell told our investigator he told O’Brien that the IBT normally does not include a joint council quote in a local union organizing victory.  According to Caldwell, O’Brien replied that Joint Council 10 was very much involved in the Sysco Boston drive, giving details of what the joint council contributed.  He then asked Caldwell whether the quote was taken out for political reasons.  Caldwell said he denied to O’Brien that politics played a role in the decision to remove the quote.  When the call with O’Brien ended, Caldwell phoned Thompson again and relayed to him the conversation with O’Brien.  Thompson’s reaction was to revise the release to include the O’Brien quote and re-send it immediately.  Deniz emailed O’Brien at 4:03 EDT, attaching the revised release that included his quote and stating that it would be re-issued promptly to the same recipients as the original release.  This was done.  The release containing O’Brien’s quote remains on the IBT’s website.

 

            Thompson told our investigator that he did not recall Caldwell’s first call to him about removing the quote but recalled the second.  Thompson said as executive assistant to the General President he is very busy throughout the day, frequently on the phone or in meetings to deal with issues confronting the union.  When Caldwell called to relay his conversation with O’Brien and the role Joint Council 10 played in the organizing campaign, Thompson said he told him, “Well, put it back in then.”  Thompson told our investigator that he is “not a micromanager” but rather a delegator, and that the content of press releases fell within Caldwell’s responsibility.  Thompson denied that any political consideration weighed on the decision-making with respect to O’Brien’s quote.  “I do [stuff] for Sean all the time,” Thompson said.

 

4.      O’Brien’s protest concerning the Sysco Boston press release.

 

            A day later, October 25, 2018, O’Brien filed a protest with the IBT, alleging that the removal of his quote from the press release violated LMRDA Section 401(g) as a “conscious and politically motivated act by General President Hoffa and his administration to silence legitimate IBT communications from O’Brien.”  By letter dated November 2, 2018, IBT General Counsel Brad Raymond “concluded further action is unwarranted at this time” because “the essential facts appear to be undisputed.”  Raymond elaborated that the omitted quote O’Brien complained of was promptly restored to the press release, which, Raymond noted, was “exactly what you say you wanted.”  Raymond nonetheless advised O’Brien of his right, once an Election Supervisor was appointed and the Election Rules adopted, to file a “reach back” protest, which the protestor now has done.

 

5.      The YRCW COVID-19 press release.

 

            Local Union 120 represents a unit of call-center employees of YRCW, a large freight-hauler, in Sioux City, South Dakota.  When a member employed at the facility contracted COVID-19 in April 2020, the local union sought to have the employer implement practices to reduce the risk of infection of its other members employed there.  Dissatisfied with the employer’s response, the local union prepared a press release to publicize the problem and spur the employer to action.

 

            Tom Erickson, principal officer of the local union, told our investigator that he spoke with Bret Caldwell of IBT Communications about the effort, and Caldwell offered to assist with the release, including editing and issuing it.  According to Caldwell, Erickson told him that the IBT’s Central Region freight coordinator, Mike Hienton, was aware of the local union’s plan to publicize the problem and assented to it.  Caldwell did not verify this statement with Hienton and did not contact Ernie Soehl, the IBT’s national freight director, for approval of the release.  Caldwell issued the release after 4 p.m. EDT on April 13, 2020 to media and IBT affiliates and posted it to the IBT website.  That evening, Caldwell received a phone call from Todd Thompson, directing him to pull the release down from the website because it had not been approved by Soehl. 

 

            Caldwell told our investigator that for an employer under a national contract with the IBT such as YRCW, the Communications department follows a practice of issuing press releases only with the approval of the IBT director for that employer.  Here, Caldwell believed that Hienton’s assent, reported to him by the local union, was sufficient approval from the IBT freight division.  This proved incorrect.  Hienton told our investigator that after the release was issued, Soehl called him, upset that Hienton had not informed him of the local union’s activities in challenging the employer.

 

            Thompson told our investigator that Soehl phoned him on the evening of April 13 to complain that the release had been posted without his approval and to request that it be taken down.  Thompson contacted Caldwell to do so, telling our investigator that Soehl’s request was valid because the release had not been approved.

 

            Caldwell complied with Thompson’s directive and notified the local union that he had been instructed to take the release down.  By the time of this action, nothing could be done to retrieve the releases sent to media or IBT affiliates.

