Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: HOFFA-HALL 2016,                      )           Protest Decision 2016 ESD 333

                                                                        )           Issued: November 30, 2016

            Protestor.                                           )           OES Case No. P-401-102416-SO     

____________________________________)                      

Hoffa-Hall 2016 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 campaign posts supporting Teamsters United were impermissibly made to a Local Union 2011 Facebook page.

            Election Supervisor representative Dolores Hall investigated this protest.

Findings of Fact and Analysis

Local Union 2011 represents Florida Department of Corrections employees employed as correctional officers and supervisors, correctional probation officers and supervisors, and institutional security specialists.  The local union maintains a website titled “FDOC Teamsters” that lists the officers, business representatives, and stewards of the local union, contact information for local union representatives, the 2015-2016 collective bargaining agreement between the Florida Department of Corrections and Local Union 2011, and a membership application, among many other things.  In addition, Local Union 2011 maintains a Facebook page, also titled “FDOC Teamsters,” which is categorized with Facebook as an “organization.”  Official notices of the OES were posted to this Facebook page.

Neither the local union website nor the local union’s official Facebook page are the subject of this protest.

The protest alleged that a Facebook page titled “Teamsters Local 2011 Discussion Page” was an official organ of Local Union 2011 to which campaign material could not permissibly be published without violating Rules provisions prohibiting use of union resources to support a candidate.  The discussion Facebook page was categorized as a “Public Group,” which, as the name suggests, is a group open to all on Facebook.  Facebook describes a public group as “the place for small group communication and for people to share their common interests and express their opinion.  Groups allow people to come together around a common cause, issue or activity to organize, express objectives, discuss issues, post photos and share related content.”  Anyone could see the public group, join it, and post to it.[1] 

At the time the protest was filed, FDOC Teamsters 2011 was in the midst of a representation election administered by the Florida Public Employee Relations Commission (PERC).  The petitioner in that election was the Florida Police Benevolent Association, Inc. (PBA), the union that had represented FDOC personnel before Local Union 2011.  Local Union 2011 won a representation election against the PBA and a third union in November 2011, and the PBA had petitioned to resume representation of the unit in 2016.  The PERC distributed ballots to eligible voters that gave them the choice among three options: the PBA, Teamsters Local Union 2011, or no representation. 

On October 6, 2016, OES mailed ballots in the International officers election to all eligible members of Local Union 2011, to be returned by November 14, 2016.  On October 10, 2016, the PERC distributed ballots in the representation election, to be returned by November 15, 2016.  The time period when PERC was conducting the representation election thus overlapped with the schedule for conducting the IBT International officers election.  These two ballots generated some discussion on the Teamsters Local 2011 Discussion Page on Facebook.

First, on Saturday, October 15, 2016, at 7:21 p.m. EDT, Jason Allen[2] posted a photo of a blank IBT ballot for International officers (including the Southern Region Vice-President contest) and asked, “Is this the ballot everyone is talking about?”  At 7:35 p.m. that day Camille Norton posted in response: “That is the one to vote for Fred’s slate.  The other ballot went to your facility (teamsters v. p.b.a.).” 

The next day, Sunday, October 16, a page administrator for the Facebook page added a photo of the PERC representation election ballot as the cover photo of the page, with the square for the choice of Teamsters Local Union 2011 marked in broad felt tip pen and a large arrow drawing the viewer’s attention to that mark.  Rickey Wilcox[3] commented the following day, Monday, October 17 at 5:52 a.m., stating: “I don’t know any of these people and I’m sure most others don’t as well so someone may wanna post who we should be voting for.”  Si Billy[4] commented on Tuesday, October 18 at 10:22 p.m., “Didn’t we already have this vote twice???”  Camille Norton responded to these comments on Wednesday, October 19 at 5:17 a.m. as follows:

The ballot that you will be getting at work is the ballot for the teamsters vs the P.B.A.  The ballot that Jason Allen posted is for a international election Hoffa vs Zuckerman.  We are voting for Zuckerman.  I know it is confusing.  [V]ery sorry.  On the Zuckerman ballot all you have to do is color in the oval nest [sic] to his slate and it counts for the whole slate.

