Teamster Power, 2021 ESD 60
OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: TEAMSTER POWER, ) Protest Decision 2021 ESD 60
) Issued: February 23, 2021
Protestor. ) OES Case No. P-073-020921-AT
____________________________________)
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 Local Union 641 and its officers used union resources to endorse the O'Brien-Zuckerman 2021 slate of candidates.
Election Supervisor representative Joe Childers investigated this protest.
Findings of Fact and Analysis
On Saturday evening, February 6, 2021, at 8:16 p.m., Henry Moss, a trustee and executive board member of Local Union 641, posted to the local union’s website an endorsement of the O'Brien-Zuckerman 2021 slate. The endorsement read as follows:
Teamsters Local
641
New Jersey for OZ-
Teamsters United
“Sean O’Brien has proven through his
leadership that he is the future of the
International Brotherhood of Teamsters. I
am proud to endorse the OZ-Teamsters
United Slate.”
The quoted statement was attributed to Billy Cunningham, president and principal officer of the local union. A disclaimer stated that his title and position were for identification purposes only. A photo accompanied the endorsement. It depicted, left to right, Carlos Wong, local union trustee and business agent; Jim Kilkenny, local union vice president; Cunningham; and Gary Mills, local union secretary-treasurer. The four men were posed before the Local Union 641 sign that stands in front of the union hall in Union, NJ.
The O'Brien-Zuckerman 2021 campaign created the graphic of the endorsement for use on the campaign’s Facebook page. Vice president Kilkenny received it from that source, and he distributed it to the three local union trustees for informational purposes. Moss, a trustee, is responsible for maintaining the local union website, teamsterslocal641.com. He posted it there, not recognizing that posting a campaign endorsement on the local union’s official website implicated the Rules that prohibit use of union resources for campaign purposes. Kilkenny was alerted that the endorsement was posted to the local union website by Brian Rainville, a campaign operative for the O'Brien-Zuckerman 2021 slate. Kilkenny told our investigator that when he saw the endorsement on the local union website, on Sunday, February 7, he contacted Moss and directed him to remove it immediately. Moss was watching the NFL Super Bowl when he received Kilkenny’s text message. He complied with the instruction and removed the endorsement from the website by 7:23 p.m. Sunday evening.
Thereafter, Kilkenny took the digital copy of the endorsement and placed it on the Facebook page for Teamsters Local 641 Continued Unity Team,[1] which he described to our investigator as a page he developed for his slate of candidates, comprised of individuals who have held elective office in the local union for more than a decade. He denied that the Facebook page is an official publication of the local union.
The Teamsters Local 641 Continued Unity Team Facebook page showed that it was created in November 2010. Kilkenny told our investigator that he created the page during his slate’s campaign for local union office that year, the last time that a contested election had occurred for the officer positions. The page has very few posts. One, from December 2010, exhorts viewers to vote for the officer slate. Another from later the same month thanked voters for the 70% victory margin in that election. A September 2016 post thanked members for re-electing the officers without opposition, as did a similar post from September 2019. A smattering of posts extended congratulations to a retiring member in 2017 or offered an update on pension legislation that was pending in Congress in 2019. More recently, a post made on November 24, 2020 – apparently copied from the official Local Union 641 website – obscured whether the Facebook page was a campaign page or an official local union page. It addressed the local union membership and identified the local union and its executive board as the speaker. It read as follows:
ATTENTION ALL TEAMSTER LOCAL 641 MEMBERS
Teamsters Local 641 takes the health, safety and security of its members very seriously. As a result of the COVID-19 virus we have chosen to cancel the December 13, 2020 general membership meeting. Covid-19 restrictions by the State of NJ and the safety of our membership fueled this decision.
As always, if you have a question, concern or a problem in your workplace, please contact your union representative at the local union hall.
The entire executive Board wish you and your family a Happy & Safe Holiday Season!
This post followed Kilkenny’s re-posting on February 7, 2021 of Cunningham’s endorsement of the O'Brien-Zuckerman 2021 slate. When Kilkenny explained to our investigator on February 11 that the Facebook page was his social media vehicle for promoting the executive board members as candidates, our investigator asked him how the Facebook page contents would allow a viewer to discern that fact. Kilkenny responded during the investigative interview by deleting the endorsement (not the executive board announcement of meeting cancellations) from the Teamsters Local 641 Continued Unity Team Facebook page.
Article VII, Section 12(c) bars use of union assets in campaigning, unless all candidates are given advance written notice of the availability of the assets for campaign use. The posting of Cunningham’s endorsement on Local Union 641’s website violated this provision. The local union mitigated the harm caused by the violation by removing it less than a day after it was posted, with Moss interrupting his personal activity to do so. Nonetheless, a violation has occurred.
The posting of the same endorsement on the Facebook page of the Teamsters Local 641 Continued Unity Team presents a closer question. We accept that the page was created as a campaign vehicle for the members who were elected and re-elected as local union executive board members. It would be easy to find that the Facebook page remained a personal page, if the posts to that page were limited to the activity for which it was created. The recent post canceling a local union membership meeting, issued in the voice of the union and its executive board, strayed from that purely personal character, but that single post did not, in our view, convert the Facebook page to an official union publication and so render the campaign endorsement that Kilkenny posted there the official statement of the local union. Kilkenny can reduce the possibility that readers will confuse his Facebook page with an official union publication by declaring in the “About” section of the page that it is not the official page of Local Union 641 and, further, by prefacing any post copied there from the local union website (or other IBT source) with a statement explaining its source.
For these reasons, we GRANT the protest with respect to the local union website and DENY it with respect to the Teamsters Local 641 Continued Unity Team Facebook page.
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 direct Local Union 641 to cease and desist from posting campaign endorsements to the local union website. We further direct the local union to copy and paste the following notice to the local union website. The posting must be made to the homepage of the site within three days of the issuance of this decision and it must be maintained in that location for a period of thirty days following posting.
_____________________________________________________
OFFICE OF THE ELECTION SUPERVISOR
for the INTERNATIONAL BROTHERHOOD OF TEAMSTERS
1990 M STREET, N.W., SUITE 650
WASHINGTON, D.C. 20036
844-428-8683 TOLL FREE
electionsupervisor@ibtvote.org
Richard W. Mark
Election Supervisor
NOTICE TO MEMBERS OF
TEAMSTERS LOCAL UNION 641
No union website may be used for a campaign purpose in the IBT election.
The Election Supervisor has found that Local Union 641 posted a candidate endorsement on its website. This action violated the Election Rules.
All union members, including union officers, business agents, and stewards, have the following rights:
- You have the right to support – or to withhold support from – any candidates for delegate or alternate delegate and any candidates for International office in the 2020-2021 IBT Election.
- You have the right to participate in campaign activities on behalf of candidates for International office in the IBT.
The Election Supervisor has issued this decision in Teamster Power, 2021 ESD 60 (February 23, 2021). You may read this decision at https://www.ibtvote.org/Protest-Decisions/esd2020/2021esd060.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, 1990 M Street, N.W., Suite 650, Washington, D.C. 20036, telephone: 844-428-8683, fax: 202-925-8922, email: electionsupervisor@ibtvote.org.
This is an official notice of the Election Supervisor for the International Brotherhood of Teamsters.
_____________________________________
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 60
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
Teamsters Local Union 641
Ibtlocal641@aol.com
Teamster Power slate
Vairma2021@gmail.com
Joe Childers
jchilders@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com