Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: TEAMSTER POWER,                    )           Protest Decision 2020 ESD 3

                                                                        )           Issued: July 3, 2020

Protestor.                                           )           OES Case No. P-006-062220-NE

____________________________________)

Teamster Power, a slate of candidates for International office, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that O’Brien-Zuckerman 2021 slate campaign stickers were impermissibly affixed to employer and union property at worksites in Boston MA.  The protest further alleged that campaigners violated the parking lot access rule by campaigning at August A. Busch without giving advance notice.[1]

Election Supervisor representative Peter Marks investigated this protest.

Findings of Fact and Analysis

Investigation confirmed the protest’s allegations that a variety of campaign stickers were affixed to assets at employer worksites, including a forklift at the Boston Convention and Exhibition Center (BCEC), a toolbox at Boston Sand and Gravel, and a pallet of beer at August A. Busch.  In addition, at Martignetti Distributors, campaign stickers were affixed in the rear windows of several delivery trucks, on a forklift, on the door of an employee locker, and on tableware and napkin dispensers in an employee breakroom.  Finally, stickers were affixed to the union bulletin board and a two-drawer, locked filing cabinet used by Local Union 25 at Martignetti.

All stickers were removed by June 27, 2020, except for the stickers at Boston Sand and Gravel, where the toolbox to which they were affixed was determined to belong to a member and not the employer.  O’Brien-Zuckerman 2021 representatives acknowledge that their campaigners provided the stickers to members who work at the facilities in question.  They denied instructing or encouraging that the stickers be posted on employer or union assets and claimed no knowledge that the posting had occurred until the protest was filed and served.

Generally, the posting of campaign material on employer property violates the Rules.  Hoffa-Hall 2016, 2016 ESD 64 (January 8, 2016).  As Election Officer Quindel said in Hoffa, P-1073-IBT-MOI (October 16, 1996):

Putting such material on an employer’s truck or equipment has the effect, under the Rules, of causing the employer to make an improper campaign contribution, in violation of Article XI, Section 1(b)(2), even if the affixing of the sticker was against employer policy.  Putting stickers on employer trucks or equipment can also create a false impression of employer endorsement, which would be another form of improper campaign contribution.  See Feeley, P-874-LU817-MGN (September 17, 1996); Maney, P-956-IATSE-NYC et seq. (October 2, 1996), aff’d, 96 Elec. App. 251 (KC) (October 15, 1996); Knox, P-1006-SFD-MGN (October 14, 1996).

Furthermore, under Article XI, Section 1(b)([13]) of the Rules, International officer candidates “are strictly liable to insure that each contribution received is permitted under the Rules.”  Therefore, affixing a campaign sticker or sign to an employer truck or other piece of equipment results in a violation of the Rules on the part of the candidate who the member intends to support.

For these reasons, affixing campaign stickers to the forklift at BCEC, the forklift, trucks, and breakroom property at Martignetti, and the pallet of beer at August A. Busch violated Article XI, Sections 1(b)(2) and (9) of the Rules as impermissible use of employer property to campaign and impermissible receipt by the O’Brien-Zuckerman 2021 slate of that use.

For similar reasons, posting of campaign material on union property violates the Rules.  Hoffa-Hall 2016, 2015 ESD 31 (August 30, 2015).  Election Administrator Wertheimer addressed campaign stickers on union property in Black, 2001 ESD 338 (May 1, 2001): 

Use of union fixtures for a campaign display also violates the provision of Article VII, Section 12(c) barring use of “Union … facilities ... to assist in campaigning.”  Further, display of the stickers on local property violates Article XI, Section 1(a)(3), which prohibits a candidate from receiving campaign assistance from a union. 

The posting of stickers on the Local Union 25 filing cabinet at Martignetti therefore violated the Rules.

With respect to the local union bulletin board at Martignetti, we find that it was reserved exclusively for posting of union notices and the vacation bid schedule for Local Union 25 members employed at the site.  Because no practice existed that permitted posting of anything other than official notices, there is no right to post campaign literature on the bulletin board. Lambert, P359 (February 26, 1996); Bolen, 2006 ESD 73 (February 7, 2006); Deaver, 2006 ESD 74 (February 7, 2006).  Posting of a slate’s campaign material on a bulletin board reserved for official notices improperly signals that the union favors that slate, which violates the Rules.

