Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: TEAMSTERS UNITED,               )           Protest Decision 2016 ESD 282

                                                                        )           Issued: August 19, 2016

            Protestor.                                           )           OES Case No. P-327-072016-NA     

____________________________________)                      

Teamsters United 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 a number of local unions failed or refused to produce email lists of their members to the vendor with which Teamsters United contracted to provide blast campaign email services to the slate.

            This decision addresses only the circumstances surrounding Local Union 2010’s email list and the defense to the protest presented by that local union.  Election Supervisor representative Deborah Schaaf investigated this protest.

Findings of Fact and Analysis

Article VII, Section 7(d) provides for email distribution of campaign material, viz.

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.

Local Union 2010 is comprised of some 14,000 employees of the University of California system.  A nearly universal number of such members have email addresses provided by the employer.  The employer has supplied the email addresses of its employees, which it updates periodically, to the local union.  The local union has supplemented this list with email addresses of the small number of members who do not have UC email addresses.  Local Union 2010 uses this list to communicate with and update its members on matters of concern to the membership.

            Our Advisory on Rights of Candidates to Distribute Campaign Literature to Members Using IBT International Union and Local Union Email Lists (March 8, 2016) requires the IBT and local unions that possess lists of their members’ email addresses to permit candidates to use those lists for campaign purposes.  Under the Advisory, a “covered list” is a list that consists of “a) email addresses used by the IBT or a local union to communicate with all or a portion of the body’s membership; or b) email addresses obtained because the union asked for them, collected them, or were given them.” 

The list Local Union 2010 possesses is a “covered list” under the Advisory for two reasons: the union uses the email addresses to communicate with its members, and the union “asked for [the email addresses], collected them, or were given them,” whether by the employer or by individual members.  Accordingly, Local Union 2010 must make the list available to candidates for campaign purposes.

The local union does not dispute its obligation to make the list available for campaign use under the Rules and the Advisory.  However, it seeks to limit to a total of eight the number of times a campaign may use the list to send blast emails.  The local union attempts to justify this limitation with two arguments, both of which propose that any higher number of blast emails by a campaign will have the tendency to harm the local union’s ability to communicate with its members.  First, the local union argues that a campaign’s use of the email list in numbers higher than eight will cause subsequent email messages sent by the local union to its membership to be marked as “spam,” thus interfering with the union’s ability to communicate with its members.  Second, the union argues that email blasts by a campaign greater than eight in number will tend to cause members frustrated with the volume to unsubscribe from the email blasts, with negative impact on the local union’s ability to communicate with the members.

We note first that the local union’s request for a limit on the number of times a campaign may use the email address list to communicate its message to the membership is inconsistent with USDOL’s Guide to Union Elections, which declares in the analogous circumstance of campaign mailings that a union “may not limit the number of mailings which a candidate is permitted to make.”  A USDOL listing of “Frequently Asked Questions Concerning Union Officer Elections” provides this further guidance specific to email communications: 

Q14. Is there a limit on how often a candidate can send out campaign material via e-mail versus regular mail?

A14. A request to distribute campaign material using either e-mail or regular mail is the same: the union must comply with all reasonable requests and the candidate must bear the cost.

https://www.dol.gov/olms/regs/compliance/Electionsfaqgen.htm#17 (Last Updated 11/26/07).  Like the USDOL, we find no principled basis for distinguishing postal mass mailings from email transmissions.

Moreover, we find no compelling rationale for the limitation the local union seeks, because the local union’s argument is built on an incorrect assumption.  The union assumes that the campaign literature emails will be sent from, and identified to, the same email address that the local union uses to transmit its own mass emails.  Were this the case, the union contends that the additional volume that campaign emails might add to the total number of emails sent from the same sender’s email address the local union uses to communicate with its members may cause spam filters and email firewalls to identify all such mass emails as spam or prompt members receiving them to unsubscribe from all emails sent by the same sender.

The union’s assumption that the sender email address used for campaign email blasts is the same the local union uses for its member updates is incorrect.  Protestor Teamsters United will send its campaign email blasts from a Teamsters United domain name.  For our discussion here, this intention serves two important purposes.  First, along with other information contained in the email subject line, the body of the email, and the required disclaimer each campaign email must contain, use of a sender email whose domain name is identified with the campaign will identify the email message as coming from the campaign rather than the local union, thus minimizing the possibility that any member may conclude that the local union is advocating electoral support for a particular candidate.  Second, and to the local union’s argument presented here, if a campaign’s mass emails are snared by email spam filters or email firewalls or identified as spam by a recipient who clicks the “report abuse” or “report spam” button or the “unsubscribe” link, such designation will apply to the sender’s email address and IP address, which is the campaign’s and its third-party vendor and not those of the local union.  Accordingly, campaign blast emails marked as spam or that prompts a recipient to unsubscribe will not affect the email blasts the local union sends. 

For these reasons, we GRANT the protest and order Local Union 2010 no later than Monday, August 22, 2016, to forward its email list to the vendor designated by protestor Teamsters United.  We further order Local Union 2010 to refrain from placing or attempting to place any limitation on use of the list that is inconsistent with the Rules, our Advisory, and this decision.  Local Union 2010 shall submit a declaration of compliance with this order, made under penalty of perjury, to OES no later than Tuesday, August 23, 2016.

In issuing this order, we note UC’s Electronic Communications Policy, which governs the system on which a high percentage of the members on Local Union 2010’s email list have email addresses.  The policy prohibits “interference” with the system, viz.

University electronic communications resources shall not be used for purposes that could reasonably be expected to cause excessive strain on any electronic communications resources, or to cause interference with others' use of electronic communications resources.

Users of electronic communications services shall not: (i) send or forward chain letters or their equivalents in other services; (ii) "spam," that is, exploit electronic communications systems for purposes beyond their intended scope to amplify the widespread distribution of unsolicited electronic messages; (iii) "letter-bomb," that is, send an extremely large message or send multiple electronic messages to one or more recipients and so interfere with the recipients' use of electronic communications systems and services; or (iv) intentionally engage in other practices such as "denial of service attacks" that impede the availability of electronic communications services.

We expect all campaigns using the Local Union 2010 email list to honor this aspect of UC’s policy.

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 282

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):