Protest Decisions

IN RE: MICHAEL-DAVID SASSON, Protestor.
Protest Decision 2011 ESD 206
Issued: April 12, 2011
OES Case Nos. P-241-040411-FW & P-250-040811-FW

Michael-David Sasson, member of Local Union 2010, filed two pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The first protest alleged that the local union's policy for distribution of campaign messages by email violated the Rules. The second protest alleged that a campaign email sent by the local union on behalf of a slate of candidates pursuant to the union's email distribution policy did not include a required disclaimer. The protest further alleged that the slate was not assessed an additional charge for the corrected email, sent one-half hour later, that included the disclaimer.

Election Supervisor representative Christine Mrak investigated these protests.

Findings of Fact and Analysis

Local Union 2010 is a newly chartered IBT local union. In May 2010, members of the Coalition of University Employees (CUE) at the University of California (UC) voted to affiliate with the IBT. CUE represents a large bargaining unit of clerical employees, medical assistants and allied service employees at 11 university campuses across California, including UC medical centers and national laboratories. The IBT's General Executive Board subsequently approved the affiliation agreement with the CUE in the summer of 2010 and established it as Local Union 2010. At that time, CUE's members became members of the IBT and of Local Union 2010.

Prior to its affiliation with the IBT, CUE communicated with its membership primarily via campus-wide email system and through its website. As such, Local Union 2010 maintains a comprehensive email list of its membership that is well-suited for distributing campaign messages from candidates and slates in the delegates and alternate delegates election.

Nominations were conducted in this local union on March 8 and ballots were mailed on April 8. Candidates were apprised of their rights under Article VII, Section 7 to have the campaign messages distributed by the local union at candidates' expense using mail or email. With respect to email, that provision states the following, in relevant part:

(4) The Union shall honor reasonable requests by candidates for distribution of literature through electronic mail. Requests for the distribution of literature by electronic mail shall be governed by the same rules applicable to the distribution of literature by mail under this Section. … Campaign literature distributed through electronic mail shall clearly state that it is campaign literature, the contents of which are not endorsed by the Union. The manner of distribution of candidate literature by electronic mail shall be subject to such Advisory or further guidelines as may be established by the Election Supervisor for the purposes of facilitating distribution of literature by electronic mail, protecting the confidentiality of electronic mail addresses, and protecting the privacy of electronic mail recipients.

On January 7, 2011, we published our Advisory on Rights of Candidates to Distribute Campaign Literature to Members Using IBT International Union and Local Union Email Lists ("Advisory"). With respect to distribution, the Advisory states the following, as pertinent here:

[E]ach local union shall have a procedure for complying with a candidate request to distribute literature by email. … The union may perform the distribution itself, or it may arrange for a third-party email distribution service. … Each piece of the distributed email should include the statement: 'This email is distributed by [name of campaign], which is solely responsible for its content. The message has not been reviewed or endorsed by the IBT [or Local {XXXX}].'

Local Union 2010 established its procedure for email distribution of campaign messages as follows:

Local 2010 has made arrangements to handle internally all requests for emailing delegate campaign literature to members at the candidates' expense. Candidates seeking to email campaign literature to members should provide at least 5 days written notice to Anytra Henderson, c/o Barry Alexander at Local 2010 IT Support Staff … and include the following information:

1.      The name of the candidate or campaign requesting the email broadcast;

2.      The date on which the email broadcast is to be sent;

3.      Whether the email is to be broadcast to all members or some portion thereof.

Each piece of campaign literature must be submitted in final form and as an attachment to an email sent to the above-referenced email address. Each piece of distributed email shall include the statement: 'This email is distributed by [name of campaign], which is solely responsible for its content. The message has not been reviewed or endorsed by the IBT or Local 2010.'

Local 2010 will charge candidates its reasonable cost of $37.50 to process each request for distribution of campaign literature by email.

Sasson's first protest asserted that Local Union 2010's email procedure violated the Advisory and the Rules because it required candidates to submit the campaign messages they sought to have the local union distribute by email to Anytra Henderson, the local union's principal officer who is also a candidate for delegate. Further, candidates were required to submit their messages at least five days before the date requested for distribution. These requirements, the protest argued, gave Henderson the advantage of reviewing her opponents' campaign messages before they were distributed and allowing her or her slate to formulate a responsive email that could potentially dilute the impact of the opponents' messages. As remedy, Sasson sought an order directing the local union to designate a third-party email house to handle distribution of campaign messages.

