Protest Decisions

ELECTION APPEALS MASTER

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IN RE: TEAMSTERS UNITED,

                                                                                    2015-2016 EAM 30 (KAR) (ESD 283)                               
                     PROTESTOR                                    

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                        Protest Decision 2016 ESD 283 (ESD 283) was issued on September 8, 2016 (OES Case Nos. P-327-072016-NA and P-343-081016-NA).  The protests alleged that a number of local unions, including Local Union 2727, failed or refused to produce email lists of their members to the vendor, Mosaic Strategies, with which Teamsters United contracted to provide it blast campaign email services, in violation of Article VII, Section 7(d) of the Rules.  

Decision of the Election Supervisor

 This appeal concerns the decision of the Election Supervisor with respect to Local Union 2727, which received the request from Teamsters United on July 6, 2016.  The Election Supervisor found that Local Union 2727 possesses a comprehensive list of email addresses for its members which it uses periodically to provide updates on matters of concern to its nationwide membership.  The Election Supervisor found that Local Union 2727 was aware of the Rules’ requirements with respect to email lists because the list was used by candidates competing in the local union delegates and alternate delegates election.  Nonetheless, the Local 2727 failed to produce the list to Teamsters United’s vendor until August 11, contending it should not be required to do so because it claimed that Joe Darmento, a local union member who also is a candidate for International office on the Teamsters United slate, had misused the list by sending a blast email to local union members after the conclusion of the delegates election.  (The Election Supervisor denied as untimely filed a protest raising this contention in Hoffa-Hall 2016, 2016 ESD 270 (July 15, 2016).)  The Election Supervisor found that Local Union 2727 had no reasonable excuse for its delay in producing the list, and granted the protest.  The Election Supervisor found that Local Union 2727’s failure to provide the requested list required a remedy intended to secure future compliance with the Rules.  The Election Supervisor stated the following:

 Additional remedies are appropriate for those local unions that have demonstrated by their past conduct an unwillingness to comply with the clear rule on providing email lists.  For those local unions, a remedial fine is appropriate to encourage compliance with these and other Rules obligations through the end of the election period.  These local unions may avoid any future remedial fines by complying with the Rules as they are obliged to do.  In the case of Local Union 2727, the present failure to produce the email list could not be evaded by pointing to a prior alleged misuse of the list.

The Election Supervisor ordered Local Unions 2727 to pay a fine to the Office of the Election Supervisor in the amount of $1,000.00, which was “strictly remedial in nature” and intended to stress to Local Union 2727 – and all unions under the Rules – its obligation to comply with the Rules. 

 Appeal of ESD 283

            On September 9, 2016, Local 2727 filed an appeal of ESD 283.  A telephonic hearing on the appeal of 2016 ESD 283 was held on September 20, 2016, attended by: Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor; Joe Childers (OES Investigator); Tim Boyle and Steve Stone (Local 2727); and Julian Gonzalez, Esq. on behalf of Teamsters United.

Prior to the hearing, Local 2727 made a supplemental written submission, dated September 18; the Election Supervisor submitted a response to the appeal by letter dated September 19, 2016 (OES September 19 Letter);

            On appeal, Local Union 2727 argued that it was not required to transmit its email list to Mosaic Strategies as Teamsters United had requested because it claimed that “MyDB Solutions was the authorized third party selected by TU to send campaign material via email blast to Local 2727 members.”  Specifically, Local Union asserted that Mr. Darmento, a local union member who is also a candidate for International office on the Teamsters United slate, had agreed that MyDB Solutions was the vendor designated by Teamsters United.

            This asserted justification is contradicted by documents submitted by Local 2727 in connection with this appeal.

First, July 8, 2016 email from Tim Boyle, local union principal officer, to the Election Supervisor, with copy to David Hoffa, attorney for Hoffa-Hall 2016, but no similar copy to any representative of Teamsters United, states “The Union has arranged for a third party, MyDB Solutions, as an email distribution service as required by the election rules.”  (Emphasis supplied.)  The email notes that Teamsters United campaign “has been using the third party selected by the [Union] for several months to send campaign material via EMAIL BLAST to Local 2727 members.  The Teamsters United campaign has since tried to obtain confidential, secure, personal information of Local 2727 members using various emails and fax numbers not recognized or approved by the Union.” 

