O'Brien-Zuckerman 2021, 2021 ESD 130
OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: O’BRIEN-ZUCKERMAN 2021, ) Protest Decision 2021 ESD 130
) Issued: July 16, 2021
Protestor. ) OES Case Nos. P-134-041321-NE,
____________________________________) P-135-041321-NE & P-137-042021-FW
O’Brien-Zuckerman 2021, a slate of candidates for International office, filed 3 pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”).
The protest in Case No. P-134-041321-NE alleged that Local Union 456 violated the Rules by renting space to the Teamster Power slate for an event held April 11, 2021, without giving advance written notice of its availability to all candidates for International office.
The protest in Case No. P-135-041321-NE alleged that Local Union 282 violated the Rules in the same manner alleged against Local Union 456, on September 13 and October 29, 2020, and January 28, 2021.
The protest in Case No. P-137-042021-FW alleged that Local Union 2 committed the same violation for an event held April 20, 2021.
Each protest alleged that the Teamster Power slate violated the Rules by obtaining use of the space without insuring that advance written notice of the availability of the space was given to other known candidates for International office.
Election Supervisor representative Peter Marks investigated the protests involving Local Unions 456 and 282; Deborah Schaaf investigated the protest involving Local Union 2. The protests were consolidated for decision.
Findings of Fact
Local Union 456 – April 11, 2021
Local Union 456 occupies a building on S. Central Avenue, Westchester County, Elmsford NY. The building includes the John Acropolis Memorial Auditorium. Although the glass-sheathed, low-slung building is prominently signed “Headquarters – Teamsters Local 456,” the local union is a tenant in the building, not its owner. The building owner and landlord is “456 South Central Holdings, Inc.,” which itself is a wholly owned subsidiary of the Westchester Teamsters Pension Fund, a joint labor-management trust organized under the Taft-Hartley Act. The lease gives the local union exclusive use and control of approximately 6,800 square feet of office space. The local union pays rent on an additional 1,200 square feet, which the lease designates as a “1/3 share of Auditorium,” permitting the local union to use the auditorium periodically without incurring an extra rental fee. Otherwise, the auditorium is controlled by the landlord and is rented to the public.
The landlord also rents office and professional space to the pension fund, the Westchester Teamsters Health & Welfare fund (another Taft-Hartley trust), a family dental practice, and a local union of the Civil Service Employees Association.
The Teamster Power slate, through Bernadette McCulloch Kelly, a candidate on that slate, contacted the property manager to inquire about renting the auditorium for a campaign event. The property manager is not an officer or employee of the local union. Kelly told our investigator that in the 2016 election cycle she had followed the same procedure and rented the auditorium for a campaign event for the slate she then supported. In the current cycle, a rental was agreed upon for April 11, 2021, and the rental sum of $300 was paid.
Local Union 456 did not rent the auditorium to the Teamster Power slate. Local Union 456 did not give notice to candidates for International office that the auditorium was available for rent.
Local Union 282 – September 13, 2020; October 29, 2020; January 28, 2021
Local Union 282 occupies a suite of offices in a 3-story building situated in an office park. In addition, it uses the loading dock and a tractor-trailer rig it parks on site to train members to fill jobs with employers under its jurisdiction. The office space is owned under a condominium agreement by the Local 282 Building Trust Fund. The Fund leases the space to Local Union 282. The building houses a number of other occupants unrelated to the local union or any Taft-Hartley trusts associated with the Teamsters. The building and the parking lot that surrounds it are managed by a property manager under contract to the condominium association to which the owners of the spaces within the building belong. The parking lot is established and maintained for use by the occupants of the building and their invitees. It is generally not made available for parking of vehicles or holding of events unrelated to the building occupants. However, evidence established that individuals unassociated with the building park their vehicles in the surrounding parking lot for such activities as taking exercise and walking their pets. The property manager told our investigator that the management company does not monitor or patrol the parking lot; instead, it gives attention to the lot and vehicles parked there only in response to complaints it may receive.
The principal officer of Local Union 282 is Thomas Gesualdi, who is a candidate for East region vice president on the Vairma-Herrera Teamster Power slate. On Sunday, September 13, 2020, the Gesualdi campaign held a rally in support of his candidacy in the parking lot surrounding the building that houses Local Union 282’s offices. The campaign set up several pop-up tent canopies in the parking lot, and Gesualdi and other candidates and supporters addressed those who attended. The event occurring on a Sunday, the local union office and the other occupants of the building were closed for business, per their usual schedules. The Gesualdi campaign posted information and photos about the event on its Facebook page the same date the event occurred. In addition, it reported the contributions and expenditures associated with the event on its period #2 CCER report, filed in February 2021 and disseminated to the protestor slate and its counsel on February 20, 2021.
The Gesualdi campaign held subsequent events in the same parking lot on October 29, 2020, and January 28, 2021. In contrast to the event held September 13, 2020, these later events were held immediately after a regularly scheduled general membership meeting the local union conducted those days. Posts about these events also were made to the Gesualdi Facebook page and reported in the period #2 CCER report.
