O'Brien-Zuckerman 2021, 2020 ESD 19

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: O'Brien-Zuckerman 2021,    )           Protest Decision 2020 ESD 19

                                                                        )           Issued: September 3, 2020

Protestor.                                           )           OES Case No. P-027-082820-NA

____________________________________)

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 Teamster Power slate violated the Rules by sending solicitations for campaign contributions to members employed at Teamster affiliates at their official union email addresses used for union business.

Election Supervisor representative Jeffrey Ellison investigated this protest.

Findings of Fact

On August 26, 2020, the Teamster Power slate sent an appeal for accreditation signatures to a list of email addresses.  The email solicitation contained a hyperlink and a QR code, either of which when activated loaded in the user’s browser the digital slate accreditation petition for the Teamster Power slate.  That page permits the user to sign the accreditation petition electronically by entering his/her name, complete mailing address, local union number, and, at the user’s option, the last four digits of the user’s Social Security number.  It also required the user to enter either a mobile phone number or email address to be used to validate the electronic signing. 

Teamster Power tasked its data vendor, 4degre.es, to email the solicitation to a portion of Teamster Power’s email list; the solicitation was sent to some 1,312 unique email addresses.  Prior to transmitting the solicitation, an effort was made to sanitize the list of addresses that had union domain names.  This effort netted eleven addresses, and the solicitation was not sent to these. 

Protestor alleged that Teamster Power sent the appeal to some recipients using their official union email addresses.  It identified two recipients whose email addresses had union domain names.  Protestor contended that the use of official union addresses for this purpose violated the Rules.  We have previously held that such campaign use of union email addresses violates the Rules because it uses union resources, in the form of union-sponsored email addresses, for a campaign purpose.  Teamster Power, 2020 ESD 6 (July 10, 2020).

Upon the protest’s filing, a representative for Teamster Power conceded that some emails had been sent to recipients at their union email addresses because the process the slate used for culling its list of official union addresses did not capture all of them.  At our investigator’s request, Teamster Power supplied us with the full mailing list, in the form of a sortable spreadsheet, that had been used to send the petition signature solicitation.  Sorting the spreadsheet showed that the email solicitation was sent to 12 unique email addresses that ended with Teamster domain names, including domains of the IBT and Teamster local unions and other affiliates.  Of these 12, 5 were to email addresses at the same local union.

Some Teamster local unions do not establish Teamster domain names for their official email communications.  Instead, they use the email service provided by Gmail, AOL, Yahoo, Comcast, or other providers and select usernames that indicate the official nature of the email address.  An example of this style is “teamsters[local union number]@hotmail.com.”  Our investigation found that Teamster Power sent the email solicitation to 18 email addresses of this style that are listed in the IBT’s official Roster of IBT officials, affiliated local unions, and joint councils published March 1, 2020.

We examined the electronic accreditation petition system to determine whether any of the recipients who received the Teamster Power’s August 26 solicitation at a union email address used the system on or after that date to sign the petition electronically.  We found that none had.

Analysis

As we stated in Teamster Power, supra, several provisions of the Rules prohibit campaigning using union facilities. Thus:

• Article VII, Section 12(c): “Union … facilities, … personnel, etc. 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.”

• Article XI, Section 1(b)(3): “No labor organization … may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate … No candidate may accept or use any such contribution. These prohibitions extend beyond strictly monetary contributions made by a labor organization and include contributions and use of the organization’s … facilities and personnel.”

• Article XI, Section 1(b)(6): “No Union funds or other things of value shall be used, directly or indirectly, to promote the candidacy of any individual. Union … facilities, … personnel, etc. may not be used to assist in campaigns unless the Union is compensated at fair market value for such assistance, and unless all candidates are provided with equal access to such assistance and are advised in advance, in writing, of the availability of such assistance.”

Further, several Rules provisions address a candidate’s responsibility with respect to union support of campaigning:

• Article XI, Section 1(b)(1): “Only contributions which are properly solicited … under these Rules may be expended or used by candidates, slates or independent committees for the 2010-2011 International Union Delegate and Officer Election.”