Similarly, by fax dated July 8, Local 2727 responded to the Teamsters United request that the email list be sent to Mosaic Strategies as follows:

On or about April 8, 2016 the Teamsters United campaign was agreeable to My DB Solutions as the third party vendor to send campaign material via EMAIL BLAST to Teamster Local 2727 members (Bulk Mailers enclosed).

Beginning May 2016 the Teamsters United campaign has attempted to obtain and possess confidential, secure, personal information of Local 2727 members using several email addresses (RetireesTWA@aol.com, joeysleeve@aol.com, jjoeysleeve@aol.com).  My DB Solutions and the Office of the Election Supervisor have been provided the information requested and should be able to provide it upon request, if appropriate.  Please let us know if you require any further assistance.

These documents reflect that Local 2727 was declining to provide the required email list to Mosaic Strategies as requested, and as required by the Rules, based primarily upon the alleged misuse of email addresses by Teamsters United.

As the Election Supervisor points out:

Precedent establishes that a campaign may designate its own vendor if the local union’s vendor is not the least expensive provider and the campaign’s vendor otherwise complies with the Rules.  Article VII, Section 7(d); Thornsberry, 2005 ESD 11 (September 19, 2005).  Teamsters United did that by designating Mosaic, which provides the campaign nationwide service at a bulk rate.  The local union’s obligation when receiving the request from Teamsters United for transmission of the email list to Mosaic was simply to comply, not to claim – incorrectly – that Teamsters United had designated MyDB Solutions as its vendor.

            On appeal, the Election Supervisor also asserted that: 

 When the Election Supervisor’s representative contacted the local union after the protest was filed and explained the compliance obligation, the local union responded on July 30, 2016 by faxing the list to Mosaic rather than sending it electronically to the Mosaic email address Teamsters United had provided.  This action was the equivalent of doing nothing at all, for the list could be used in that format only by retyping the addresses into a database.[1]  

            The Election Supervisor argued that “the dilatory and obstructionist actions of Local Union 2727 that it was purposely delaying transmission of the list to Mosaic.  Its refusal on July 8 to send the list and its faxing of the list on July 30 demonstrated that it required a stronger incentive to adhere to its ongoing obligation of compliance with the Rules than a cease and desist order would have provided.  Accordingly, Local Union 2727 was ordered to pay a fine of $1,000 in order to encourage compliance with the Rules through the remainder of the electoral period.”

            At the hearing on appeal, Mr. Boyle denied that Local 2727 had faxed a list of email addresses to Mosaic Strategies.  He also denied that Local 2727 was dilatory in providing the email list to Mosaic Strategies following the filing of the protest, and that Local 2727 fully cooperated with OES investigator Joe Childers.  

Following the hearing, the Election Supervisor advised the Election Appeals Master and all interested parties by letter dated September 23, 2016, that after further investigation, the Election Supervisor was withdrawing its statement that Local 2727 had faxed its email list to the protestor’s vendor, stating:

Local 2727 did not fax its email list to Mosaic, whether on Saturday, July 30, as I indicated, or at any other time.  Rather it did not produce the list in any form until August 11, more than five weeks after the list was requested by Teamsters United, when it emailed a pdf of the list to the vendor.  (The local union did fax a description of the list to Teamsters United on July 27, but the list itself was never faxed to any recipient.)”  The Election Supervisor nonetheless urged affirmance of ESD 283, noting that “[t]he faxing of the list was not stated or alluded to in the decision itself and was not cited by the Election Supervisor as a basis for finding a Rules violation or for the remedy he imposed.  Rather, the Election Supervisor found that the refusal of the local union to produce the list—a refusal based on its claim that Joe Darmento had misused the list after the delegates election—was improper under the rules, that the local union knew its obligation was to comply with the request, and that it continued to obstruct the protestor’s right of email access to its members by refusing the request over several weeks until it finally complied on August 11.

Decision of the Election Appeals Master

            The Election Supervisor’s finding that Local 2727 knowingly violated Article VII, Section 7(d) of the Rules is supported by substantial evidence.  Nor did the Election Supervisor abuse his discretion in imposing a remedial fine.  However, in determining an appropriate remedy, it appears that the Election Supervisor may have been influenced in part by incorrect information regarding the conduct of Local 2727.  Therefore, in the interest of justice, the appeal is granted to the extent that the Election Supervisor is directed to reduce the remedial fine to $500.  ESD 283 is otherwise affirmed.

SO ORDERED.

/s/____________________________________

KATHLEEN A. ROBERTS

ELECTION APPEALS MASTER

DATED:  October 12, 2016