Local Union 2 – April 20, 2021
Local Union 2 maintains its offices in Butte MT. It and 6 other non-Teamster labor unions are shareholders in the Gallatin Labor Temple, a regional and historic hall that has been used to promote labor and progressive causes over many decades.
The Gallatin Labor Temple is located in Bozeman MT, some 85 miles distant from Local Union 2’s hall. The facility houses a radio station and an office of the Bozeman fire fighters union; otherwise, it is available for rent to the public for graduation events, concerts, meetings, fundraisers, and the like, with priority given to unions. No written policies govern use of the hall. Its availability is said to be well-known to trade unionists, progressives, and their allies throughout Montana and surrounding states. The hall has been used less frequently in more recent times, but the rental fee income generally is sufficient to cover taxes, insurance, and maintenance costs from year to year. On infrequent occasions, shareholders are asked to split the cost of expenses that exceed revenues.
Use of the hall for events sponsored by any of the labor union shareholders is free of charge to that shareholder. Users other than the shareholders are charged rent of $50 for events of less than 6 hours’ duration and $150 for longer events.
Steve Vairma, candidate for General President on the Teamster Power slate, appeared at the Gallatin Labor Temple on April 18, 2021. Vairma was in the state for a non-campaign event in Billings related to his official duties on April 17. Two members of Local Union 2 learned of Vairma’s impending visit about a week before he traveled there; they agreed this visit would be an opportunity for the local union’s members to meet a candidate for IBT General President. These members contacted Vairma, who agreed to appear on April 18. The members of Local Union 2 initially determined to have the event at Local Union 2’s hall in Butte. They moved the event to the Gallatin Labor Temple instead, concluding it was more centrally located to the local union’s members.
They reserved the hall under the name of Local Union 2. No rental charge was incurred because of the local union’s status as a shareholder. The members provided refreshments from personal funds, and no union funds were used for the event, including for publicity. The event was scheduled for and lasted less than 6 hours. Some 23 members of Local Union 2 attended, although no sign-in sheet was used to document the attendance. Vairma addressed the group as a candidate for International office. No campaign contributions were received at or associated with the event.
Local Union 2 representatives told our investigator they were unaware of the obligation to provide advance written notice of the availability of union facilities to all candidates for International office. Neither Vairma nor any person associated with his campaign informed them of the obligation or made any inquiry concerning whether advance written notice had been given.
Analysis
Article VII, Section 12(c) of the Rules states that union facilities “may not be used to assist in campaigning unless the Union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance.” This provision is intended to insure that the union as an institution does not discriminate for or against a candidate. It accomplishes this goal with an explicit non-discrimination provision and, for those unions willing to allow their facilities to be used to host campaign events, it requires that all candidates be notified of the facility’s availability. The local union that fails to comply with this provision makes an impermissible contribution to the candidate to whom it rents its facilities. Article XI, Section 1(b)(3). The candidate who accepts the contribution violates this same provision as well as Article XI, Section 1(b)(13), which makes the candidate strictly liable for impermissible contributions. Because a failure to provide the required advance written notice will result in Rules violations by both the local union and the candidate, we have urged unions and candidates discussing use of union space for a campaign purpose to work collaboratively to insure that the facilities are made available on a non-discriminatory basis and that opposing candidates are informed of the availability in advance of the first rental. Gegare, Slawson & Zuckerman, 2010 ESD 20 (August 15, 2020). Appropriate remedies for violations of this nature include, for the union involved, dissemination of written notice to all candidates of the availability of the union facility for campaign purposes; for the involved candidate, the remedy includes an affirmative obligation to insure that proper advance notice is given before contracting for use of the union facility and, in the appropriate case, refunding of contributions received at the event that violated the Rules.
The obligation to provide advance written notice of availability of union facilities applies to space owned or controlled by the union, unless a Rules provision obviates the need to provide the notice, a subject we discuss below. The obligation does not extend to entities owned or controlled by joint labor-management funds or other entities that are neither the IBT, a joint council, a state conference, or a local union. See Rules, Definition 45 (“Union” means the International Union, all Local Unions and all other subordinate bodies of the International Union, unless explicit distinction is made”).
With these principles outlined, we turn now to the specifics of these cases. In the matter involving the use of the Acropolis Auditorium inside the building occupied by Local Union 456 and other entities, the local union did not rent or provide the space to the Teamster Power slate, nor did it have the authority to do so. The owner and landlord of the facility is not the local union; rather, it is a fund not regulated by Article VII, Section 12(c) of the Rules. Any person, including a candidate for International office, was and is free to contract with the property manager for use of the auditorium and, because the local union does not control the space or have authority to make it available for use, the local union is under no obligation imposed by Article VII, Section 12(c) to give advance notice of its availability to other candidates. Candidate Kelly was aware that the auditorium could be rented based on her experience in a previous election cycle. Neither she, the Teamster Power slate, nor the fund violated the Rules by renting the space without insuring that opposing candidates were notified of its availability.
