Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: BROTHERHOOD OF MAINTENANCE           )           Protest Decision 2016 ESD 299

            OF WAY EMPLOYES DIVISION,           )           Issued: October 7, 2016

                                                                                    )           OES Case No. P-367-092316-NA

            Protestor.                                                       )

__________________________________________)                      

The Brotherhood of Maintenance of Way Employes Division, a subordinate body of the IBT, 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 closed Facebook forum violated the Rules by misrepresenting itself as the BMWED labor organization in order to present partisan campaign material; the protest further asserted that the Facebook page impermissibly used content appropriated from official BWMED material.

            Election Supervisor representative Paul Dever investigated this protest.

Findings of Fact and Analysis

The Facebook page in question is titled “Brotherhood of Maintenance of Way Employees BMWED (Members Forum – UNOFFICIAL).”  It is administered by Rob Atkinson, a member on honorable withdrawal from Teamsters Local Union 538 and not a member of the BMWE Division.  The page is not owned, sponsored, or administered by or on behalf of the protestor.

We were provided with screenshots of the Facebook page that showed partisan posts promoting Teamsters United candidates and disparaging Hoffa-Hall 2016 candidates.

Protestor BMWED asserted that the Facebook page violates the Rules because it leaves the impression that the partisan content is that of the protestor.  This occurs, the protestor argues, because the page either represents itself as that of the protestor or fails sufficiently to distinguish itself from the protestor, with the result being that users who visit the page may be misled to the conclusion that the protestor was the page sponsor. 

The page is categorized on Facebook as a “Closed Group.”  Under Facebook’s terms of use, any user may find a Closed Group in a browser search and, when visiting the page, may see the Closed Group’s name, its members, and description.  However, only current members of the Closed Group may post to the page, and the posts of current members of the group may be seen only by other members of the group.[1]  Persons may join a Closed Group by being added or invited by a member. 

The analytical framework the Rules provides for assessing this protest starts with Article VII, Section 12(c), which broadly prohibits use of union facilities “to assist in campaigning.”  Further, Article VII, Sections 8 and 9 bar use of a “publication or communication financed, sponsored or used, directly or indirectly, by a Union (including a social media site) … to support or attack any candidate or the candidacy of any person.”  Definition 5(f) declares that “campaign contribution” includes “[a]n endorsement or counter-endorsement by an individual, group of individuals, or entity.”  These provisions establish that a union is prohibited from endorsing a candidate.  Leedham Slate, 2006 ESD 380 (October 26, 2006).  But moreover, an individual or group of individuals is prohibited from representing that a union has endorsed a candidate, even if the union itself has not made what would be a prohibited endorsement.  Rivers, 2011 ESD 137 (February 24, 2011) (candidate’s claim that the union “backs” his candidacy violated the Rules); Collins & Strohl, 2011 ESD 143 (March 2, 2011) (candidate impermissibly appropriated a prohibited union endorsement with a flyer to the local union membership that did not identify the sender but listed the “International Brotherhood of Teamsters” as the return address, giving the impression that the IBT had mailed the campaign flyer to local union members).  A candidate or a candidate’s supporters can avoid appropriating an improper union endorsement in a social media context by demonstrating clearly that the social media page is not sponsored or authorized by the union.  Hoffa-Hall 2016, 2015 ESD 41 (October 16, 2015) (a Facebook page that was designated an unofficial members’ forum and included a disclaimer that the page was not published or sponsored by a labor organization was found not to violate the Rules). 

The protestor here asserted that the Facebook page represented itself, intentionally or inadvertently, as being sponsored by the protestor, thereby making a prohibited endorsement.  The evidence protestor presented included the following: 1) use of the name of the labor organization; 2) use of the logo of the organization; and 3) the reprinting of an excerpt of the protestor’s history drawn from the protestor’s website. 

After careful review of the Facebook page and protestor’s arguments, we find that the page neither impermissibly used union resources to support a candidacy nor impermissibly appropriated the protestor’s endorsement of particular candidates by failing adequately to declare that the page was not sponsored by the protestor.

We address the protestor’s three arguments in the order presented.

First, the name of the Facebook page is different than the protestor’s name, minimizing the likelihood of confusion.  Thus, the full name of the protestor, as reflected on its stationery, is “Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters.”  In contrast, the Facebook page is titled “Brotherhood of Maintenance of Way Employees BMWED(Members Forum – UNOFFICIAL),” excising “Division” and the reference to the IBT and adding that it is organized as a Members Forum and is unofficial.[2] 

Despite these differences, the protestor argues that the full name used by the Facebook page is too long to be displayed on its banner.  Instead, Facebook software truncates the name to “Brotherhood of Maintenance of Way Employees BMWED(Me…,” so that the page title does not display that the page is a member forum that is unofficial.  We find, however, that this circumstance is ameliorated by two facts.  First, a click on the list of members displayed on the page, a function that is available to any visitor to the page, reveals the full, untruncated title of the Facebook page, including its designation as an unofficial members forum.  Second, the “Description” of the page, also available to any visitor, includes language declaring that the page is unofficial and is not published or sponsored by any labor organization.  These disclaimers make clear the lack of union sponsorship or endorsement of whatever the page presents.  Hoffa-Hall 2016, 2015 ESD 41 (October 16, 2015). 