 

            The next day, April 14, 2020, the local union issued the release itself, posting it to the local union’s social media and sending it to area media outlets.  Soehl learned of this action as well and contacted Hienton to ask the local union to remove the release from its social media.  Hienton reached Bill Wedebrand, secretary-treasurer of Local Union 120, and asked him to remove the release.  Wedebrand complied.  According to both men, no explanation was requested or given during their phone conversation for removing the release.

 

            Thompson told our investigator that the reason division directors must approve press releases involving an employer under a national contract is to ensure that the publicity does not interfere with ongoing efforts or strategy a director may be pursuing with that employer.  The release concerning the call center was a surprise to Soehl and came at a time when he was involved in sensitive dealings with YRCW, pandemic-related and otherwise, that the release could have put at risk.  Accordingly, had he been consulted, Soehl would not have approved the release for this reason.  When it was issued without consulting him, he moved to have it taken down immediately.  Hienton told our investigator that he asked the local union the next day to pull the release from its social media for the same reason.

 

            The local union’s efforts, first through IBT Communications and then on its own, nonetheless accomplished its goals.  First, YRCW implemented procedures to reduce infection risk, to the benefit of the local union’s members.  Second, the local union was seen by its members as standing up for them in a perilous time.

 

            Principal officer Erickson declared as a candidate for IBT Central region vice president on February 26, 2020 and is a member of the O’Brien-Zuckerman slate.  He told our investigator that two candidates for Central region VP on the Teamster Power slate declared their candidacies the same day Local Union 120’s press release was pulled down from the IBT website.  He asserts that the YRCW press release was removed because the IBT favors the Teamster Power slate.  IBT witnesses denied to our investigator any political motivation behind pulling the release from the IBT website and the local union’s social media. 

 

Analysis

 

            This “reach back” protest is filed pursuant to Article XIII, Section 2(a) because each of the alleged violations occurred before the effective date of the Rules.  Under this provision, the Election Supervisor may consider only whether the conduct violated the LMRDA or the IBT Constitution and may not consider whether the Rules have been violated.

 

            The protestor identified five instances it said showed discriminatory animus by the IBT based on candidacy in the International officer election.  This display of animus is said to constitute impermissible use of union funds to support or oppose a candidate, in violation of LMRDA Section 401(g).  The protestor cited the request for a partnership agreement in the Sysco Boston organizing effort, the investigation of the campaign cruise, the editing of the Sysco Boston press release, the treatment of O’Brien’s protest concerning the edited release, and the pulling of the YRCW press release as proof of IBT discrimination based on candidacy.  These actions, the protestor asserted, constituted use of union assets to “(1) smear and discredit the O’Brien-Zuckerman Campaign; (2) suppress the O’Brien-Zuckerman Campaign and its candidates’ free speech rights; and (3) assist, support and promote candidates to run against the O’Brien-Zuckerman Campaign, including the Vairma 2021 Campaign.”

 

            We address the protestor’s contentions as follows.  With respect to the partnership agreement, we find no evidence that the agreement was requested because of O’Brien’s candidacy or for a purpose to manipulate O’Brien or cause him embarrassment related to his candidacy.  The IBT has an uneven history of obtaining written partnership agreements, often requesting them but sometimes not, and the decision to seek one appears discretionary.  Here, it was requested late in the organizing drive, but it came at a time when significant funds and resources were still required to support the campaign for a representation vote.  In requesting it, the IBT made clear that it sought not to be the only source for the funds and staffing still needed.  O’Brien, surprised by the request for a formal agreement, refused to sign it.  In response, the IBT did not abandon the organizing drive or threaten to do so.  Instead, it asked that the joint council and local union agree orally to supply lost-time organizers and to fund the get-out-the-vote mailing, and that the joint council lend its webpage to the organizing effort.  Both agreed.  With this, Rosell reported to the IBT that, although O’Brien refused the written partnership agreement, the sharing of work and expense among the IBT, joint council, and local union would continue.  The result of this shared effort, as O’Brien subsequently declared in the press release quote, was that the drive was “a joint effort that began with the Sysco workers and ran through the staffs of Local 653 and Joint Council 10, International Organizer Chris Rosell and the Organizing Department as well as local unions around the country, including Local 120.  Everyone chipped in to ensure that Massachusetts Sysco workers will have a voice at work.” 

