Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: MARIO LEYVA,                            )           Protest Decision 2016 ESD 139

                                                                        )           Issued: March 7, 2016

            Protestor.                                           )           OES Case No. P-156-020916-SO     

____________________________________)

            Mario Leyva, member of Local Union 745, 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 Brent Taylor, principal officer of Local Union 745, made an impermissible union endorsement of his slate in the delegates and alternate delegates election.

            Election Supervisor representative Dolores Hall investigated this protest.

Findings of Fact and Analysis

            Ballot packages in Local Union 745’s delegates and alternate delegates election were mailed February 8, 2016.  At about that time, supporters of the Local 745 Members Against TDU Slate distributed an “An Open Letter to the Members of Teamsters Local 745,” campaigning for the slate and attacking the opposing slate.  The protest alleged that the campaign flyer’s author, Brent Taylor, violated the Rules by listing his title (“Teamsters Local 745 Secretary-Treasurer”) beneath his name, an act the protest alleged constituted an impermissible union endorsement of Taylor’s slate.  The protest further alleged that the letter was posted on Local Union 745’s Facebook page and was distributed to members by union stewards, actions the protest alleged were impermissible uses of union resources to campaign.

            Investigation showed that the flyer was prepared and duplicated on personal time with personal resources; that the Facebook page to which it was posted is not an official page of the local union but rather is an open forum to which any member may post; and that stewards distributed the flyer in employer breakrooms and parking lots on personal time.

            Taylor’s use of his title on the flyer is not a union endorsement that violates the Rules.  In Hill , 2011 ESD 136, we discussed whether a union official’s use of his title on a campaign flyer constituted an impermissible union endorsement of a candidate.  Thus:

Article VII, Section 12(b) of the Rules declares that “[t]he Union or a Local Union as such or the General Executive Board or an Executive Board of a Local Union as such may not endorse or otherwise advance a candidacy, even if all members agree on the endorsement or candidacy.”

Precedents under this provision make clear that endorsements by the Union or Local Union are prohibited.  Pope, 2000 EAD 3 (August 1, 2000) (endorsement resolution adopted at formal meeting of construction trades conference held improper); Jensen, 2001 EAD 479 (September 28, 2001), aff’d, 01 EAM 93 (October 3, 2001) (invitation to campaign rally from “the elected officers and business agents” of the local union violated the Rules).

In Jones, 2001 EAD 222 (March 8, 2001), the Election Administrator held that the endorser had the same right to endorse as any other member and used his title as local union officer to identify himself, not to convey official union action. See also, Sandford, 2006 ESD 142 (April 3, 2006).  In allowing the endorsement, the Election Administrator wrote:

The relevant precedent reveals a distinction between an endorsement by a local union institution, which is prohibited, and an endorsement by individual members who comprise a local union institution, which is permitted.

“[T]he Rules do not prohibit the members of an Executive Board from identifying themselves as such when [endorsing] candidates; as long as the endorsement is not made as an official endorsement of the Executive Board as an entity, but as individual endorsements by the members of the Executive Board, the Rules are not violated.”  [Citation omitted].  In Custer, [P1098 (November 18, 1991)], the Election Officer reiterated the distinction: “While members of the Local Union and Local Union officers have the right as individuals to express their preferences for particular candidates, the Local Union and the Local Union Executive Board as institutions cannot … endorse candidates.”

Jones, 2001 EAD 222 (March 8, 2001) (emphasis added).

We followed this precedent in Jensen, 2006 ESD 167 (April 25, 2006), aff’d, 06 EAM 37 (May 12, 2006), viz.

Under the Rules and Election Office precedents, endorsement by the Union or Local Union “as such” is essential to finding a violation of Article VII, Section 12(b).  Our precedents have given broad scope to individuals, and to groups of union members, who have endorsed candidates and used their titles for identification purposes in connection with the endorsement.  What we have strictly prohibited under the Rules are endorsements that come from the Union or Local Union “as such.”

Here, Taylor’s use of his title on the campaign flyer was for identification purposes in connection with his endorsement of his slate in the delegates and alternate delegates election.  It did not convey the endorsement of the local union “as such” and therefore did not violate the Rules.

For these reasons, we DENY this 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:

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 139

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