Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: SPENCER HOGUE,                       )           Protest Decision 2021 ESD 61

                                                                        )           Issued: February 23, 2021

Protestor.                                           )           OES Case No. P-074-020921-GP

____________________________________)

Spencer Hogue, member and principal officer of Local Union 222, 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 the 222 for OZ slate solicited and accepted an employer contribution to its campaign.

Election Supervisor representative Jim Devine investigated this protest.

Findings of Fact

Local Union 222 will elect five delegates and four alternate delegates to the IBT convention.  Two slates are contesting the election.  The Teamsters United for Power slate is comprised of protestor Hogue, other officers and business agents of the local union, and rank-and-file members.  The 222 for OZ slate consists of rank-and-file members. 

            To raise campaign funds, the 222 for OZ slate has sold burritos at $5 each in employer parking lots, catering to members who work there.  Campaign fundraising is regulated by Article XI of the Rules, which specifies that only union members may make campaign contributions (including in the form of purchase of food and beverage sold to generate campaign funds).  No employer may contribute to a candidate’s campaign, and no candidate may accept an employer contribution.  Article XI, Section 1(b)(2).

            On February 10, 2021, the 222 for OZ slate campaigned at the YRC facility in West Valley City, UT and sold burritos there.  The burrito sale was advertised the day before the event on an employer-owned erasable board, a “whiteboard,” positioned in the employee breakroom inside the employer’s facility.  When Hogue learned of use of the whiteboard, he filed this protest, alleging that its use constituted an impermissible employer contribution to the 222 for OZ slate.

            Investigation showed that the whiteboard is the property of YRC.  It is portable, with the whiteboard writing surface affixed to a post that is mounted on a wheeled base.  On February 9, the day before the sale, the board was positioned in the employee breakroom.  Hand-lettered on it was the following message:

Breakfast Burrito &

Bottle of Water $5.00

all day Wednesday.

February 10^th 5:00 AM to 6:00 PM

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

All proceeds go to 222

for OZ campaign.

            The board is maintained by a YRC clerical employee whose job is not within the Teamsters bargaining unit.  The clerical reports to the facility manager.  The clerical told our investigator that the whiteboard is used to advertise employee community events.  Use of the board is controlled by the employer.  The clerical is assigned to manage the board and is the gatekeeper for its use, under direction of the terminal manager.  No written policy or guidelines govern the board’s use.  According to the clerical, the board has been used to advertise a so-called “good day” lunch, such as a barbecue, through which the employer thanks employees for a job well done.  The board is also used to give notice of holiday lunches and potlucks at the Thanksgiving and Christmas holidays.  To the recollection of the clerical, the board has been used twice for a fundraiser, both concerning an employee who needed assistance.  On one occasion, the board advertised a fundraiser for an employee who was seriously ill; the other time it promoted a fundraiser for an employee whose family had experienced a tragedy. 

            According to the clerical, the board is not used for charitable drives such as the United Way, which are run through the employer’s HR department.  However, it is used annually for the Festival of Trees, an event that supports the Primary Children’s Hospital; in that instance, employees use the board to sign up to deliver trees for the charity.  The clerical told our investigator that the whiteboard had never been used for a political fundraiser.

            When the board is not in use, which the clerical explained is most of the time, it is stored out of sight.  It is not available for employees to post messages of their own choosing.

            The clerical told our investigator that Mel Yetter,[1] a YRC employee, texted the clerical on Sunday, February 7, and asked that notice of the burrito sales be posted on the whiteboard on February 8 and 9.  The clerical asked that Yetter provide her the exact wording to be displayed on the board, and he did so.  Because of an oversight, the clerical did not post the notice on the whiteboard on February 8.  On February 9, Austin Hill, another YRC employee who supports the 222 for OZ slate, asked the clerical again, and the clerical retrieved the board from storage, wrote the notice on it, and placed the board in the employee breakroom.  The clerical told our investigator that she did not question the content of the message she wrote on the board.  She did not know what 222 for OZ was, and she had no knowledge or experience with the Election Rules.

            The whiteboard remained in the breakroom with the fundraising notice on it until approximately 2 p.m. on February 9.  At that point, Jeff Kendall, local union business agent, saw it when he was in the facility on union business.  He spoke with DeShawn Perkins, terminal manager, and told him that the sign was “a campaign issue” and should not be there.  Perkins agreed, and the sign was removed.  All told, the sign was in place for most of the day on February 9, the day before the burrito sales at YRC. 

