O’Brien-Zuckerman 2021, 2020 ESD 7

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: O’BRIEN-ZUCKERMAN 2021,   )           Protest Decision 2020 ESD 7

                                                                        )           Issued: July 15, 2020

Protestor.                                           )           OES Case No. P-011-070720-SO

____________________________________)

O’Brien-Zuckerman 2021, 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 Teamsters Local Union 988 violated the Rules by permitting the Teamster Power slate to link to a photo on the local union’s Facebook page, and Teamster Power violated the Rules by establishing the link.

Election Supervisor representative Dolores Hall investigated this protest.

Findings of Fact

Teamsters Local Union 988 represents more than 6,000 members across Texas, many of whom are front-line workers who have worked and continue to work during the COVID-19 pandemic.  The local union maintains a public Facebook page and other social media to provide information to its members and the public concerning its activities and issues of interest.  The local union has undertaken to provide cloth facemasks to its members for their protection.  On June 30, 2020, business agents distributed the facemasks at the Stafford TX UPS facility.  While there, they encouraged members to download a local union app to their smartphones.  Accessing the app gives members contact information for their stewards and business agents, advice concerning safety precautions, information on positions their government leaders have taken on issues of concern, and other information. 

Jordan Rivers, a communications employee of the local union, took photos of the business agents distributing the masks and assisting members with the app download.  She posted seven of them the same day to the local union’s Facebook page and other social media.  Each photo posted originally to a Facebook page is labeled automatically by Facebook with the name and profile photo of Facebook page holder and the date it is posted[1]; the poster also has the option of adding a caption.  For the photos Rivers posted to the local union Facebook page on June 30, Facebook labeled them “Teamsters Local Union No. 988,” the name of the Facebook page, and included the page’s profile photo, a red-white-and-blue 5-point Texas star on which is superimposed the horses-and-wheel logo, surrounded by concentric circles bearing the name and city of the local union.  Rivers added a caption to the photo that stated merely “In Stafford, Texas.”  Facebook recognized Stafford TX as a location and created a hyperlink to a “things to do in Stafford Texas” Facebook page, which listed restaurants and events available there but did not mention the local union or UPS.

Robert Mele is principal officer of Local Union 988 and a candidate for IBT South region vice president on the Teamster Power slate.  He maintains a personal Facebook page that can be viewed by the public.  He told our investigator that he saw the photos on Local Union 988’s Facebook page of business agents distributing masks and assisting members with app downloads.  He clicked the “share” button for one of the photos in the early morning hours of July 1, and it appeared in the timeline of his personal Facebook page. 

The photo he shared depicted local union business agents Chris Solis and Larry Ehrlich standing at a table at the UPS facility in Stafford TX.  Both were wearing black facemasks bearing the IBT horses-and-wheel logo and “988.” An unidentified woman stood across the table from Solis, using her smartphone.  The photo as it appeared in Mele’s timeline still displayed the label “Teamsters Local Union No. 988” and local union profile photo that accompanied the original posting on the local union Facebook page.  Mele did not add a caption when he shared the photo to his personal Facebook page.

Phil Hayes is employed by Teamster Power and is based in Denver CO.  On July 6, 2020, he reviewed Mele’s personal Facebook page and saw the photo of the business agents.  Hayes told our investigator that he believed – mistakenly, as he would learn – that the photo depicted Teamster Power supporters soliciting accreditation petition signatures.  He shared the photo from Mele’s personal Facebook page to the Teamster Power slate Facebook page.  In doing so, the photo retained the Teamsters Local Union No. 988 label and profile photo, which were hyperlinked to the local union’s Facebook page.  Hayes added a caption that reflected his belief that the photo showed campaign activity.  The caption read: “@teamsterpowerslate hitting the Lone Star State!  Thanks to our volunteers!  www.teamsterpowerslate.com/petitions/.”  Hayes had no communication with Mele before sharing the photo to the Teamster Power Facebook page.

The instant protest was filed July 7, 2020 at 10:11 p.m. EDT.  We acknowledged receipt of the protest by emailing it to all interested parties that date at 10:38 p.m. EDT (because of the need to correct an incorrect address for Mele, the protest was emailed to him a minute later, at 10:39 p.m. EDT).  Mele told our investigator that he reviewed the Teamster Power Facebook page on July 7, 2020 at 7:41 p.m. CDT (8:41 p.m. EDT, approximately two hours before he received the protest), noted the photo, and immediately contacted Hayes to tell him that the photo caption mischaracterized what the photo depicted.  Hayes removed the photo at 6:45 p.m. MDT (8:45 p.m. EDT), before the protest was filed or acknowledged.

Analysis

            Protestor urges that Local Union 988 violated the Rules “by authorizing and allowing the Vairma Slate [Teamster Power] to post and link Local 988’s official Facebook website for the purpose of proving the false impression of an improper union endorsement of the Vairma Slate.”  Protestor further contends that Teamster Power violated the Rules by linking to the photo on the local union Facebook page and thanking volunteers for petitioning in the local union’s jurisdiction.

