Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: ANDREW SMITH and                  )           Protest Decision 2016 ESD 209

            TEAMSTERS UNITED,                 )           Issued: May 9, 2016

                                                                        )           OES Case Nos. P-278-050416-FW   

            Protestors.                                          )                       & P-280-050516-FW

____________________________________)                                                                 

Andrew Smith, an employee in Local Union 572’s LAUSD bargaining unit, 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 questioned whether “upper level management” at the Los Angeles Unified School District could permissibly use LAUSD email resources “to back a candidate.” 

Teamsters United, a slate of candidates for International office, filed a separate pre-election protest alleging an impermissible employer contribution to the Members with Middleton slate.

            Election Supervisor representative Michael Miller investigated these protests.  They were consolidated for this decision.

Findings of Fact and Analysis

Local Union 572 is entitled to elect twelve delegates and seven alternate delegates.  In Halstead, 2016 ESD 166 (April 8, 2016), aff’d, 16 EAM 16 (April 21, 2016), we ordered Local Union 572 to rerun its delegates and alternate delegates election because of serious Rules violations committed by employers and the local union in the original election.  Ballots were mailed on May 3, 2016 and are to be counted on May 27, 2016.  The Teamsters United 572 slate and the Members with Middleton slate are competing in this election.

At issue in these protests is an email Carolyn Flemister sent supporting the Members with Middleton slate, attacking the Teamsters United 572 slate, and criticizing the decisions ordering and affirming the order of a rerun election. 

Flemister is an LAUSD Area Food Services Supervisor, a 2^nd tier management position.  In its Food Services Division, LAUSD employs some 25 Area Food Services Supervisors and nearly 700 Food Service Managers.  Both classifications are included within the same bargaining unit – the “Unit S (Classified Supervisors)” bargaining unit – that was certified by the California Public Employment Relations Board in 1998.  As an Area Food Services Supervisor, Flemister personally supervises 23 Food Service Managers within her assigned territory. 

LAUSD has assigned email addresses to all Area Food Services Supervisors and Food Service Managers, among many other employees.  The email addresses have an “lausd.net” domain name.  LAUSD has created an email distribution list within its Food Services Division that permits blast email communications to Food Service Managers.  Flemister states that she has access to this email distribution list in her capacity as a supervisor to distribute official LAUSD advisories and directives as the need arises.  The authority to send blast emails using this email distribution list is restricted to employees at Flemister’s rank of Area Food Services Supervisor and higher.  As such, persons employed as Food Service Managers, the classification that is subordinate to Flemister’s title, do not have access to the distribution list, and are not able to communicate using that list either by originating blast emails or by a “reply all” response to blast emails they have received. 

Investigation showed that both the Teamsters United 572 slate and Members with Middleton slate used a union-compiled email list to send email blasts to Local Union 572 members touting their credentials for office.  This activity was authorized by Article VII, Section 7(a)(4).  These blasts were also sent to LAUSD employees, many of whom are Food Service Managers. 

In addition to her duties as a supervisor of Food Service Managers, Flemister also is a steward for Local Union 572, a position she has held for some ten years.  Flemister told our investigator that the campaign emails LAUSD employees received had prompted them to ask her, a steward, what was going on, what the merits of the rerun were, what went wrong, and how they should vote.  She said she received these questions via phone, email, and in face-to-face interactions.  In an attempt to address these questions and minimize the interruptions she said they caused her during the workday, Flemister told our investigator she decided to send an email blast to the approximately 710 bargaining unit members in the LAUSD Food Services Division, explaining her opinion on the situation and stating her advocacy for Middleton.  She said she made this decision on her own, with no prompting from any source.

Flemister said she composed the email on her home computer early in the morning on April 28 before she went to work.  The email shows it was sent at 4:19 a.m. PDT that date.  To send the email blast, Flemister said she logged into her LAUSD work email server remotely from her home computer to use the restricted-access LAUSD email distribution list that allowed her to blast her communication to all Food Services Division employees in the Area Food Services Supervisor and Food Service Managers classifications.  Flemister told our investigator that it did not occur to her that her use of this restricted-access LAUSD email distribution list to advocate for Middleton might be improper.  Neither Flemister nor protestor Smith could recall any previous instance where the restricted email distribution list was used for anything other than distribution of official LAUSD advisories and notifications.  Flemister said she sent the blast email only to make her life easier and address all the questions she was getting from the members, who had reached out to her for guidance on the election since she was their steward. 