            Dale Varney, campaign manager for the 222 for OZ slate, denied that he asked that the burrito sales be advertised on the whiteboard or had advance knowledge that the request had been made.  He told our investigator that he learned the burrito sales had been advertised on the YRC whiteboard at about 2:45 p.m. on February 9, when protestor Hogue contacted him.  Hogue filed the protest at 8:05 p.m. local time the same day, which OES docketed and acknowledged on the morning of February 10.  Email notification of the protest was sent to Varney, among others, at 6:30 a.m. local time that day.  The 222 for OZ slate proceeded with the sales, grossing $275 from YRC employees, according to a spreadsheet Varney supplied to our investigator.

Analysis

            The Rules prohibit an employer contribution of “anything of value” to a candidate or campaign, “where the purpose, object, or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate.”  Article XI, Section 1(b)(2).  “No candidate may accept or use any such contribution.”  Id.  Further, the rule makes clear that “[t]hese prohibitions extend beyond strictly monetary contributions made by an employer and include contributions or use of employer stationery, equipment, facilities, and personnel.”  Id.  Section 1(b)(13) of the same article declares that “[c]andidates are strictly liable to insure that each contribution received is permitted under these Rules.”

            Employers are to play no role in the election of delegates, alternate delegates, or International officers of the IBT.  For this reason, candidates have the affirmative duty to bar employer contributions and are strictly liable for them even where the candidates themselves did not solicit them and had no knowledge of the solicitation until after the contribution was made.

            Here, there is no question the whiteboard was an employer asset, that its use was solicited by supporters of the 222 for OZ slate for a campaign purpose, and that its purpose was to advertise a fundraiser that would benefit the slate.  Further, there is no question that the whiteboard was exclusively reserved for employer-approved messages and was not available for personal or campaign messages.  That the message was solicited by two acknowledged supporters of the 222 for OZ slate demonstrates the determined effort to obtain the employer’s assistance.  That the 222 for OZ slate continued with the fundraiser the employer’s whiteboard advertised when its members were on notice that the use of the board was protested as a prohibited contribution reinforces application of strict liability for the violation.

The 222 for OZ slate could have avoided the finding of a Rules violation here by disavowing the whiteboard advertisement and not proceeding with the burrito sale that the advertisement had promoted.  Its failure to do so demonstrates its intention to accept the contribution. [2]

For these reasons, 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).

            We direct the 222 for OZ slate to cease and desist from soliciting or accepting employer contributions to its campaign.  We further direct the slate to disgorge the proceeds of the fundraiser it held in the employer parking lot at YRC on February 10, 2021 by refunding to the persons who made the contributions received that day the full dollar amount of those contributions.  Such refunds must be completed by Friday, February 25, 2021, and a declaration of compliance, attaching an itemized list of the refunds identifying each recipient and the form of disbursement (e.g., check, PayPal, Venmo) must be submitted to OES by that same date.  This remedy serves the purpose of undoing the monetary benefit the 222 for OZ slate received that is connected with the impermissible employer contribution.

We direct Local Union 222 to post on the union’s worksite bulletin board at YRC-West Valley City the notice attached to this decision.  The notice must be posted no later than Friday, February 25, 2021 and shall remain posted through the date ballots are to be counted in the delegates and alternate delegates election, which is March 16, 2021.  The notice posting is strictly remedial in nature.  Its purpose is to inform the members at YRC that the Rules prohibit employer contributions and that the 222 for OZ slate violated the Rules by soliciting and receiving YRC’s assistance.

Finally, we order the 222 for OZ slate to pay the OES a fine of $100 for this violation.  The fine must be paid no later than Friday, February 25, 2021.  This fine is strictly remedial in nature and is intended to reflect the value of the employer promotion, emphasize the serious nature of the violation found here, and deter further violations of the Rules.

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 61

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

Spencer Hogue

jjhogue@gmail.com

Dale Varney

Dvarney3860@gmail.com

Taylor Malungahu

tonganfob@gmail.com

Teamsters Local Union 222

Spencer Hogue, Secretary-Treasurer

s.hogue@teamsterslocal222.org

Jim Devine

jdevine@ibtvote.org

Jeffrey Ellison

EllisonEsq@gmail.com