Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: JAMES CURBEAM,                      )           Protest Decision 2021 ESD 46

                                                                        )           Issued: January 25, 2021

Protestor.                                           )           OES Case No. P-057-011921-SO

____________________________________)

James Curbeam, member of Local Union 480 and candidate for International office on the Teamster Power slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Lendon Grisham, member and president of Local Union 480, violated the Rules by posting a campaign endorsement on his campaign and personal Facebook pages without stating that he used his union title for identification purposes only and by using his union-provided office as the setting for the posed photo that accompanied the endorsement.

Election Supervisor representative Dolores Hall investigated this protest.

Findings of Fact and Analysis

Grisham is a candidate for delegate on the Members 1^st slate.  At 10:35 a.m. CST on January 18, 2021, a campaign endorsement of the O'Brien-Zuckerman 2021 slate of candidates for International office was posted to his campaign Facebook page and then shared to his personal Facebook page.  The endorsement was titled “A Message from President Lendon Grisham.”  The body of the message stated that Grisham was a member of the Members 1^st slate of candidates for delegate and alternate delegate and that the slate was seeking election to the IBT convention to support the O'Brien-Zuckerman 2021 slate.  A posed photo of Grisham accompanied the endorsement.  In the photo, Grisham stood in front of a floor-standing bookcase, approximately seven feet high by eight feet across, that is a fixture in his union office.  The bookshelves were loaded with Teamster reference material, group photos, and model tractor-trailer rigs. 

Curbeam’s protest made two allegations.  First, it argued that Grisham was required to state in the post that his use of his union title was for identification purposes only and did not constitute a campaign endorsement by the local union.  Second, the protest alleged that the setting for the posed photo that accompanied the post was a union asset that could not be permissibly used for campaign purposes absent reimbursement of the fair market value of the assistance and advance written notice of its availability for that purpose to all other candidates. 

Grisham told our investigator that when he received the protest at about 7 p.m. CST on January 19, 2021, he immediately contacted the local union member who helps him with his Facebook posts.  The two reviewed the Rules together and concluded that the post should have included a disclaimer that Grisham’s use of his local union title was for information purposes only and did not constitute an endorsement by the local union.  Approximately 8 p.m. the same date, the post was removed from both Facebook pages.  By the time the post was removed, it had generated 92 Likes, 1 Comment, and 3 Shares.  The Facebook page holders who had Liked the post and commented on it were visible to the public, and OES downloaded that list at the time the protest was filed.  However, the Shares were private, and investigation did not reveal the identity of the Facebook page holders who had Shared the post before the post was removed. 

Our Advisory on Campaign Contributions, Expenditures, and Disclosures states, at p. 10, that, “[t]o avoid any confusion, board members or local union officers who want to endorse a candidate must indicate on any publication of such an endorsement that their office or position is listed “for identification purposes only.”  Grisham’s post did not do so. 

With respect to the setting for the photo that accompanied the post, Article VII, Section 12(c) prohibits use of union facilities and equipment, among other things, for a campaign purpose unless the union is reimbursed for the fair market value and unless all candidates are provided advance written notice of the availability of the assistance for campaigning.  The purposes for this rule are to level the playing field among candidates and to bar union officials and their allies from using the accoutrements and status of the union to advantage their campaign. 

Counsel for the O'Brien-Zuckerman 2021 slate argued in defense of Grisham’s photo that candidates for the Teamster Power slate committed the same violation; counsel provided examples that he said were taken in union-provided settings.  Case law demonstrates, however, that any use of union resources in campaigning is prohibited no matter how isolated or slight.  Yeakel, P762 (June 5, 1996) (violation where campaign hats were displayed along with unions hats in union office); Hoffa-Hall 2016, 2015 ESD 31 (August 30, 2015) (violation where campaign stickers were posted on union property); Miller, P504 (April 23, 1996) (violation where local made its office available to a campaign as a location to pick up a raffle prize).

Accordingly, we GRANT the protest.

Remedy

When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.”  Article XIII, Section 4.  In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.  “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.”  Hailstone & Martinez, 10 EAM 7 (September 14, 2010).

            Grisham mitigated the violation by removing the post from his campaign and personal Facebook pages the day after it was posted there.  However, in the period it was posted, the post generated 92 Likes and 1 Comment.

            To remedy the violations we find here, we direct Grisham to cease and desist from further violations of the Rules.  In addition, we direct Grisham, within three days of this decision, to sign and post the notice attached to this decision on his campaign and personal Facebook pages and not remove them from either page until February 25, 2021.  In addition, we direct Grisham, within three days of this decision, to transmit the signed notice by Facebook Messenger to each person who Liked or Commented on the original post.  At the time we issued this decision, we transmitted to Grisham and counsel for the O'Brien-Zuckerman 2021 slate a list of the persons who are to receive the notice.  Within three days after completing this remedy, Grisham shall provide his declaration of compliance to OES.

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.  Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i).  All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor.  Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Barbara Jones

Election Appeals Master

IBTappealsmaster@bracewell.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, all within the time prescribed above.  Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision.  A copy of the protest must accompany the request for hearing.

                                                                  Richard W. Mark

                                                                  Election Supervisor

cc:        Barbara Jones

            2021 ESD 46

DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

braymond@teamster.org

Edward Gleason

egleason@gleasonlawdc.com

Patrick Szymanski

szymanskip@me.com

Will Bloom

wbloom@dsgchicago.com

Tom Geoghegan

tgeoghegan@dsgchicago.com

Rob Colone

rmcolone@hotmail.com

Barbara Harvey

blmharvey@sbcglobal.net

Kevin Moore

Mooregp2021@gmail.com

F.C. “Chris” Silvera

fitzverity@aol.com

Fred Zuckerman

fredzuckerman@aol.com

Ken Paff

Teamsters for a Democratic Union

ken@tdu.org

James Curbeam

teamsterspowercurb@gmail.com

Lendon Grisham

lendongrisham@tlu480.com

Dolores Hall

dhall@ibtvote.org

Jeffrey Ellison

EllisonEsq@gmail.com