 

Notably, the protestor does not contend that the request that the affiliates supply additional organizers or that the sharing of expenses between the International and its affiliates, which the parties did willingly, violated Section 401(g).  Rather, it argues that the violation lay in Rosell’s request that O’Brien sign a document to that effect.  We reject that argument.  We find nothing improper here in the IBT’s request for a signed partnership agreement, especially where it continued to push the organizing drive based on an oral agreement to share expenses and effort even after O’Brien refused to sign.  We specifically conclude that the request for a written partnership agreement was unrelated to O’Brien’s candidacy for General President.

 

We now turn to the protestor’s contention that the IBT’s investigation of the funding of the campaign cruise was an impermissible use of union resources.  This investigation opened in response to a protest based on O’Brien’s words thanking “the great staff at Local 25,” who “make events like this happen.”  Had O’Brien thanked “volunteers” or “friends” rather than the local union staff identified as such – or had he thanked local union staff members “who volunteered their time and effort” – there would have been little cause for inquiry and perhaps not even a protest.  However, where O’Brien declared that the staff of the local union, identified as such, made the event occur, and where the campaign deleted that statement from the video posted to its Facebook page, a reasonable basis existed to inquire whether union funds were used to support the event.  Between electoral periods, the IBT has the right to investigate violations of the LMRDA, which it did, concluding that the effort to put on the campaign cruise was made solely by volunteers.  We reject the protestor’s contention that the IBT’s investigation of the circumstances was unwarranted, finding to the contrary that it constituted a reasonable exercise of responsibility under the LMRDA.

 

The facts relating to the preparation and publication of the Sysco Boston press release were undisputed.  There, a release containing a quote from O’Brien was submitted to IBT Communications to be issued, it was issued without the quote, and then it was reissued less than an hour later with the quote.  Caldwell believed that including the O’Brien quote, made in his capacity representing the joint council, was out of the norm.  He sought guidance from Thompson, the executive assistant to the General President, who asked what is usually done for the report of an organizing win.  When Caldwell explained that using such a quote is not typical but not unusual, Thompson told Caldwell to take the quote out.  When the release issued without the quote and O’Brien complained, Thompson, learning of the complaint from Caldwell and, in addition, the significant role Joint Council 10 had played in the win, instructed that it go back in the release.  We find no evidence that O’Brien’s status as a declared candidate for General President played any consideration in the decision-making.  That Caldwell was prompted to ask Thompson about the release because O’Brien had been replaced as IBT Package division director a year earlier is not evidence of discrimination based on candidacy.  Accordingly, we reject the protest’s two contentions rising from these circumstances – that the decisions concerning the release violated Section 401(g) and that the investigation the IBT conducted of O’Brien’s protest about the release was discriminatorily inadequate.

 

Finally, the IBT’s treatment of the press release involving Local Union 120’s members employed by YRCW did not violate Section 401(g).  There, the local union pursued the press release to protect its members.  Freight director Soehl asked that it be taken down from the IBT’s website for the same reason, to protect members employed at YRCW by not jeopardizing initiatives and strategies he was pursuing with the employer.  No evidence was presented or found that Erickson’s candidacy – or the candidacies of others from the slate that opposes the protestor – played any role in the decision to pull the release from the IBT website.  While Erickson offers speculation to that effect, speculation is not evidence.

 

            For the foregoing reasons, we find no evidence of a violation of LMRDA 401(g) and therefore 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.  Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i).  All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor.  Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

 

Barbara Jones

Election Appeals Master

IBTappealsmaster@bracewell.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, all within the time prescribed above.  Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision.  A copy of the protest must accompany the request for hearing.

 

                                                                  Richard W. Mark

                                                                  Election Supervisor

cc:        Barbara Jones

            2020 ESD 2

     

DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):

 

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

braymond@teamster.org

 

Edward Gleason

egleason@gleasonlawdc.com

 

Patrick Szymanski

szymanskip@me.com

 

Will Bloom

wbloom@dsgchicago.com

 

Tom Geoghegan

tgeoghegan@dsgchicago.com

 

Kevin Moore

Mooregp2021@gmail.com

 

F.C. “Chris” Silvera

fitzverity@aol.com

 

Ken Paff

Teamsters for a Democratic Union

ken@tdu.org

Peter Marks

pmarks@ibtvote.org

 

Jim Devine

jdevine@ibtvote.org

 

Jeffrey Ellison

EllisonEsq@gmail.com