            In its default settings, Facebook permits a user to react to a post that appears on another’s Facebook page with a “like,” a “comment,” or a “share.”  The “share” function takes its name from the ability of a Facebook user to share with the user’s friends, followers, and others a post, video, or photo that originally appeared on another user’s Facebook page.  When clicking “share” on a photo that appears on another user’s page, the Facebook user adds the photo to his/her own timeline and has the option to add a caption as well.  When doing so, the Facebook page name and profile photo (and hyperlinks to them) where the item was originally posted are carried forward to the timeline of the user who has clicked the “share” button.

            The three Facebook pages at issue in this protest have maintained the default settings that permit items on their timelines to be shared to other Facebook pages.  Protestor contends that Local Union 988 violated the Rules by permitting the photo of the business agents distributing masks to be shared. 

            We first address the propriety of the campaign using the photo of the business agents.  The photo, taken by an employee of Local Union 988 and posted to the local union’s Facebook and other social media accounts, is a union asset because it was created using union resources.  Article XI, Section 1(b)(6) declares that a candidate may not use union-owned “things of value” unless the union has given advance written notice of the availability of them for campaign use and is compensated for their fair market value.[2]  In Laszlo, 2011 ESD 87 (January 27, 2011), we considered an allegation that a candidate’s use of photos published to the IBT website violated this provision.  We found as fact that the IBT did not copyright its website, and it treated the contents there as available for download by anyone without compensation to the IBT.  We held that the lack of a copyright notice on the website permitted all candidates to conclude that the photos posted there were available for use without compensation to the union.  We reach the same conclusion here.  The presence of the “share” button in conjunction with the photo of the business agents not only establishes that all Facebook users, candidates included, may share the photo and its accompanying source information into their own timelines without compensation to the union, and it also serves as the “advance written notice” of availability that the rule requires. 

            Here, Teamster Power shared the photo in question from Mele’s personal Facebook page and not from the local union’s.  This fact does not alter our analysis.  Even had the campaign shared the photo to its users directly from the local union’s Facebook page, the presence of the “share” button on the local union’s page granted that permission without compensation and with advance notice to all users.  For these reasons, we find no violation of Article XI, Section 1(b)(6).

            We turn now to the protest’s central allegation that Teamster Power’s captioning of the photo impermissibly conveyed the false impression that Local Union 988 endorsed the campaign. 

            The Rules categorically prohibit a union from endorsing a candidate or slate.  Article VII, Section 12(b) provides: “The Union or a Local Union as such or the General Executive Board or an Executive Board of a Local Union as such may not endorse or otherwise advance a candidacy, even if all members agree on the endorsement or candidacy.”  In Pope, 2000 EAD 3 (August 1, 2000), Election Administrator Wertheimer held that the formal resolution of the IBT’s regional construction trades division endorsing a candidate violated the Rules.  In Custer, P1098 (November 18, 1991), Election Officer Holland held that a union notice announcing that “Teamsters Local 673’s Executive Board Unanimously Endorse the Shea-Ligurotis Action Team” violated the Rules.  See also Gebow, P963 (October 14, 1991), aff’d, 91 EAM 212 (October 28, 1991) (resolutions adopted by executive board and general membership of local union to support a particular slate violated the Rules).  Here, neither Local Union 988 nor its executive board has adopted a resolution to endorse a candidate. 

            We have held that a declaration of union endorsement when one has not been made violates Article XI, Section 1(b)(3) of the Rules on either of two bases: it treats the union as having made an involuntary endorsement it is not permitted to make, or it gives the false impression of an endorsement.  In Collins & Strohl, 2011 ESD 143 (March 2, 2011), we found that a campaign mailing that did not identify the sender and listed “International Brotherhood of Teamsters” on the return address with no disclaimer falsely conveyed an impermissible union endorsement.  In Rivers, 2011 ESD 137 (February 24, 2011), we held that a campaign mailing stating that a formal sub-entity of local union “backs” a candidate violated the Rules by falsely stating a prohibited endorsement.  We have extended this principle to union officials who make written or oral statements that the union backs or endorses a candidate.  In Hoffa, P-211-IBT-CAN (Corrected) (December 15, 1995), Election Officer Quindel held that there was “no question” that a flyer stating “Teamsters Canada Supports Ron Carey,” with an endorsement letter from a Teamsters Canada Vice-President printed on the reverse, constituted a prohibited endorsement by the Teamsters Canada entity even though the flyer had been produced by an individual on his own time, using his own equipment.  In O’Brien-Zuckerman 2021, 2020 ESD 1 (June 23, 2020), we held that a union steward who texted members in his shop that the local union “is backing” a slate violated the Rules because, although union endorsements are not permitted, “rank-and-file members, the audience receiving the declaration of endorsement [from a union official], have no reasonable basis for questioning the statement of endorsement or the means to do so.”  Similarly, in Teamster Power, 2020 ESD 5 (July 3, 2020), we held that union officials’ statements that their unions fully support or stand with particular candidates impermissibly conveyed a message of official endorsement by the union.

