Trujillo, 2021 ESD 112
OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: PAUL TRUJILLO, ) Protest Decision 2020 ESD 112
) Issued: May 12, 2021
Protestor. ) OES Case No. P-129-033021-NE
____________________________________)
Paul Trujillo, member of Local Union 822, 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 sign promoting “Vairma-Gesualdi 2021” was affixed to an employer’s truck, and a photo of the sign posted to Facebook was “liked” by Bernadette Kelly, a candidate on the Teamster Power slate.
Election Supervisor representative Peter Marks investigated this protest.
Findings of Fact and Analysis
A photo attached to the protest showed, and investigation confirmed, that the “Vairma-Gesualdi 2021” placard was affixed to a truck operated by an employer under the jurisdiction of Local Union 282. Steve Vairma is a candidate for IBT General President on the Teamster Power slate. Thomas Gesualdi, principal officer of Local Union 282, is a candidate for East region vice president on that slate.
The photo was posted to Facebook by a supporter of the Teamster Power slate. Bernadette Kelly, a candidate for at-large vice president on that slate, saw the Facebook post and “liked” it.
This protest followed.
After the protest was filed and our investigator intervened, the placard was removed from the truck depicted in the photo posted to Facebook. Further, the steward at that employer, acting on the instructions of the business agent, inspected the employer’s fleet of trucks and the premises and determined that no other campaign placards or signs were posted on employer property. Investigation showed that the sign was posted on the truck for 5 to 6 days. Investigation showed that the Facebook post was removed on April 2, 2021, 3 days after the protest was filed.
The Rules’ requirements with respect to posting of campaign material on employer property should by now be well-known. We repeated them recently in Teamster Power, 2020 ESD 3 (July 3, 2020), viz.
Generally, the posting of campaign material on employer property violates the Rules. Hoffa-Hall 2016, 2016 ESD 64 (January 8, 2016). As Election Officer Quindel said in Hoffa, P-1073-IBT-MOI (October 16, 1996):
Putting such material on an employer’s truck or equipment has the effect, under the Rules, of causing the employer to make an improper campaign contribution, in violation of Article XI, Section 1(b)(2), even if the affixing of the sticker was against employer policy. Putting stickers on employer trucks or equipment can also create a false impression of employer endorsement, which would be another form of improper campaign contribution. See Feeley, P-874-LU817-MGN (September 17, 1996); Maney, P-956-IATSE-NYC et seq. (October 2, 1996), aff’d, 96 Elec. App. 251 (KC) (October 15, 1996); Knox, P-1006-SFD-MGN (October 14, 1996).
Furthermore, under Article XI, Section 1(b)([13]) of the Rules, International officer candidates “are strictly liable to insure that each contribution received is permitted under the Rules.” Therefore, affixing a campaign sticker or sign to an employer truck or other piece of equipment results in a violation of the Rules on the part of the candidate who the member intends to support.
For these reasons, affixing campaign stickers to [employer property] violated Article XI, Sections 1(b)(2) and (9) of the Rules as impermissible use of employer property to campaign and impermissible receipt by the … slate of that use.
As this analysis makes clear, the posting of the campaign placard on the employer’s truck violated the Rules. The dissemination of the image of that Rules violation on Facebook, and the “liking” of it by a candidate on the slate, exacerbated the violation.
For the foregoing reasons, we GRANT the protest.
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 wrote the following in Teamster Power, supra:
We have often held that the prompt removal of the improperly posted campaign material on employer property is sufficient remedy for the protest. Hoffa-Hall 2016, 2016 ESD 64 (January 8, 2016). See also, Halstead, 2006 ESD 386 (October 26, 2006); Wright, 2006 ESD 361 (October 2, 2006); Leedham Slate, 2006 ESD 301 (July 5, 2006); Halstead, 2005 ESD 31 (June 6, 2005); Domeny, 2001 EAD 499 (October 5, 2001); Speak, 2001 EAD 239 (March 14, 2001). “Immediate removal ends any potential impact of the improper campaigning.” Hoffman, P-1050-LU817-NYC (October 218, 1996); Sweeney, P-1029-RCS-NYC (October 28, 1996). This approach recognizes that “International officer candidates and slates have an obligation to take reasonable steps to ensure that their campaign materials are not affixed improperly to private property . . .” Sweeney, supra; Willett, P-863-LU331-PNJ (August 16, 1996); Knox, P-1046-LU337-MOI (October 30, 1996).
At a minimum, the Election Supervisor “expects International officer campaigns, when they receive notice of protests involving campaign material improperly affixed to employer property, to take their share of responsibility for ensuring that such materials are removed promptly.” Sweeney.
However, we expect more. Candidates for any union office should be fully familiar with the rule against these types of postings, which is not unique to the International officer election.
***
While the respondent slate benefits from these violations, these violations impose costs. First, the protestor bears consequences from the improper advantage its opponent gained from the violations. Second, the Office of Election Supervisor is required to devote resources (at ultimate cost to the IBT) to investigate decide this protest.
We affirm that statement here, and we add that local union officials, whether elected or appointed, have a responsibility to know the Rules with respect to the use of employer assets to convey a campaign message and to instruct their subordinates, whether business agent or steward, to be alert to such violations and to remedy them promptly.
Further, candidates, especially those for International office, must be attuned to such improper use of employer assets. When they are alerted to a violation of this type, such as through a photo showing one on a Facebook post, they should not encourage the violation by “liking” the image. Rather, they should reach out to the person who made the post and insure that the image is removed from Facebook and that the placard depicted on the employer asset is removed from that asset.
Based on the foregoing – and for this violation only – we accept as full remedy the removal of the placard from the employer’s truck and the removal of the posting from Facebook that showed that placard.
However, as we said in Teamster Power, should we find, going forward, that Teamster Power supporters have impermissibly posted campaign material on employer property despite the warning this decision gives, the investigation will assess the steps Teamster Power took to inform supporters regarding the proper and improper use of campaign placards. A more comprehensive remedy for such future violation, possibly including an assessment of remedial costs, will depend on whether the campaign took reasonable steps to avert the violation.
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 112
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
Paul Trujillo
tiknan.tono@gmail.com
Bernadette McCulloch Kelly
Bkelly.teamsterpower@gmail.com
Teamsters Local Union 282
c/o Thomas Gesualdi
tgesualdi@teamsterslocal282.com
Teamsters Local Union 822
Teamsters822@gmail.com
Peter Marks
pmarks@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com