Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: MARK TIMLIN,                               )           Protest Decision 2015 ESD 40

                                                                        )           Issued: October 16, 2015

            Protestor.                                           )           OES Case No. P-050-091915-NE     

____________________________________)

            Mark Timlin, member of Local Union 177, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Joint Council 16’s Facebook profile impermissibly promoted the candidacy of George Miranda for IBT vice president.

            Election Supervisor representative Peter Marks investigated this protest.

Findings of Fact

            Joint Council 16 is comprised of local unions in New York and Puerto Rico.  George Miranda is president of the joint council and an IBT vice president at large.  Miranda is a candidate for re-election to his current IBT officer position on the Hoffa-Hall 2016 slate.

            Joint Council 16 maintains a Facebook profile titled “New York Teamsters.[1]”  On September 12, 2015, some 25 photos of the New York City Labor Day parade were posted to this Facebook profile.  One photo depicted Miranda with Demos Demopoulos,[2] secretary-treasurer of the joint council, as they participated in the parade on Fifth Avenue.  The photos were uploaded to the joint council’s Facebook profile by the photographer, Alex Moore, a staff member of Joint Council 16. 

The photo of Miranda as it originally appeared on the Facebook profile was tagged “Elect George Miranda for VP on the Hoffa Hall Slate.”  The tag was visible to the viewer of the photo by moving the cursor over Miranda’s image. 

The image of Miranda was tagged by Bridget McCulloch Kelly, an IBT representative who also serves as Miranda’s campaign manager for the IBT election. 

            Tagging a photo on Facebook identifies the person depicted in the photo and creates a link to that person’s profile.  A Facebook help center page on tagging encourages users to “[a]dd tags to share more about people in your posts,” explaining that “[a]dding a tag creates a link that people can follow to learn more”  about the person.  Clicking a tagged photo takes the viewer to the Facebook profile designated by the tag.  When a photo is tagged and a link is created to the tagged person’s profile, that person is notified.  The person can then review the tag and remove it if he/she wishes.  In addition, by adjusting profile settings, a person can review and approve tags of photos in which they appear before the tags are visible on Facebook.

            In this case, the tag added to Miranda’s photo linked to the Facebook campaign profile created when he ran for IBT office in 2011.  Kelly told our investigator that she tagged the photo using her mobile phone, inadvertently identifying Miranda as a candidate for office on the joint council’s Facebook page.  She said she recognized that the tag she used was inappropriate only when the protest was filed.  At that point, on September 22, 2015, she altered the tag to read simply “George Miranda,” the tag it carries as this decision issues. 

            The Miranda Facebook campaign profile[3] to which the original tag linked has a cover or home page photo of Miranda speaking at the front of a large group, apparently at the 2011 IBT convention.  Miranda is wearing a red vest with “Hoffa Hall” emblazoned in white on the left breast and a black Hoffa-Hall campaign button pinned at the right.  He is flanked by two individuals wearing white t-shirts bearing the Hoffa-Hall logo, and other persons stand nearby wearing the same type of red campaign vest that Miranda wears.

When Kelly changed the tag on the photo from “Elect George Miranda for VP on the Hoffa Hall Slate” to simply “George Miranda,” the photo link to Miranda’s 2011 campaign profile was removed and replaced by a link to what we are told is Miranda’s personal Facebook profile.[4]  However, the photo on the home page of the personal profile is the same one depicting Miranda as a candidate that appears on the “Elect George Miranda” Facebook profile.  The personal profile has links to some ninety-seven persons, organizations, sports teams, and causes in which Miranda is interested, including labor unions, public officials, and labor campaigns.  Among these, Miranda’s personal Facebook profile has links to “Elect George Miranda VP on the Hoffa Hall Slate” and to “Hoffa 2016,” both of which are campaign profiles.  As indicated, the former was created to support Miranda’s 2011 campaign and most of its content relates to that election.  However, the page is in use in the current election cycle, showing a June 17, 2015 posting of a new cover (i.e., home page) photo.  In addition, the “about” section of the campaign Facebook page lists “Hoffa-Hall 2016 Slate” as the organization with which Miranda is affiliated.  The “Hoffa 2016” link on Miranda’s personal Facebook page is in current and active use to support the Hoffa-Hall 2016 campaign.

            With the tagging of Miranda’s image on the joint council Facebook page as Kelly originally designated it, a click on the image took the viewer directly to the Miranda campaign Facebook profile.  As retagged by Kelly after the protest was filed, a click on the image took the viewer to Miranda’s so-called personal Facebook profile (which displayed a campaign image at the top of the home page); a second click on the personal profile was required to access the campaign Facebook profiles.

Analysis

            No publication “financed, sponsored or used, directly or indirectly, by a Union (including any social media site) may be used to support or attack any candidate or the candidacy of any person.”  Article VII, Section 8(a).  The Joint Council 16 Facebook page is a union publication within the meaning of this rule.