            Rationale underpinning these holdings is found not only in Article XI, Section 1(b)(3) but also in Definition 5, which defines “campaign contribution” as a contribution of money “or other thing of value where the purpose, object, or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate.”  Expressly included in the categories of contributions the definition recognizes is “[a]n endorsement or counter-endorsement by an individual, group of individuals, or entity.” Id., subsection f.  By declaring that a union has endorsed a candidate – even when the union has not done so and is prohibited by the Rules from doing so – the declarant effects an improper involuntary campaign contribution from the union.  It is “thing of value” within the meaning of the “campaign contribution” definition and is made by the declarant for the purpose of influencing positively the election of candidates.  Collins & Strohl, supra.  We held in Gegare, 2010 EAD 4 (May 31, 2010), aff’d in relevant part, 10 EAM 3 (July 8, 2010), that signing an individual member’s name without authorization to a written endorsement constituted obtaining an involuntary campaign contribution from that member in violation of the Rules.  For the same reason, obtaining an involuntary campaign contribution from the union by declaring that it has endorsed a candidate violates the Rules.

            These rulings that address the ban on endorsement by a union are careful to distinguish statements that reflect endorsement of a union delegate or officer candidate by the union entity (prohibited) from statements that reflect support by individuals or members but include a reference to the union affiliation of the individuals for identification purposes (permitted)[3].  Thus, Custer, supra, framed the question as follows: 

The propriety of the notice as issued in this case thus depends on whether it indicates that the Executive Board of Local 673, as an entity, endorsed particular candidates for International Union office or whether the endorsement notice constitutes an endorsement of individual members of Local 673, who happen to be officers and members of the Executive Board of that Local.  Compare and contrast Election Office Case No. O-1064-IBT (finding a violation where the endorsement notice stated “Your entire Executive Board and all Business Agents of the Local Union unanimously and wholeheartedly urge you to vote for and actively support the R.V. Durham Unity Team Slate of candidates”) and Election Office Case Nos. P-1071-LU677-ENG and P-1072-LU24-CLE (finding no violation where the endorsement notices stated “Members of Teamsters Local’s 677 Executive Board and the delegates and alternate delegates to the Convention unanimously endorse the R.V. Durham Unity Team” and “that the members of Teamsters Local 24 Executive Board have unanimously endorsed the R.V. Durham Unity Team”).

See also Moriarty, P1071 (November 15, 1991) (Election Officer found no violation when a letter contained endorsements from every member of the local union executive board, each board member’s name and title, and a statement that “the members” of the board unanimously endorsed a certain slate. The Election Officer explained, “[T]he Rules do not prohibit the members of an Executive Board from identifying themselves as such when [endorsing] candidates; as long as the endorsement is not made as an official endorsement of the Executive Board as an entity, but as individual endorsements by the members of the Executive Board, the Rules are not violated.”); and Jones, 2001 EAD 222 (March 8, 2001) (“The relevant precedent reveals a distinction between an endorsement by a local union institution, which is prohibited, and an endorsement by individual members who comprise a local union institution, which is permitted.”)  

            In the present case, we find that the photo, as captioned on the Teamster Power Facebook page, is not presented as an endorsement of the Teamster Power slate by the Local Union 988 entity.  The photo, evaluated first without reference to label or caption, did not convey an impermissible union endorsement because it did not depict political paraphernalia or sloganeering or otherwise demonstrate campaign activity. 

The caption added to the photo by Teamster Power’s Hayes did not convert the innocuous image into an involuntary endorsement.  To start, the caption did not use the plain language found in our precedents that was held to convey an endorsement by the union entity.  Instead, the caption, fairly summarized, declared that the Teamster Power slate was present in Texas collecting petition signatures and was grateful to individual volunteers for their efforts.  As Mele told Hayes after the photo was posted to the Teamster Power Facebook page, the caption in no way accurately described the scene depicted in the photo.  That the caption was inaccurate, however, did not convert it to an involuntary endorsement of the campaign by the local union, even with the addition of the photo label that provided a hyperlink to Local Union 988’s Facebook page.  In sum, we find that the photo, the caption, and the label, taken together, did not state expressly or reasonably imply that Local Union 988 “as an entity” supported the slate.

For these reasons, we 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 7

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

Fred Zuckerman

fredzuckerman@aol.com

Ken Paff

Teamsters for a Democratic Union

ken@tdu.org

Teamsters Local Union 988

rmele@teamster988.org

Dolores Hall

dhall@ibtvote.org

Jeffrey Ellison

EllisonEsq@gmail.com