The email Flemister sent carried the subject line, “Don’t Believe The Hype!  Vote for Rick Middleton.”  The body of the email was addressed, “Hello to All Food Services Division Unit S Employees.”  The email read in part as follows:

I know you have received emails from those impostors claiming to be 572. Just to be clear – Teamsters United 572 is NOT on your side. They don’t even have an LAUSD candidate on their slate! But they are emailing you and some of you have asked me or other Teamsters Shop Stewards – is what they say true? Did Rick Middleton cheat on the last election? Is it true he’s going to double our dues? The answer is NO!

***

Rick Middleton, Linda Ward and Dart Cathirell (and Adriana) have done a lot for us at Food Services since they have had leadership roles

***

What have those other guys done for us? Nothing! They won’t represent you at the National Convention because they can’t! They have no one from LAUSD on their team! We need to send a message LOUD and CLEAR – not only to those impostors, but to our coworkers and friends who have taken the leap to become delegates – we need to tell them we are all MEMBERS WITH RICK MIDDLETON and we need to vote for them when we get our ballots!

The last time, only 26 votes separated the two teams – about 500 of those came from LAUSD.  We need to do better than that!  EVERYONE needs to vote.

I have attached a sample ballot to this email. All you need to do is check the box next to the Members with Rick Middleton Slate and that votes for everybody!  Don’t mark anything on that other side or they get the vote!

(Bold emphasis in original.)

Flemister’s email stated that she “read all 86 pages of the appeal” Local Union 572 filed to the Election Supervisor’s decision in Halstead.  She also recited criticisms of the decision that the local union had presented on that appeal, including factual claims the local union had made for which there was no evidence.  Finally, she attached a Members with Middleton campaign flyer to her email.

No communication was sent to the recipients of the Flemister blast email by or on behalf of the Members with Middleton campaign disavowing Flemister’s email or directing recipients to disregard it.

            Flemister ended her email with her work email signature, viz.

Carolyn Flemister

Area Food Services Supervisor

LAUSD- Food Services Division

[Phone redacted]

[Email address redacted]

Flemister told our investigator that LAUSD policy permits her and all employees to use her employer-provided email address for any purpose that is not pornographic or bullying.  Robert Samples, LAUSD Assistant Co-Director of Labor Relations, told our investigator that LAUSD employees may use their employer-provided email addresses for personal reasons so long as they do not break the law or engage in unprofessional conduct. 

Protestor Smith is not one of Flemister’s subordinates; he reports to a different Area Food Services Supervisor, but he received Flemister’s email because she sent it to everyone in the local union Food Services Division bargaining unit.   

These protests present three issues.  First, did Flemister’s use of an employer-provided, restricted-access email distribution list to disseminate campaign material violate the Rules, where the authority to use the blast email distribution list was limited to a small segment of the Food Services portion of the bargaining unit and where the overwhelming majority of employees in this portion of the bargaining unit were not enabled to utilize the blast email distribution list?  Second, although Flemister is a member and a steward, did her classification and rank as a supervisor of bargaining unit members, with the authority to direct their work, make it a Rules violation as an employer contribution to the Members with Middleton slate for her to utilize an employer-provided email service and her title as supervisor to tell subordinate employees how to vote?  Third, did Flemister’s access to and use of the local union’s 86-page appeal in Halstead as the basis for her campaign email to Food Services Division bargaining unit members constitute an impermissible campaign use of a union asset?

We decide the first issue here and defer the remaining issues for further investigation.  The Rules provisions that provide the framework for our decision are the following.

Article XI, Section 1(b)(2) declares that “[n]o employer 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.  No candidate may accept or use any such contribution. … These prohibitions extend beyond strictly monetary contributions made by an employer and include contributions or use of employer stationery, equipment, facilities, and personnel.”

Article VII, Section 12(d) provides the following, in part: “no restrictions shall be placed upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events, or engage in similar activities on employer or Union premises.  Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis.”

Under Article VII, Section 12(a), “[a]ll Union members retain the right to participate in campaign activities, … including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.”

We find that Flemister as a member had the right under Article VII, Section 12(a) to support or oppose any candidate and to aid or campaign for any candidate.  We further find that Flemister had a pre-existing right to use her employer-provided email address to communicate her support for and opposition to candidates in the election.   

