O'Brien-Zuckerman 2021, 2021 ESD 139
OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: O'Brien-Zuckerman 2021, ) Protest Decision 2021 ESD 139
) Issued: August 18, 2021
Protestor. ) OES Case No. P-166-080221-NA
____________________________________)
The O'Brien-Zuckerman 2021 slate, 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 the IBT violated the Rules by publishing on its website, Facebook page, and Twitter feed an article that promoted the candidacy of Jason Rabinowitz.
Election Supervisor representative Jeffrey Ellison investigated this protest.
Findings of Fact
Rabinowitz is principal officer of Local Union 2010 and director of the IBT Public Services Division. He also is a candidate for IBT West region vice president on the Teamster Power slate.
On July 30, 2021, the IBT communications department published an article on its website titled “California Love: Local 2010 Brings Teamster Organizing to Higher Ed.” The article was taken down almost immediately and was reposted on August 2, 2021, to the Teamster.org website, the IBT Facebook page, and the IBT Twitter feed. The article was not submitted to OES for pre-publication review under Article VII, Section 8(e), which requires that every union-financed publication “to be mailed or otherwise distributed to the membership between August 2021 and November 2021 shall be submitted” for pre-publication review. The phrase “otherwise distributed” in this provision of the Rules includes publication to union-financed electronic platforms, including websites, Facebook pages, Twitter feeds, and the like during the time frame the provision indicates. Once the article was reposted on the website, Facebook page and Twitter feeds of the IBT on August 2, 2021, it was picked up and republished the same date on the corresponding platforms of Local Union 2010. The local union did not seek or obtain pre-publication review and approval before reposting the article, nor did it contact the IBT communications department or OES to verify that the IBT had obtained such review and approval.
The article ran some 1,645 words over 31 paragraphs. It addressed 2 topics: the organizing success of Local Union 2010 in California higher education units, and the progress the local union made in gaining employer agreement to vaccinate members against the covid-19 virus on paid time and on employer premises. Investigation showed the organizing aspect of the article was first proposed by the Public Services Division in Fall 2020 for inclusion in Teamster magazine, which the IBT publishes and mails to members several times per year. The communications department agreed that the topic was newsworthy and slotted the article for publication in the February 2021 edition. The article was not published in that edition, however, because it was displaced by a cover feature on the covid-19 vaccine breakthrough titled “A Shot in the Arm.” The article was then scheduled to appear in the May 2021 edition but was displaced by “Promises Made, Promises Kept, Pensions Saved,” concerning legislation adopted to preserve pension benefits. When space for the upcoming September 2021 edition was limited by the shortage affecting availability of magazine-quality paper, the communications department published the article electronically only.
The first 21 paragraphs of the “California Love” article, some 1,160 words, reported on Local Union 2010’s success in adding bargaining units to its membership from the California university system. This work, undertaken through organizing and accretion, occurred in the context of the U.S. Supreme Court holding in Janus v. AFSCME, 585 U.S. ___, 138 S.Ct. 2448 (2018), that a union’s extraction of agency fees from non-consenting public sector employees violated the First Amendment. The first three paragraphs of the article stated the following:
When the Supreme Court handed down Janus v AFSCME three years ago, many predicted that it would be a blow that the labor movement would never recover from. At the University of California (UC) and California State University (CSU), Local 2010 is proving that nothing could be further from the truth.
“We’ve increased our density dramatically over the past few years, organizing nearly 4,000 new workers into the Teamsters, including 1,300 during the pandemic,” said Jason Rabinowitz, Teamsters Public Services Division Director and Secretary-Treasurer of Local 2010. “We’re going to keep that momentum going, organize thousands more, and use our increased power to win real improvements in pay and working conditions for UC and CSU workers.”
The avalanche of organizing victories that Local 2010 has had illustrates that by implementing a multi-faceted approach to expanding membership, unions can do incredible things.
The fourth and fifth paragraphs of the article identified two methods the local union used to add membership: traditional organizing, where the union petitions the state agency for certification by showing that it represents a majority of the bargaining unit; and accretion. The article explained this latter method with a second quote from Rabinowitz:
“The accretion process is where we file a petition with the board that says these workers are misclassified; they should be in our existing bargaining unit because the work that they’re doing is similar to the work that is being done by existing members and there is a community of interest there,” Rabinowitz said. “We utilize this process together with our campaign of organizing the workers. That way, when we win recognition, we already have strong support and we are ready to fight for and win a good contract.”
Rabinowitz is not quoted or mentioned again in this portion of the article, whether by name or position. Paragraphs 6 through 21, some 830 words, provide detail of the local union’s success and quote five rank-and-file members on why they pursued unionizing and are glad they did.