We DENY this protest. The Advisory expressly permits local unions to handle distribution of emailed campaign messages internally, rather than contracting for the service with a vendor. Further, under Local Union 2010's policy, campaign messages submitted for email distribution were sent to the local union's IT specialist, not to Henderson, and safeguards were established to keep the content of those campaign messages confidential until the time of the email distribution to the local union membership. Finally, the local union waived the five day advance notice requirement, reducing the possibility for premature access to the message before distribution. We recognize the protestor's concern about improper access permitting unfair advantage, but we find no factual basis for it at this local union.

Sasson's second protest concerned specific campaign messages sent to the local union membership under the email procedure. On April 6, a message of the Collings-Gomez slate was broadcast emailed to the membership by the local union. This message had four deficiencies: first, it did not contain the disclaimer required by the Advisory and the local union's email distribution procedure; second, it was formatted in such a way that the message was obscured; third, it misspelled "Collings" in the subject line; finally, it listed "UC Berkeley Chapter" in the subject line when the message was intended for and was sent to members at all eleven campuses statewide. When these issues surfaced, the local union re-sent the same message about thirty minutes later; the re-sent version contained the disclaimer at the top and bottom of the message (once more than is required), and corrected the formatting, the misspelling of the lead candidate's name, and deleted "UC Berkeley Chapter" from the subject line.

Later on April 6, the local union broadcast emailed a campaign message on behalf of delegate candidate Jorge Rodriguez. However, the broadcast email was sent five days ahead of the date the candidate had requested and two days before ballots were mailed. Further, the email did not include the pdf attachment that Rodriguez had submitted for inclusion in the email. Instead, the email listed the disclaimer twice (once more than is required) and the candidate's signature line twice, with no campaign content.

Sasson's protest alleged that the first broadcast email sent by the local union on behalf of the Collings-Gomez slate violated the Rules, the Advisory, and the local union's email procedure because it did not include the required disclaimer. The purpose of the disclaimer is to notify members that the email is sent by the local union on behalf of the candidate or slate, that the local union has not endorsed the candidate or slate and has not reviewed or approved the campaign content. Without that disclaimer, recipients may conclude that the local union has endorsed candidate(s), an action that it has not and cannot permissibly do under the Rules. Sasson further alleged that the re-sending of the Collings-Gomez email thirty minutes after the first transmission gave that slate additional exposure for which it must pay the required fee of $37.50.

We GRANT the protest in part. We conclude that the first email broadcast to the membership on behalf of Collings-Gomez did not include the required disclaimer. This omission was partially remedied by the local union before a protest was filed when it re-sent the message with the required disclaimer thirty minutes later. However, to dispel any potential misunderstanding among members of Local Union 2010 concerning whether the local union has endorsed the Collings-Gomez slate, we direct the local union to email the notice attached to this decision to all members within one day of the date this decision is issued. We direct the local union to embed the notice in the body of the email rather than transmit it as an attachment. We further direct that the email subject line read "A message from the IBT Election Supervisor."

With respect to the claim that Collings-Gomez received two campaign emailings while paying only for one, we conclude that the first email transmission - with the content formatted incorrectly, the lead candidate's name misspelled and the subject line referring only to "UC Berkeley Chapter" - did not give the slate the benefit of its contract with the local union for distribution of its campaign material. Accordingly, we will not require the slate to pay an additional $37.50 for the corrected version of the email that the local union sent thirty minutes after the first. To maintain a level playing field with respect to the contention that Collings-Gomez received additional exposure among the membership through the corrected email, we direct the local union to permit any other candidate or slate a second emailing of its same campaign message, thirty minutes after the first, at no additional charge.

We also find that Jorge Rodriguez did not receive the benefit of his contract with the local union because the broadcast email sent on his behalf contained no campaign content at all. Should Rodriguez seek to have his message sent again, this time with campaign content included, he shall not be required to pay an additional $37.50 for the privilege.

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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, 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
        2011 ESD 206

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org

David J. Hoffa
Hoffa Hall 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com

Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org

Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net

Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com

Scott D. Soldon
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.com

Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com

Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com

Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org

Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com

Anytra Henderson
Teamsters Local Union 2010
2855 Telegraph Avenue, Suite 301
Berkeley, CA 94705
clericals@cueunion.org

2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com

Susan White
swwchristian@sbcglobal.net

Maria Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com