Turning to the protestor’s second assertion, use of the union logo, the banner on the Facebook page includes a close-up rendering of a portion of the BMWED logo.  Article XI, Section 1(b)(6) provides, in part, that “use of the Union’s name, insignia, or mark by Union members, in connection with the exercise of rights under these Rules, is permitted.”  For this reason, we find that use of the logo on the Facebook page does not violate the Rules.

Finally, the protestor asserts that the use by the Facebook page of a portion of the BMWED history from its official website may mislead a naïve user to believe that it is sponsored by the protestor; further, the protestor claims such use is a copyright infringement.  The full text of the BMWED’s history on its website is reprinted below; the text that is marked in bold is the portion that appears on the Facebook page description, with changes to that text made on the Facebook page appearing in brackets.

The history of the advance and growth of American railroads is an episode in the saga of a people’s restless urge to explore and to move on.  Heeding that urge, these people expanded into the far corners of the North American Continent, moving as slow or as fast as their means of transportation allowed.  This movement began in earnest only after the railroad's steel web was spun from coast-to-coast.  Once the rail system was established, the great construction gangs began to settle down and maintain that which they had built.  But, while the robber barons of the early railroads amassed great fortunes, their employees worked from dawn to dusk for pennies a day without insurance, vacations or means of support after years of hard work.  It was these conditions that inspired early rail workers to organize collectively and form unions to protect their common interests.

  
One such union was the Brotherhood of Maintenance of Way Employes (BMWE).  The Brotherhood of Maintenance of Way Employes - later to become the Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters (BMWED) - is a national union representing the workers who build and maintain the tracks, bridges, buildings and other structures on the railroads of the United States.  Founded in 1887, at Demopolis, Alabama, as a fraternal organization by Track Foreman John T. Wilson, the BMWED membership forms a cross section of American culture.  Their [Our] goals, interests and political backgrounds are as diversified as their [our] heritage. Once an International union with over 350,000 members in the United States and Canada, automation, the rise of the trucking and airline industries, coupled with the policies of a conservative government, has depleted the ranks of the BMWED to under 40,000 members.  Since the passage of the Staggers Rail Act of 1978, railroad management, using competition as an excuse and the anti-union climate as an ally, has been selling or abandoning the nation's rail system.  Realizing that our country is losing a vital link in its transportation network, the BMWED struggles to reverse this trend.  Using our rich history as a guide - drawing on the strength of the union - we confront management in the halls of Congress and the State Legislatures, through use of our newspaper the BMWED Journal, the nation’s court system and at the bargaining tables.

  
It was in 2004 that the BMWE merged with the International Brotherhood of Teamsters and consolidated its strength with that of the powerful 1.4 million member Teamster Union. As a part of the Teamster Rail Division the Brotherhood of Maintenance of Way Employes Division continues the battle that John T. Wilson courageously fought in the face of so much opposition.  

Rail labor leaders continue the fight today for job security, better working conditions, fair wages and benefits, improved safety conditions and elimination of massive cutbacks. The benevolent society that started with a few trackmen on a hot July day in Alabama has shown that it can meet the challenges and problems of an ever-changing industry and will continue to protect its members' rights as it has for more than a century. 

Thus, the Description section of the Facebook page uses four sentences of the eighteen-sentence history published on the protestor’s website and adds the following at the end of the Description: “This page is an ‘unofficial’ page designed to inform our Teamsters rank and file brothers and sisters about issues specific to the BMWED.  This page is not published or sponsored by any labor organization including the BMWED.”

            We reject the protestor’s assertion that the use of two brief excerpts in the Description section of the Facebook page, drawn from the much longer history that appears on the BMWED website, might mislead users that the Facebook page is sponsored by the BMWED.  We reach this conclusion in small part because the excerpts used do not carry a unique, distinguishing, or recognizable voice associated specifically with the protestor; in addition, the information conveyed is generic.  Most important to our determination on this issue, the disclaimer that follows those sentences states explicitly that the page is not that of the protestor or of any other labor organization. 

            As for the protestor’s assertion of copyright infringement, the enforcement of copyright law is outside the scope of the Rules.

For members of the Closed Group who had access to any partisan campaign material posted to the page, the page’s presentation made clear that it was not any sort of official union presentation.[3]  There is even less of an issue regarding Facebook visitors outside of the Closed Group who might find the page.  Such a visitor may see the group’s name, its members, and its description (including the “unofficial” disclaimer) and so it would appear in every respect to be an “unofficial” page.  That the title of the page as displayed in the banner is truncated and does not show “Members forum – UNOFFICIAL” is of no consequence.  A non-member visitor to the page cannot even see partisan material and so would have no indication that the page contained any partisan viewpoint.

            For the reasons stated, 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 299

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