The balance of the article, subtitled “Jabbing on the Job” and consisting of the final 10 paragraphs and 485 words, reported on the effort Rabinowitz made to insure that essential workers employed in the university system were vaccinated at work promptly after shots were available. According to the article, he wrote California State University administration to request on-site vaccinations and paid time off to receive them. The article quotes a sentence from his letter: “Needless to say, time is of the essence, as our members are working every day on the campuses, and it is imperative that we give every worker the opportunity to receive the vaccine as soon as possible.” This section of the article also reports on the efforts of Rabinowitz and 2 rank-and-file members to facilitate vaccine delivery, quoting one of the members. Rabinowitz’s name appears 5 times in this section, and he is quoted once, as follows:
“CSU skilled trades Teamsters have been on campus, providing critical skilled work throughout the pandemic,” Rabinowitz said. “Those who want to receive a vaccine should be able to receive one right away now that they are eligible. And they should be able to receive it on paid time, on campus, if possible. These Teamsters have been behind-the-scenes heroes since day one of COVID-19.”
Analysis
Article VII, Section 8 of the Rules declares that “[n]o publication or communication financed, sponsored or used, directly or indirectly, by a Union … may be used to support or attack any candidate or the candidacy of any person.”
Article XI, Section 1(b)(3) provides that no union 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. Article XI, Section 1(b)(6) provides that no union funds or other things of value shall be used, directly or indirectly, to promote the candidacy of any individual. Article XII adopts expressly by reference LMRDA Section 401(g), which prohibits union assistance to campaigning.
Electronic postings made by the IBT communications department on the IBT’s website, Facebook page, and Twitter feed constitute union publications within the meaning of Article VII, Section 8 and a “thing of value” within the meaning of Article XI, Section 1(b)(3) and (6).
With respect to LMRDA Section 401(g), the court in Reich v. Teamsters Local 843, 869 F.Supp. 1142 (D.N.J. 1994), reviewed the case law under Section 401(g) with regard to campaign content in union-sponsored communications:
To establish a violation of Section 401(g), it is not necessary that the questioned publication be explicitly or implicitly committed to endorsing specific candidates or attacking the opposition. Rather its overall tone, timing, and content must be evaluated to determine whether there is any blatant encouragement of the incumbent [or challengers]. Donovan v. Local 719, UAW, 561 F.Supp. 54, 58 [113 LRRM 2902, 2906] (N.D. Ill. 1982); accord [Brock v. Connecticut Union of]Telephone Workers, 703 F.Supp. [202,] at 206, Usery v. International Org. Masters, Mates and Pilots, 538 F.2d 946, 949 (2d Cir. 1976); [Hodgson v.] Liquor Salesmen's Union Local No. 2, 334 F.Supp. at 1369, 1377, aff'd, 444 F.2d 1344 (2d Cir. 1971); Wirtz v. Independent Workers Union of Florida, 272 F.Supp. 31, 33 (M.D. Fla. 1967). Regarding content, federal regulations interpret LMRDA §401(g) as ‘prohibit[ing] any showing of preference’ by union-financed publications through praise, endorsement, criticism or attack directed towards a candidate. 29 C.F.R. §452.75 (1994); accord McLaughlin v. American Fed’n. of Musicians, 700 F.Supp. 726, 734 (S.D.N.Y. 1988) (‘promotion of a candidate under §401(g) includes both affirmative statements about the candidate and negative references about the opposition.’).
The tone, timing and content test has been the mainstay for examining the alleged use of union publications to support or attack a candidate under Article VII, Section 8(a) of the Rules. Martin, 95 EAM 18 (October 2, 1995). “To establish that a challenged article does not impermissibly promote a candidate, the publisher of the article must demonstrate that the article’s tone, timing and content, considered together, reflect that it is a valid news article. Specifically, with regard to its tone and content, a challenged article must objectively address a newsworthy subject unrelated to the International election process.” Kilmury, 96 EAM 109 (February 28, 1996) (emphasis in original).
We note that the “California Love” article at issue in this protest does not refer to the International officers election in any respect nor Rabinowitz’s candidacy in that election. Equally, it does not attack or criticize any other candidate in the election. Further, there can be little question that organizing the unorganized – and in particular here, organizing public sector employees in the Janus era – runs to a union’s core goals, and its successes are newsworthy to the membership. In addition, the pandemic has presented particular issues for Teamster members, most of whom are and have been regarded as front-line and essential workers in providing needed goods and services and maintaining the economy. Just as organizing is newsworthy, so too are the efforts to protect the organized with vaccinations. For these reasons, we conclude that the article’s content and tone – the two most important elements of our analysis – show that the reporting on Local Union 2010’s activities, and Rabinowitz’s leadership, did not violate the Rules.