            Article VII, Section 9(a), directed to subordinate body publications that include the Facebook profile at issue here, declares that “[i]f any candidate is permitted to have his/her campaign material published, all other candidates must be so advised in writing and provided the same opportunity on an equal basis.” 

            Article XI, Section 1(b)(3) prohibits a labor organization from contributing “anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate.”  Further, “[n]o candidate may accept or use any such contribution.”

            Tagging the image of Miranda on the joint council’s Facebook page with the phrase “Elect George Miranda for VP on the Hoffa Hall Slate” constituted use of a union publication to support his candidacy and the candidacies of all members of the Hoffa-Hall 2016 slate, in violation of Article VII, Section 8(a) and Article XI, Section 1(b)(3).  Doing so without providing written notice to all other candidates of the opportunity to publish campaign material on the joint council Facebook profile violated Article VII, Section 9(a).

            The tag as originally applied linked the viewer directly to Miranda’s Facebook campaign profile.  Although respondent contends this profile is dormant, evidence demonstrates that it has been updated in 2015 and expressly refers to the Hoffa-Hall 2016 slate. 

            The tag that Kelly applied to Miranda’s photo on the joint council Facebook profile after the protest was filed does not remove the Rules violation.  While the replacement tag identifies the image merely as “George Miranda” and omits the overtly partisan campaign message included in the previous tag, the link established by the tag is to a profile that displays on its home page an image of Miranda as a candidate on the Hoffa-Hall slate. 

            Accordingly, 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 direct Joint Council 16 to cease and desist from publishing campaign material of candidates on its Facebook profile, including tagging photos of candidates that link the images to Facebook profiles that contain campaign material and images, unless all candidates are advised in writing and provided the same opportunity on an equal basis.  We further direct Joint Council 16 to remove the tag currently in place on any and all images of George Miranda that appear on its Facebook profile that link to any Facebook profile containing image(s) of Miranda as a candidate or otherwise identify him as a candidate or member of the Hoffa-Hall 2016 slate.

            As further remedy, we direct Joint Council 16, within five days of issuance of this decision, to post the following notice on the timeline section of its Facebook profile[5]:

a notice from the ibt election supervisor

The Election Supervisor for the IBT has found that Joint Council 16 violated the Election Rules by posting a photo of George Miranda that promoted his candidacy for International office and included a link to his campaign Facebook profile.  The Election Supervisor has further found that Miranda and the slate of candidates he is a member of violated the Election Rules by permitting that posting to occur and remain in place. 

Union publications and social media cannot be used to campaign unless all candidates are given written notice and an equal opportunity to use the union publication.  Joint Council 16 does not and is not permitted by the Election Rules to endorse or support any candidate in the IBT Officers election, and no candidate is permitted to accept union support that is not provided to all candidates.

To give other candidates for International office the same advantage that Miranda and his slate received, the Election Supervisor has ordered Joint Council 16 to post the following photos of other candidates.  Clicking the photos will take you to the Facebook profiles for those candidates.

You can read the Election Supervisor’s decision here.

Immediately beneath the foregoing notice in the timeline section of Joint Council 16’s Facebook profile, the joint council shall publish a photo supplied to it by Teamsters United slate of candidates for International office, and a photo supplied to it by any other candidate for International office who is not affiliated with a slate.  Each such photo as it is published in the joint council’s timeline shall be tagged with the word or phrase designated by the slate or candidate submitting it, and the tag shall direct the viewer to the Facebook profile designated by the submitting slate or candidate.  The slate and independent candidate(s) seeking to access this remedy shall submit the photos they desire published, the tag they desire used, and the Facebook profile url address to OES by 1:00 p.m. EDT, Tuesday, October 20, 2015.  OES will forward the information to the Joint Council 16 representative responsible for posting the remedial notice and campaign photos required by this decision.

            The foregoing notice and the tagged photos that accompany it shall remain in the timeline of Joint Council 16’s Facebook profile through and including November 20, 2015.  Following that date, the joint council shall delete the notice and tagged photos from its Facebook profile.

            This order is strictly remedial and serves the purposes of educating the parties and the membership as to the requirements of the Rules, leveling the playing field between candidates, and deterring further Rules violation.

In granting the protest and imposing this remedy, we also encourage Joint Council 16 (and other Teamster entities similarly situated) to develop a clear policy for controlling its Facebook profile so that it complies with the Rules and law prohibiting the use of union resources in union officer campaigns.  If the joint council elects to permit candidates to use its profile for partisan messages or tags, it must notify all candidates in writing with clear terms under which such postings and tags will be permitted.  On the other hand, if the joint council determines that the page is not to be used as a campaign platform, it should either monitor the page on a periodic, frequent basis to remove any tags or postings that violate the Rules or it should control its settings to permit it to review tags before they become visible to the viewing audience.

            A decision of the Election Supervisor takes immediate effect unless stayed.  Lopez, 96 EAM 73 (February 13, 1996).

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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2015 ESD 40 

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