Protestor also contends that O’Brien-Zuckerman 2021 campaigners violated the Rules by not giving “as much advance notice as possible” before campaigning in the employee parking lot at August A. Busch.  The slate supporters campaigned there pursuant to Article VII, Section 12(e), which grants a presumptive right of access to employee parking lots for campaigning.  Protestor argues that Eckstein, PR-208-AB-EOH (October 6, 1998) limits that right by requiring campaigners at facilities operated by Anheuser-Busch to give advance notice of at least 24 hours.  Protestor alleged that O’Brien-Zuckerman 2021 campaigners did not give such notice.  We reject protestor’s submission on two grounds.  First, Eckstein applied to the 1998 rerun of the International officer election.  In each election cycle since 1998, Anheuser-Busch has sought, and the Election Administrator or Supervisor has granted, terms similar to those detailed in Eckstein.  Anheuser-Busch has not sought such terms in the current election cycle, and they are not in effect.  Therefore, the campaigners were under no obligation to give advance notice.  Second, under Cobb, 01 EAM 100 (October 19, 2001), to state a viable protest concerning campaign access to employer premises, a candidate or campaigner must affirmatively establish that he/she specifically sought access on similar terms to those the employer granted an opposing candidate or campaigner and was denied access.  Here, Teamster Power cannot state a viable protest that O’Brien-Zuckerman 2021 was granted or obtained illegitimate access to the August A. Busch parking lot because it has not sought similar access for its candidates or campaigners and been denied.

For the foregoing reasons, we GRANT the protest with respect to campaign stickers on employer and union assets and DENY it concerning O’Brien-Zuckerman 2021

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 have often held that the prompt removal of the improperly posted campaign material on employer property is sufficient remedy for the protest.  Hoffa-Hall 2016, 2016 ESD 64 (January 8, 2016). 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).  “Immediate removal ends any potential impact of the improper campaigning.”  Hoffman, P-1050-LU817-NYC (October 218, 1996); Sweeney, P-1029-RCS-NYC (October 28, 1996).  This approach recognizes that “International officer candidates and slates have an obligation to take reasonable steps to ensure that their campaign materials are not affixed improperly to private property . . .”  Sweeney, supra; Willett, P-863-LU331-PNJ (August 16, 1996); Knox, P-1046-LU337-MOI (October 30, 1996). 

At a minimum, the Election Supervisor “expects International officer campaigns, when they receive notice of protests involving campaign material improperly affixed to employer property, to take their share of responsibility for ensuring that such materials are removed promptly.”  Sweeney. 

However, we expect more.  Candidates for any union office should be fully familiar with the rule against these types of postings, which is not unique to the International officer election.  Yet, protests alleging improper posting of campaign stickers on employer assets have been a feature of every election cycle.  Slates purchase the stickers and distribute them to supporters.  If slates do not actively encourage posting of the stickers in the workplace – and O’Brien-Zuckerman 2021 asserts that it did not – history teaches that the slates must anticipate that such posting is highly likely to occur.  The slate benefits from this improper promotion until the stickers are discovered, a protest is filed, and the offending slate then organizes supporters to remove the stickers.  Here, five days passed between the time the protest was filed and the stickers were removed.  It is unknown how long the stickers were in place before Teamster Power discovered them. 

While the respondent slate benefits from these violations, these violations impose costs.  First, the protestor bears consequences from the improper advantage its opponent gained from the violations.  Second, the Office of Election Supervisor is required to devote resources (at ultimate cost to the IBT) to investigate decide this protest. 

            Based on the foregoing – and for this violation only – we accept as full remedy the removal of the stickers from employer and union assets described in this decision, which has already been accomplished.

            However, should we find, going forward, that O’Brien-Zuckerman 2021 supporters have impermissibly posted campaign stickers on employer or union property despite the warning this decision gives, the investigation will assess the steps O’Brien-Zuckerman 2021 took to inform supporters regarding the proper and improper use of campaign stickers.  A more comprehensive remedy for such future violation, possibly including an assessment of remedial costs, will depend on whether the campaign took reasonable steps to avert the violation.

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 3

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

Jeffrey Ellison

EllisonEsq@gmail.com