The protestor argued that a publication “cannot invent achievements out of whole cloth or peddle falsehoods as mere ‘pablum and puffery.’” In particular, the protest contested the factual basis of Rabinowitz’s first quote, where he stated, “We’ve increased our density dramatically over the past few years, organizing nearly 4,000 new workers into the Teamsters, including 1,300 during the pandemic.”[1] In the same vein, the protestor took issue with the phrase, “avalanche of organizing victories.” Data supplied by the local union, which we accept, showed that during the period beginning in 2020 and running through April 2021, units totaling 1,624 employees were added to Local Union 2010. We construe “the pandemic” as used in the article as commencing at the beginning of 2020 and continuing through the present. Accordingly, the portion of the Rabinowitz sentence declaring an addition of “1,300 during the pandemic” appears to be an understatement, with 1,624 added over that period.
As for “increas[ing] our density over the past few years, organizing nearly 4,000 new workers into the Teamsters,” data the local union supplied supports this statement as well. Thus, in addition to the 1,624 added in 2020 and 2021, 1,300 were added when an independent union affiliated with Local Union 2010 in August 2017. An additional 2 units totaling 830 employees were added in 2016 by organizing victories, 200 more by accretion in January 2015, and 22 more by accretion in 2014. The sum of these additions is 3,986 employees, a number we conclude is “nearly 4,000.” Further, while “the past few years” is an indefinite term, we find it reasonably can cover five years (over which when 3,764 were added), if not six (3,964 additional employees). For these reasons, we conclude that Rabinowitz’s quoted statement is factual. We further conclude that these additions may fairly be characterized as an “avalanche.”
The protest also challenged the accuracy of the numbers by pointing to the membership figures reported on Local Union 2010’s LM-2 reports for 2018, 2019, and 2020. Those showed, in 2018, 11,040 members, followed by 11,087 and 10,633, in the subsequent years. We reject this challenge, observing that there is little relationship in a given year between gross membership and the number of members added.
The protest did not challenge the accuracy of the article’s reporting on the local union’s role in facilitating vaccinations of its members employed in the California university system.
In evaluating this protest, we reject the premise on the article’s content, which appears to be that a purely factual article concerning legitimately newsworthy issues may not permissibly be published by a union entity if a subject of the article is a candidate for union office. This argument carries no water, given the Martin precedent. Indeed, by the standard the protestor promotes, an article the IBT published on its website, Facebook page, and Twitter feed and printed on four pages of Teamster magazine just before the IBT convention would have violated the Rules. The article, titled “A Bronx Tale – Teamsters Strike Hard and Win Big at Hunt’s Point Market,” detailed the strike by Local Union 202 members to win a wage increase at “one of the most essential food distribution hubs on the planet,” in the South Bronx of New York City. The first page of that article featured the following quote:
“Frontline workers can’t telecommute, they can’t phone it in,” said Daniel Kane Jr., Local 202 President. “These folks didn’t become essential during the pandemic. They have been essential forever.”
The article detailed the issues that prompted the strike, the public support it garnered, the picket lines the union put up, and the ultimate settlement that resulted. It printed a second quote from Kane as well:
One night, the NYPD was called and six people on the picket line were arrested. Workers were brought in to replace those had walked off the job, which Kane condemned in no uncertain terms.
“The people who didn’t stand with us, they’re always going to have that little twinge in their belly that they did the wrong thing,” Kane said. “Every one of you around here with each other is never going to have to feel that,” he said. “Because when it was your time to stand up, you stood up and did the right thing. That’s the power.”
Kane is a candidate for International office on the protestor’s slate. No protest was filed over “A Bronx Tale.”
On the facts presented in this protest, we find that “California Love” did not violate the Rules as an impermissible use of a union publication to promote a candidacy. Accordingly, we find that the IBT’s article did not violate the Rules, and we DENY the protest with respect to the substance of the article.
However, we find that the IBT violated the Rules by failing to submit the article for pre-publication review, as required by Article VII, Section 8(e). That rule requires that all communications published during the period August through November 2021 must have OES clearance before publication. The rule allows no exception for material previously published that is republished during the August-November time period.
We also find that Local Union 2010 violated the same provision by failing to obtain pre-publication review for its republishing of the IBT’s publication. As this case illustrates, a local union may not rely on the fact that the IBT has published an article as proof that it has been approved by OES. At minimum, the local union must make positive inquiry with the IBT or OES as to whether the IBT article has been approved for publication, and only then may the local union republish it. For these reasons, we find that the IBT and Local Union 2010 violated Article VII, Section 8(e) by failing to obtain pre-publication review of “California Love.” We order each to cease and desist from further Rules violations of this nature. We order no further relief because the substance of the article did not violate the Rules.
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 139
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
Fred Zuckerman
fredzuckerman@aol.com
Ken Paff
Teamsters for a Democratic Union
ken@tdu.org
Scott Jenkins
scott@oz2021.com
Jason Rabinowitz
jrabinowitz@teamsters2010.org
Robert Bonsall
rbonsall@beesontayer.com
Deborah Schaaf
dschaaf@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com
[1] The protest rendered the quote as “organizing 4,000 new workers into the Teamsters …”, omitting the word “nearly.” In evaluating this publication, we assess the actual words of the publication, not the protestor’s misquotation of them.