IN RE: MARK SPARACINO, Protestor.
Protest Decision 2006 ESD 351
Issued: September 18, 2006
OES Case No. P-06-329-090606-HQ
Mark Sparacino, a member of Local Union 85, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that Dotty Malinsky, candidate for International vice-president at large, violated the Rules by accepting employer contributions for advertisement space on her website.
Election Supervisor representative Steven R. Newmark investigated this protest.
Findings of Fact
Mark Sparacino filed this protest against Dotty Malinsky for accepting advertising money from an employer for advertising on her website. Sparacino further complained that the advertisements were for anti-union websites. Although the print-out of the website that Sparacino submitted with his protest did not include Malinsky's URL, Malinsky did, in fact, confirm that the advertisements were up on her website at the time this protest was filed.
Investigation found that Malinsky established a website in August 2006 through Freewebs, Inc. Malinsky, a self-described computer "neophyte," thought that she applied for the "premium" package which would not have included any advertisements. Between August 15 and August 26, Malinsky was on vacation, without access to a computer. Malinsky does not recall checking on the website upon her return from vacation, and was not aware of any of the anti-union advertisements at issue in this protest. Between August 30 and September 2 Malinsky, a full time flight attendant, was working and without access to email or the internet. Upon her return home on September 2, Malinsky received a comment to her website from a supporter informing her of the anti-union web advertisements on her home page. Malinsky immediately contacted tech support at Freewebs and had the advertisements taken down.
Malinsky posted the following to her weblog on her website on September 4, 2006:
Dear Teamster Members,
Thanks for keeping me up to date on those sneaky union busters who seem to have invaded my website during the time I was scheduled to fly. Rest assured, I'm taking steps to eradicate the ad issue. It's nice to know you are paying attention and expressing your concern. I appreciate it and thank you.
Some of you have raised questions in emails to me about this site and have recommended that I pay someone to create a site with all the bells and whistles. Your feedback and ideas are wonderful but this site intends to just provide some basic information about me, my candidacy, and ways you can reach me with your ideas.
I believe that expending more funds would be foolhardy at this point. I know it's not that expensive, but as the rank and file candidate, most of my time is spent working for Northwest Airlines and engaging in union business. In my free time, I have chosen to allocate my time and resources to member visits.
I hope you understand that when I announced my candidacy in June, I had to make some tough decisions about time and resource allocation.
I'm so sorry to hear that these free ads that the web host posts have been a distraction for some. Please do not let this interfere with hearing my message of change and new directions. You know, of course, that I do not support any anti-union message or company. I'm a Teamster to my toes and proud of it.
Thanks for your time as I always appreciate your point of view. Happy Labor Day to my friends in the labor movement. Your efforts make the difference on the job and in your communities throughout the states and Canada. My fondest regards to you and your families!!
Your friend and union sister,
Dotty
Malinsky posted the following to her weblog on her website on September 6, 2006:
Dear Sisters and Brothers:
Thanks to your prompt action in alerting me to the anti-union ads that were posted without my permission on my web site, I have been successful in having them removed. I apologize to all who were troubled by the ads as I was also deeply offended and took action immediately. I became aware of them over the Labor Day holiday weekend and the web hosting company contacted me after the weekend with instructions for removing the ads. I removed them as quickly as possible.
Please continue to contact me when, and if, there is anything that needs addressed on this site.
In Solidarity
Dotty
Malinsky's website no longer contains any advertisements. At no time was Malinsky, or her campaign, paid any funds to advertise on her website.
Investigation found that Freewebs sold the advertising space to Google. Google, in turn, used a "sophisticated algorithm that includes such factors as keyword analysis, word frequency, font size, and the overall link structure of the web … to precisely match Google ads to each [web] page." As such, the Google program likely recognized words such a "union" or "Teamsters" to match up the page with certain Google advertisers. Investigation found that other advertisers on the site included organizations supporting women's rights issues.
Investigation further found that other candidates use email providers that post advertisements on their email correspondence. Thus, the campaigns of Cammack/Santangelo, Jack Cipriani, Fred Gegare, Toni Jackson, Dan Scott, and Dan Sweeton presently use or have used email providers that insert such advertising.
Analysis
Article XI, Section 1(a) of the Rules provides that "[n]o candidate for election shall accept or use any contributions or other things of value received from any employers, representative of an employer, foundation trust or any similar entity."
Here, Malinsky obtained a web address at no out-of-pocket cost to her or her campaign. However, the web address was not free, for it was provided in exchange for Malinsky's consent to the sale of advertising space on the site. When Malinsky learned that the advertisers selected for her site promoted ideas with which she disagreed, she paid to have the advertising removed from the site.
On the facts presented here, we find no impermissible employer contribution to Malinsky's candidacy. We find that Malinsky's consent to permit advertising on her site was commercially reasonable consideration for use of the site. Even though Malinsky paid no money for the web space, the arrangement between Malinsky and Freewebs - and the arrangements between other candidates and their email providers that include insertion in emails of advertisements over which the candidates have no control - was nonetheless equivalent to the more typical transaction where an employer provides goods or services to a candidate in exchange for money.
Our holding would be the same even were the Malinsky-Freewebs transaction regarded as a discount. Discounts on goods or services do not constitute campaign contributions so long as they are not established specifically for use by campaigns or independent committees in the 2005-2006 IBT Election and are "available to the customers of the supplier." Rules, Definition 5(c). Our Advisory on Campaign Contributions, Expenditures and Disclosure (January 2006), elaborates on this point as follows:
The first requirement is met if the practice of vendors providing customer discounts on goods/services is a common or accepted practice of the vendor or within the relevant industry. The second requirement is met if such a discount is offered to all customers and not just to a specific campaign or independent committee. The type of discount and its terms must be available to all similarly situated customers of the vendor and not be specifically created for the individual purchaser.
The purchase of discounted goods/services by an IBT member from a vendor does not constitute a campaign contribution by the vendor if the terms of the purchase are commercially reasonable. Gilmartin, 95 EAM 45 (December 18, 1995). In situations where there is more than one producer of an item, the commercially reasonable price is set by the market. Whether the vendor offers similar terms to other purchasers of his product is also relevant. Gilberg, P284 (September 20, 1991), aff'd, 91 EAM 194 (October 2, 1991). In the case of a unique product produced by a single producer with a limited customer base, the determination will depend on whether all of the costs of production and distribution, as well as reasonable profit, were covered by the sale price. Carter, P457 (April 26, 1996).
The Freewebs web address was provided to Malinsky on the same basis that Freewebs provided similar addresses to other customers, and Malinsky did not receive a benefit that was not provided to other customers of Freeweb. Accordingly, we find no impermissible employer contribution to Malinsky's campaign.
For these reasons, we DENY the protest.
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. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Supervisor in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
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, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 351
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Mark Sparacino
706 Ferry Street
Martinez, CA 94553
Malinsky 2006 Campaign
P.O. Box 385288
Minneapolis, MN 55438
dmmalinsky@cs.com
Steven Newmark
Office of the Election Supervisor
International Brotherhood of Teamsters
1725 K Street, NW, Suite 1400
Washington, DC 20006
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com