The use of the parking lot surrounding the building in which Local Union 282 rents office space implicates provisions of the Rules other than Article VII, Section 12(c). Three campaign events were held in that parking lot. Two of them were held immediately after a local union general membership meeting. Article VII, Section 12(a) permits campaigning “outside a meeting hall,” which would include a parking lot used by the union, “before, during, and after a Union meeting, regardless of Union policy, rule, or practice.” As alluded to above, this provision provides an exception to the requirement of Article VII, Section 12(c) because the Rule gives notice to all candidates that campaigning may occur outside the Union hall at and around meetings, that no discrimination in access will be tolerated during such times, and that the campaign access will be permitted without cost to the campaigners. When members are gathering at the union hall for union business or a union function, the rules protect the right to have access to area adjacent to the meeting in order to campaign. Accordingly, the campaign events Gesualdi and other candidates held on October 29, 2020, and January 28, 2021, were expressly permitted by and did not therefore violate the Rules because they were held in the parking lot immediately after union membership meetings.
The event held Sunday, September 13, 2020, requires a different analysis. First with respect to the local union’s obligations, if any, under the Rules, the event (like the October and January events) was held in the parking lot of the building where the union has its offices, but the parking lot was the property of the condominium association and not the union. For the same reason discussed above with respect to Local Union 456, the dictates of Article VII, Section 12(c) did not require that Local Union 282 provide advance notice to candidates that the space was available for campaign use because the space was not the union’s to make available. No other provision imposed an obligation on the union with respect to this event.
We briefly consider whether use of the parking lot implicates any other provisions of the Rules. Unlike the later events in October and January, the September event was not held in conjunction with a membership meeting, and the campaign therefore did not have the protection of Article VII, Section 12(a) to hold a campaign event in the parking lot. Nor could the campaign rely on the general parking lot access rule of Article VII, Section 12(e) as authorization to campaign in that lot. Granting that the Rule would protect campaigning to Local Union 282 member-employees in that parking lot, that protection would be available “only during hours when the parking lot is normally open to employees.” The September 13 event was held on a Sunday, a day the local union offices were closed for business. The campaign, therefore would not have protected access to the parking lot for the Sunday event under the Rule covering employer parking lots.
Given this, nothing in the Rules authorized the Sunday campaign activity in the parking lot and/or overrode employer property rights. The campaign’s September 13 event in the parking lot had no protection under the Rules. Neither, however, did the September 13 event violate any rule. The condominium association that owns the grounds is not an “employer” under the Rules because it does not employ anyone. The association simply owns the property and contracts with a real estate management company to manage and provide services to the building and its occupants. For this reason, the campaign use of the parking lot did not constitute an involuntary employer contribution to the campaign, in violation of Article XI, Section 1(b)(2), which prohibits employer contributions to a candidate, including involuntary and unknowing ones. Further, investigation showed no interaction whatsoever between the organizers of the event and the property manager, and we conclude from this evidence that the organizers neither sought nor obtained permission for use of the lot nor leveraged the local union’s status as a building occupant to secure such permission.
With respect to the use of the Gallatin Labor Temple for the April 18, 2021 event, the campaign violated the Rules by failing to contract directly with the Temple for use of the space, at a rental fee of $50. The campaign’s rental of the Temple would not have been an event that implicated Article VII, Section 12(c) if the campaign had engaged with the Temple’s scheduler as an outside group that sought use of the facility. However, by making the arrangements through the local union (or permitting the local union to make the arrangement directly on the campaign’s behalf), the campaign gained the discount – to $0 – that was accorded to Local Union 2 as a shareholder in the Temple. This discount was a union asset that could be utilized by the campaign only if the local union gave advance written notice to all candidates that it could arrange use of the Temple for a campaign event without rental cost. This the local union did not do, and the Rules were accordingly violated.
Although the Gallatin Labor Temple event was a campaign event, featuring the appearance of the campaign’s candidate for General President, no campaign contributions were generated as the result of it.
In summary, we DENY the protest in Case No. P-134-041321-NE involving Local Union 456. We DENY the protest in P-135-041321-NE involving Local Union 282. Finally, we GRANT the protest in P-137-042021-FW.
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).
With respect to the protest in P-137-042021-FW, we order Local Union 2 to cease and desist from permitting its discount for use of the Gallatin Labor Temple to be used by any campaign unless it gives advance written notice to all campaigns of the availability of the discount. We order the respondent campaign to pay the rental fee of $50 customarily charged by the Gallatin Labor Temple to non-shareholders to the Temple no later than Wednesday, July 21, 2021; the campaign must supply a declaration of compliance to OES by the same date. We order no disgorgement of campaign contributions generated as a result of the Temple event because there were none.
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
2021 ESD 130
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
Rob Colone
rmcolone@hotmail.com
Barbara Harvey
blmharvey@sbcglobal.net
Fred Zuckerman
fredzuckerman@aol.com
Ken Paff
Teamsters for a Democratic Union
ken@tdu.org
Scott Jenkins
scott@oz2021.com
Teamsters Local Union 456
Louis Picani, President
louispicani@teamsterslocal456.com
Teamsters Local Union 282
Thomas Gesualdi, President
tgesualdi@teamsterslocal282.com
Teamsters Local Union 2
info@teamsterslocal2.org
Peter Marks
pmarks@ibtvote.org
Deborah Schaaf
dschaaf@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com