            All of the Facebook posts were made under the participant’s name with no other identifying information.  No poster referred to any job or position with the local union, or signed a post in the name of the local union.  The posts that were the subject of the protest were removed within one day after the protest was filed. 

            The protestor asserted that Norton’s posts constituted campaigning on work time, and that they were posted to what the protestor asserted was an official Facebook page of Local Union 2011, which the protest alleged constituted a union resource that may not permissibly be used for campaigning.

            Investigation found that Norton is an elected trustee of Local Union 2011.  However, neither she nor any other elected official of the local union draws any compensation from the local union.  Norton and the others are employed by the Florida Department of Corrections.  Norton in particular is employed at a correctional institution.  The employer forbids employees such as Norton from using cell phones and computers for personal communications during work hours.  The times of Norton’s posts quoted above were outside of her work hours and the posts were made outside of the workplace.  The protestor presented no evidence to counter the evidence that Norton’s posts were made on personal time using personal resources.  Furthermore Norton’s posts on a public group Facebook page, made from outside the workplace, did not involve the expenditure of union funds.  Accordingly, the first allegation concerning Norton’s posts, that they were made on time paid for by the employer or using a resource funded by the union, is not substantiated.

As to the second allegation, we conclude that the discussion Facebook page to which the Norton posts were made was a Facebook “public group” to which any post may be made and not an official publication of Local Union 2011.  Although the Facebook page description stated that the page was “moderated by the officers of the elected Executive Board of Local 2011,” no evidence was presented or found showing any restrictions on posting.  Because the page was structured as a Facebook “public group,”  any person could post to the discussion page.  Norton retained the right under Article VII, Section 12(b) “to participate in campaign activities, including the right … [to] openly support or oppose any candidate, [and] to aid or campaign for any candidate” in her individual capacity.  Accordingly, just as any other member could engage in campaign activity on the public group Facebook page without violating the Rules, so too could Norton. 

We further note two alternative and independent bases for concluding that no violation occurred here.  Although the posts in question did not violate the Rules, they were removed within one day after the protest was filed on October 24.  If the posts had been campaign material, prompt removal of such material “has often been held sufficient remedy for the protest.”  Hoffa-Hall 2016, Zuckerman and Howell, 2016 ESD 318 (October 27, 2016); see also, Hoffa-Hall 2016, 2016 ESD 64 (January 8, 2016); Halstead, 2006 ESD 386 (October 26, 2006); Wright, 2006 ESD 361 (October 2, 2006); Leedham Slate, 2006 ESD 301 (July 5, 2006); Halstead, 2005 ESD 31 (June 6, 2005); Domeny, 2001 EAD 499 (October 5, 2001); Speak, 2001 EAD 239 (March 14, 2001).  Were it necessary to reach this issue, we would conclude that prompt removal resolves any violation. 

Finally, as the International officers election ballot tabulation has concluded, we consider the protest in the post-election context.  Rules, Article XIII, Section 2(f)(2).  OES records show that 297 ballot envelopes were returned from members of Local Union 2011:  285 were from members deemed eligible, 12 were challenged, and 1 was void, leaving 284 ballots for tabulation.  Seventy-one percent of the ballot envelopes returned from Local Union 2011 were received by Saturday morning, October 22, 2016, three days after Norton made her last, most explicitly partisan, post.[5]  We therefore conclude that those ballots were mailed before the Facebook postings challenged in the protest.  Even assuming that the votes of 87 Local Union 2011 members were influenced by the postings, the lowest winning margin in a relevant election was 2,433 votes (Southern Region Vice-President).  If the postings were construed to be a Rules violation (and we reject that conclusion), there would be no basis whatsoever to support the existence of a “definitive and causal link between the [alleged] violation and the outcome.”  Richards, 01 EAM 82 (supplemental) (May 14, 2001) (emphasis in original).

For all of the foregoing 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 333

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