Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: CONOR COBEY,                           )           Protest Decision 2021 ESD 78

                                                                       )           Issued: March 12, 2021

Protestor.                                           )           OES Case No. P-093-030121-FW

____________________________________)

Conor Cobey, member of Local Union 439, 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 Local Union 439 and a slate competing in the local union’s delegates and alternate delegates election violated the Rules by displaying a partisan banner in the local union hall during a training session for shop stewards.

Election Supervisor representative Deborah Schaaf investigated this protest.

Findings of Fact and Analysis

            Local Union 439 will elect 7 delegates and 2 alternate delegates to the IBT convention.  At its nominations meeting held February 17, 2021 by Zoom conference, two full slates were nominated.  Protestor Cobey is a candidate on the Members Voice slate, which is competing against The Brotherhood slate, comprised in large part of local union officers and business agents.

            The current local union officers won the officers election held in late 2020 and took office in January 2021.  On Saturday, February 27, 2021, 10 days after the nominations meeting, local union leadership conducted a 2-hour in-person stewards training in the auditorium at the local union hall.  Protestor Cobey attended, as did 18 other stewards, 4 officers (including the secretary-treasurer and the president), and 2 business agents.

            The auditorium is a large room with vaulted ceiling.  Recessed into the wall at one end of the room is a stage, elevated approximately 3½ feet above the floor of the main room.  On the stage is a dais approximately 3 feet high and 12 feet long.  Affixed to the dais facing the auditorium on the day of the stewards seminar was a large fabric banner that read “Unite the Brotherhood Slate” in large letters 12 inches or more in height.  Bookending the slogan on the banner were two identical graphics of clasped hands on an emblem that repeated the Unite the Brotherhood Suite name and included the words “integrity,” “respect,” and “honor” on stylized streamers.  The banner measured approximately 3 feet by 10 feet and appeared to be hanging from the dais from 4 grommets embedded in the banner. 

            Seating in the auditorium for those attending the seminar was arranged at some 10 tables, 6 feet in length, set with 2 chairs each, oriented so that the stewards faced the stage where the banner was hanging prominently from the dais.  The closest tables were 15 feet from the stage; the furthest, 30.  The persons conducting the seminar sat at a pair of 6-foot tables, pushed end-to-end, so that the trainers faced the audience and had their backs to the stage.

            Nothing was said or done that day that referred to the banner, the delegates and alternate delegates election, or any person’s candidacy in that election. 

            Kenny Gonzalez, local union president (non-principal officer) and candidate on The Brotherhood slate, told our investigator that the steward seminar was open to all UPS stewards and was to provide basic instruction for preparing grievances.  Gonzalez stated that the new administration needed to understand who the stewards were and what their experience was.  They put the seminar together in a short period of preparation, printing documents, setting up the room, and arranging for donuts and the like.   Gonzalez led the seminar.  Sal Lomeli, local union principal officer, also attended the seminar; he is the lead candidate on The Brotherhood slate.  Gonzalez said that he and the other officers at the training “did not realize” the partisan banner was hanging on the stage behind them.  Immediately after the protest was filed, the banner was removed.

            Reuben Moreno, local union business agent, told our investigator that he helped hang the banner on the stage because it was “crumpled up” and they wanted “to get the wrinkles out of it.”  When our investigator asked why the union hall was used to store the campaign banner, Moreno professed ignorance that such action might violate the Rules.

            A sign-in list provided to our investigator showed the names and signatures of all persons who attended the seminar.  No photos of the seminar that included the banner were published to local union social media or on its website.

            The Rules prohibit use of union resources “to assist in campaigning unless the Union is reimbursed at fair market value for such assistance.”  Article VII, Section 12(c).  This prohibition extends to display of any partisan material in the union hall, whether in the auditorium, another common area, or the office of any officer or business agent.  The only exception to this prohibition is for campaign literature tables established pursuant to Article VII, Section 7(h).  Accordingly, the display and storage of the partisan banner on the stage in the auditorium violated the Rules.

The Rules also prohibit campaigning at union meetings unless all candidates are permitted to campaign there and are notified in advance of the opportunity for campaigning.  Article VII, Section 5(a).  The stewards seminar is a union meeting within the scope of this provision.  The display of the banner there violated the Rules because advance notice was not given to all candidates that campaigning would be permitted at the seminar.

Finally, while the provisions just mentioned focus on what the union may and may not do, the Rules also prohibit candidates and slates from receiving benefits from the union.  Article XI, Section 1(b)(13).  Ignorance by a candidate that union resources were used to promote a candidacy shall not serve as a defense to the violation.  Article XI, Section 1(b)(15).

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 order Local Union 439 to cease and desist from displaying and storing any partisan material at the local union hall, except for flyers authorized for display and distribution on the campaign literature table.  We further order the local union not to permit campaigning at union meetings, including the display of partisan campaign material, unless advance notice is given to all candidates that campaigning will be permitted at the meeting.

            We order Local Union 439 to send the notice attached to this decision to all persons who attended the stewards seminar on February 27, 2021.  The notice must be sent by US Mail and the mailing must be completed no later than March 15, 2021.  The mailing may contain only the notice and nothing else.  In addition, Local Union 439 must post the notice on all worksite bulletin boards under the jurisdiction of the local union.  This posting must be completed no later than March 17, 2021 and must be maintained through April 15, 2021, the date ballots are to be counted in the election.  We order the local union to submit a declaration of compliance with the notice mailing and notice posting orders to the OES no later than March 19, 2021.

            We order The Brotherhood slate to pay to Local Union 439 the sum of $100, which we deem the reasonable rental cost of the local union auditorium for 2 hours.  Such payment shall be made no later than March 15, 2021.  Within two days of making the payment, a representative of the slate must submit a declaration of compliance to the OES.

            The foregoing orders are strictly remedial in nature.  They are intended to inform members of what the Rules require, that the local union and The Brotherhood slate violated them, and to deter further violations.

A remedial order of the Election Supervisor is immediately effective, unless stayed.  Lopez, 96 EAM 73 (February 13, 1996).

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 78

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

Conor Cobey

conorcobey@yahoo.com

Kenny Gonzalez

Kenny@teamsters439.com

Teamsters Local Union 439

Sal Lomeli

sal@teamsters439.com

Deborah Schaaf

dschaaf@ibtvote.org

Jeffrey Ellison

EllisonEsq@gmail.com