• Article XI, Section 1(b)(13): “Candidates are strictly liable to insure that each contribution received is permitted under these Rules. Prohibited contributions must be returned promptly.”

• Article XI, Section 1(b)(15): “Ignorance by a candidate, by a union and/or by an employer that union or employer funds or other resources were used to promote a candidacy shall not constitute a defense to an allegation of a violation of these Rules.”

It is firmly established under these provisions that a campaign may not mail, fax, or email campaign materials to a local union except where the campaign expressly requests that the material be placed on the local union’s literature table or bulletin board for general distribution and then only if the transmission complies with the requirements of our Advisory on the Use of Literature Tables.  

In Reyes, 2010 ESD 59 (December 22, 2010), we held that a campaign violated the Rules by using the U.S. Mail to send individually addressed campaign literature and solicitations for campaign contributions to recipients at local union addresses.  There, the campaign “sent solicitations to members asking for support and campaign contributions, and individually addressed those solicitations to each targeted member using a local union as the mailing address.  This use of local union addresses to deliver individually-addressed campaign solicitations violates the Rules.”  Id.; see also Prisco, 2010 ESD 6 (July 8, 2010) (business agent violated the Rules in part by using a union-provided email network to spur chief stewards and stewards to circulate slate accreditation petitions).

Just as the use of local union postal mailing addresses was found to violate the Rules in Reyes, so too does the use of local union email addresses for individually address campaign solicitations violate the Rules here.

Election Administrator Wertheimer spelled out the rationale prohibiting the use of union addresses for individually addressed campaign material in Ostrach & Mandaro, 2000 ESD 29 (October 2, 2000), aff'd, 00 EAM 7 (October 10, 2000):

while a local union’s or joint council’s officers may have a real interest in campaign materials for candidates, the Rules require that such campaign materials intended for them, rather than the membership as a whole through campaign literature tables, be sent to the officers at their homes or to campaign addresses.

            On these facts, we GRANT the protest.  A candidate or slate may not permissibly solicit campaign support (including solicitation of accreditation signatures) or contributions using individuals’ union email addresses because such solicitation uses a union resource to reach its intended audience.

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 order Teamster Power to email the Notice of Election Rules Violation by Teamster Power attached to this decision to all recipients of the August 26, 2020 petition signature solicitation.  Such emailing shall be completed within 3 business days of the date this decision issues.  The subject line of the email shall state “Notice of Election Rules Violation by Teamster Power slate.”  The purpose of the notice is strictly remedial, to inform the recipients of the requirements of the Rules, the violation found, and the remedy imposed.

In addition, as no candidate or slate may send solicitations for support to recipients at union email addresses, we order Teamster Power to cease and desist from using union email addresses for such purpose and to purge from any email list it uses for soliciting support all union email addresses, whether they are addresses with union domain names or union usernames.  With the issuance of this decision, we have supplied a list of 30 email addresses covered by this cease and desist order directly to Teamster Power and do not otherwise name them in this decision.  Teamster Power must complete the purge ordered here with 5 business days of the date this decision issues.  We have also supplied a list of 27 additional email addresses where the username suggests that the email addresses may be official union addresses.  For this list, we have not verified that these email addresses are official union addresses and therefore do not order Teamster Power to purge them.  However, we note that a candidate or slate is strictly liable for impermissibly using a union resource for a campaign purpose.  As such, if the campaign uses all or some of them for a campaign purpose without verifying that the email addresses are not official union addresses, it does so at its peril.

Because we found no recipients at union email addresses electronically signed the Teamster Power digital accreditation petition after the August 26 email was sent, we have no need to order invalidation of such signatures.

Teamster Power must submit a declaration within 5 business days of the date this decision issues affirming that it has completed the remedies ordered here.

            A decision of the Election Supervisor takes immediate effect unless stayed.  Lopez, 96 EAM 73 (February 13, 1996).

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 19

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

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

Jeffrey Ellison

EllisonEsq@gmail.com