However, we find that the restricted-access email distribution list that Flemister used to blast her campaign communication to more than 700 bargaining unit members constituted employer equipment and facilities within the meaning of Article XI, Section 1(b)(2) because it was an employer-provided email distribution system.  We further find that Flemister’s use of the restricted-access email distribution list violated the Rules because it was not available for all members to use on a non-discriminatory basis.  Flemister had access to the restricted email distribution list because of her rank.  Non-supervisory personnel, who comprised the vast majority of the other bargaining unit members, did not have such access.  Thus, while all bargaining unit members had the ability to use their email addresses to send individual email messages to co-workers that expressed their views on candidates and slates, if they had the email addresses of those co-workers, Flemister had a platform, in the form of the restricted-access email distribution list, by which she could reach all bargaining unit members employed in the Food Services Division with a single click of the “send” button.  As a supervisor, Flemister could use the restricted-access email distribution list, an employer-created resource, while that facility or opportunity was not equally available to nearly all the other bargaining unit members in the Food Services Division.  Accordingly, reading Article XI, Section 1(b)(2) together with Article VII, Section 12(d), we hold that Flemister’s use of the employer-provided equipment and facility in the form of the restricted-access email distribution list violated the Rules because it was not available to all members employed in the LAUSD Food Services Division on a non-discriminatory basis.  Because of the discriminatory use of the employer asset, we find an impermissible employer contribution to the Members with Middleton campaign.  We further find that the Members with Middleton campaign accepted the impermissible employer contribution, which itself is a violation of the Rules, by failing to disavow it.

For this reason, we GRANT these protests.

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 order Carolyn Flemister to cease and desist from further violations of the Rules.

The list of email addresses to which the blast email we find violated the Rules was sent has been provided to us during the course of this investigation.  As additional remedy for the violation, we will transmit the “Notice to All LAUSD Food Service Division Unit S Members from the IBT Election Supervisor” attached to this decision to all email addresses on that list at 9:00 a.m. PDT on Tuesday, May 10, 2016.  This portion of the remedy is strictly remedial in nature and is intended to inform the recipients of the blast email of the Rules’ requirements, of the fact that the Rules were violated, and the identity of the person who committed the violation.

We will make the list of email addresses to which the blast email we find violated the Rules was sent available to the Teamsters United 572 slate for the purpose of sending one blast campaign email to the persons on the list.  We will provide the list to a blast email vendor designated by Teamsters United 572 on receipt from that vendor of the assurances required by Article VII, Section 7(a)(4) and the last paragraph of our Advisory on Rights of Candidates to Distribute Campaign Literature to Members Using IBT International Union and Local Union Email Lists (March 8, 2016).  The Teamsters United 572 slate shall pay the vendor’s invoice for this service.  The Members with Middleton slate shall reimburse the Teamsters United 572 slate for the full amount of the vendor’s invoice for this service; such reimbursement shall be tendered no later than three (3) calendar days after the date on which the invoice is transmitted by email to David Hoffa, counsel for the Members with Middleton slate.

We defer to further investigation and subsequent decision the additional remedy or remedies, if any, to be imposed on the Members with Middleton slate for the prohibited benefit it received as the result of Flemister’s impermissible use of the employer’s restricted-access email distribution list.

We take this action promptly because ballots were mailed on May 3, 2016 and have arrived at members’ homes or, if not, their arrival is imminent.

A remedial order of the Election Supervisor takes immediate effect unless stayed.

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

            2016 ESD 209

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC 20001

braymond@teamster.org

David J. Hoffa

1701 K Street NW, Ste 350

Washington DC 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

Teamsters United

315 Flatbush Avenue, #501

Brooklyn, NY 11217

info@teamstersunited.org

Louie Nikolaidis

350 West 31^st Street, Suite 40

New York, NY 10001

lnikolaidis@lcnlaw.com

Julian Gonzalez

350 West 31^st Street, Suite 40

New York, NY 10001

jgonzalez@lcnlaw.com

David O’Brien Suetholz

515 Park Avenue

Louisville, KY 45202

dave@unionsidelawyers.com

Fred Zuckerman

P.O. Box 9493

Louisville, KY 40209

fredzuckerman@aol.com

Andrew Smith

Andrew.smith@lausd.net

Teamsters Local Union 572

450 E. Carson Plaza Dr.

Carson, CA 90746

info@teamsters572.org

erosenfeld@wkclegal.com

Carolyn Flemister

Area Food Services Supervisor

LAUSD-Food Services Division

carolyn.flemister@lausd.net

Rick Middleton

For Members with Rick Middleton

rmiddleton@teamsters572.org

Michael Miller

P.O. Box 251673

Los Angeles, CA 90025

miller.michael.j@verizon.net

Deborah Schaaf

1521 Grizzly Gulch

Helena, MT 59601

dschaaf@ibtvote.org

Jeffrey Ellison

214 S. Main Street, Suite 212

Ann Arbor, MI 48104

EllisonEsq@aol.com