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Office of the Election Supervisor for the International Brotherhood of Teamsters

O'Brien-Zuckerman 2021, 2020 ESD 14

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

 

IN RE: O'BRIEN-ZUCKERMAN 2021,    )           Protest Decision 2020 ESD 14

                                                                        )           Issued: August 25, 2020

Protestor.                                           )           OES Case No. P-021-081320-NE

____________________________________)

 

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 a candidate’s banner listed his current union title but did not state that the title was for identification purposes only, in violation of the Rules.

 

Election Supervisor representative Peter Marks investigated this protest.

 

Findings of Fact and Analysis

 

Marcus King is a candidate for IBT vice president at-large on the Teamster Power slate.  On August 12, 2020, he and others campaigned at a UPS facility in New York City.  The campaigners set up a table on a public sidewalk for distribution of campaign literature and to serve as a writing surface for members signing accreditation petitions.  Affixed to the front edge of the table was a custom vinyl banner that included a photo of King, the Teamster Power slate logo, and a statement of candidacy by King.  The banner listed King’s current union positions, which are president of Local Union 331 and director of the IBT’s Human Rights and Diversity Commission.  In the lower left of the banner, in red letters, was the following: “***Official IBT Titles and Organizations for Identification Only***.”

 

A gallery of photos of the August 12 event was posted to the Teamster Power slate’s Facebook page.  One of the photos depicted several individuals posing with the campaign table.  King’s banner is affixed to the edge of the table and hangs down to provide a skirt for the table.  The upper portion of King’s banner appears in the photo.  The lower portion of the banner where the disclaimer is written falls beneath the lower edge of the photo. 

 

The post that introduced the gallery on the Facebook page read:

 

#teamsterpowerslate candidates Tommy Gesualdi (East Region VP) Marcus King (At-Large VP), and Bernadette Kelly (At-Large VP) hitting the Local 804 UPS facility in NYC. Great support from the members on these petitions. Thanks for all the great support this AM! We even had a visit from our old friend George Miranda!

Now you can help the #teamsterpowerslate qualify for the 2021 IBT election ballot from the safety of your own home, worksite or smart phone!

GO TO LINK:

www.ibtvoteaccredit.org/teamsterpowerslate

***Official IBT titles and organizations for identification purposes only***

 

The protestor filed this protest alleging that the Teamster Power slate violated the Rules by failing to include a disclaimer on the Facebook post or on the banner, which it argues is required by Article VII, Section 12(b) of the Rules.  The Facebook post, which includes the disclaimer, contradicts this allegation.  Indeed, “[r]elevant images captured from the Teamster Power Facebook page” attached to the protest included the above-quoted post with the disclaimer.  Likewise, the banner, which also includes the disclaimer, was fully visible to members present at the August 12 canvassing.

 

Finding the evidence the protester submitted with the protest disproves the protest allegation, we DENY the protest.

 

The protest concluded with a broad request to impose “[a]ny other remedy that the Election Supervisor deems just and fair in light of the circumstances.”  The Rules set a low evidentiary threshold for filing protests but do state that “it shall be the burden of the protestor to present evidence that a violation has occurred.”  Article XIII, Section 1. 

 

At issue here were two allegations – that the post viewed by Facebook users lacked the disclaimer, and that the banner seen by members in person at the event lacked it.  The first allegation was defeated by evidence appearing on the Facebook page which not only has appeared continuously on the page since the post was made but was cited by and included with the protest. 

 

The disclaimer on the banner was visible to anyone at the campaign event.  Protestor had no witness from the event and therefore relied on speculation that the disclaimer was missing.  The protest itself hedged on this point, stating in a footnote: 

 

O’Brien-Zuckerman 2021 further believes that, even in the event that the banner in question does, in fact, contain the appropriate disclaimer (but presumably cropped out of the images posted on the Teamster power Facebook page) the Teamster Power Slate still violated the Rules because it had an obligation to post any image containing official IBT or Local Union titles with the appropriate disclaimer, either in the image or in the narrative of the post. 

 

Protestor made this statement, yet the evidence submitted with the protest showed that the disclaimer was stated “in the narrative of the post.”

 

The facts demonstrating that the banner itself included the disclaimer were not difficult to uncover, but the protest required investigation and communication with the Teamster Power slate representatives to determine the content of the banner.  Drafting the findings and analysis took additional time of our investigator.  Had the protestor heeded the basic evidentiary burden imposed by the Rules, this protest surely would not have been filed.  Accordingly, we order that the protestor bear the cost of the OES investigator’s time in investigating the protest and preparing the report. 

 

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 O’Brien-Zuckerman 2021 to pay to OES $1,000, by check delivered to the Office of the Election Supervisor in Washington, D.C., to cover the cost of the investigator’s work to investigate the protest and prepare the report.  The check shall be delivered to OES not later than September 1, 2020. 

 

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 14

 

 

 

 

                                                                                                     

     


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


Marcus King

kingmarcus1@gmail.com

 

Peter Marks

pmarks@ibtvote.org

 

Jeffrey Ellison

EllisonEsq@gmail.com