Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: ANDREW SMITH and                  )           Protest Decision 2016 ESD 247

            TEAMSTERS UNITED,                 )           Issued: June 16, 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

In Smith & Teamsters United, 2016 ESD 209 (May 9, 2016), we found that Carolyn Flemister, violated the Rules by sending a blast email to some 700 food service managers, among others, supporting the Members With Middleton slate, attacking the Teamsters United 572 slate, and criticizing the Election Supervisor’s decision ordering a rerun of the local union’s delegates and alternate delegates 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. 

Our investigation in that case found that LAUSD had 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 had created an email distribution list within its Food Services Division that permits blast email communications to Food Service Managers.  Flemister stated that she had access to this email distribution list in her capacity as a supervisor to distribute official LAUSD advisories and directives as the need arose.  The authority to send blast emails using this email distribution list was 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, did not have access to the distribution list, and were not able to communicate using that list either by originating blast emails or by a “reply all” response to blast emails they have received. 

On these facts,[1] we found that the protests presented 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 did not have that access?  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, render this use of employer-provided email to disseminate campaign material a prohibited employer contribution to the Members with Middleton slate?  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 decided the first issue and deferred the remaining issues for further investigation.  We held 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 held 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 concluded 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 found 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.  We therefore granted the protests, ordered Flemister to cease and desist from further Rules violations, ordered transmittal of a remedial notice to all members who received Flemister’s blast email, and ordered that Teamsters United 572 be permitted to send a blast campaign email to the same membership segment.  Smith & Teamsters United, 2016 ESD 209 (May 9, 2016).

We now take up the issues we deferred in the initial decision.

We hold that Flemister’s classification and rank as a supervisor of bargaining unit members, with the authority to direct their work, did not make it a Rules violation as an employer contribution to the Middleton slate for her to use her rank as supervisor to tell subordinate employees how to vote.  This holding follows from a unique aspect of the applicable California labor relations statute, which permits supervisory employees to belong to a union and be included in the same bargaining unit, represented by the same union, with the subordinate employees they supervise.  Were the employees here have been employed in the private sector, subject to jurisdiction of the National Labor Relations Act, as amended, Flemister may have been excluded from the bargaining unit as a supervisory employee under Section 2(11) of that Act.  Were that to be the case, we would have to consider whether her email urging subordinate employees how to vote would constitute an impermissible employer contribution.

In this case, Flemister is lawfully included in the bargaining unit and is a member in good standing of Local Union 572.  She had the same right under the Rules as every other member to engage in campaign activity and support or oppose any candidate.  Therefore, although we held previously that Flemister’s use of the employer-provided blast email function violated the Rules, we find that Flemister’s status as a supervisor of the rank of members to whom she sent the blast email did not itself constitute an impermissible employer contribution to the Middleton slate.

Turning to the other issue we deferred in Smith & Teamsters United, we reject the contention that Flemister’s access to and use of the appeal filed by the local union in Halstead, 2016 ESD 166 (April 8, 2016), constituted impermissible use of a union asset for a campaign purpose.  The appeal was filed by the local union and was distributed to all parties to the decision, including individuals who represented candidates, slates, and campaigns.  As such, the appeal was a public document and could not be deemed a union asset that was off limits for campaign use.  Wood, 2011 ESD 211 (April 14, 2011).

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 247

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