Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: TEAMSTER POWER,                   )           Protest Decision 2021 ESD 148

                                                                        )           Issued: September 28, 2021

Protestor.                                           )           OES Case No. P-168-083121-FW

____________________________________)

Teamster Power, a slate of candidates for International office, 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 Marty Frates, principal officer of Local Union 70, conveyed an impermissible endorsement by the local union of Sean O’Brien and the O'Brien-Zuckerman 2021 slate.

Election Supervisor representative Deborah Schaaf investigated this protest.

Findings of Fact and Analysis

            The protest centered on the production and distribution of a letter by Frates concerning financial health and governance of Teamster-related pension plans.  Under a red banner headline that read “beware of lies about our pension! protect our future,” Frates’ letter attacked Teamster and employer trustees of such plans who “refused to make the necessary cuts for the pension plans to survive.”  Criticizing the recently passed Butch Lewis Act as “a temporary fix,” Frates championed those trustees who made the necessary pension plan changes that would insure fund viability without government assistance.  He then wrote the following: “That’s why Local 70 supports Sean O’Brien and his slate for General President.”  The letter elaborated on the endorsement and was signed “Marty Frates, Secretary-Treasurer, Teamsters Local 70.”

            Article VII, Section 12(c) prohibits use of union funds and facilities, among other things, to assist in campaigning.  Article XI, Section 1(b)(3) provides that “[n]o labor organization, including but not limited to the International Union, Local Unions and all other subordinate Union bodies, whether or not an employer, may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate.  No candidate may accept or use any such contribution. These prohibitions extend beyond strictly monetary contributions made by a labor organization and include contributions and use of the organization’s stationery, equipment, facilities, and personnel.” 

The Rules are clear that a union may not permissibly endorse a candidate for delegate or International office.  Custer, P1098 (November 18, 1991); see also, Prisco, 2010 ESD 6 (July 8, 2010); Rivers, 2011 ESD 137 (February 24, 2011); Smith, 2006 ESD 395 (November 12, 2006), dismissed on other grounds, 2006 EAM 78 (December 7, 2006); Leedham, 2006 ESD 380 (October 26, 2006); Ostrach, 2006 ESD 366 (September 26, 2006); Leedham, 2006 ESD 340 (August 22, 2006); Hoffa, P954 (September 23, 1996); Smith, P917 (October 10, 1991); Pope, 2000 EAD 3 (August 1, 2000).

Our Advisory on Campaign Contributions, Expenditures, and Disclosure (July 27, 2020) states explicitly that “[e]ntities such as a local union, a joint council, or a labor organization’s executive board cannot endorse a candidate.  …  Such an endorsement by a labor organization is an improper campaign contribution.”

Likewise, a member may not permissibly assert or declare that a union, as an entity, supports or endorses a candidate because giving the false impression of union endorsement violates Article XI, Section 1(b)(3) as an impermissible union contribution.  Teamster Power,  2020 ESD 5 (July 3, 2020) (posting to Facebook page that “Local 623 stands with [candidate]” falsely conveyed that the local union endorsed a candidate, when it was prohibited from doing so); Rivers, 2011 ESD 137 (February 24, 2011) (campaign mailing stating that formal sub-entity of local union “backs” a candidate constitutes a prohibited statement of endorsement, even though the sub-entity had not made any actual endorsement); see also, Strohl, 2011 ESD 143 (March 2, 2011) (campaign mailing that did not identify sender and listed “International Brotherhood of Teamsters” on return address with no disclaimer constituted an impermissible endorsement); O’Brien-Zuckerman 2021, 2020 ESD 1 (June 23, 2020) (a steward’s group text message to rank-and-file members stating that “Local 122 is backing” a slate violated the Rules as an improper union endorsement). 

Here, Frates violated the Rules by publishing in the letter that “Local 70 supports Sean O’Brien.”  He further violated the Rules by using his title and local union without the disclaimer required by our Advisory on Campaign Contributions.[1]  Frates does not contest these Rules violations.

Frates focuses his defense against the protest by asserting that, while the words he used violated the Rules, he did not compound the violation by using union resources to create the letter.  He further argues that any remedy for the violations found should be narrowly tailored because he distributed the letter only to a limited audience. 

With respect to production of the letter, Frates denied flatly that he used union resources to create it.  He stated that he crafted the letter at his home, and he obtained assistance there with respect to formatting from another person.  Frates initially demurred when asked to identify the person who assisted with the production.  When our investigator insisted that Frates divulge the name of the person who assisted so that the investigation could determine whether that person’s assistance constituted impermissible use of union resources, Frates objected but then replied that he would need 3 days to “pull together” the name of the person who assisted him.  He did not provide our investigator with the name by the day promised, the day after that, or at any time.  Accordingly, we conclude that Frates has failed in his obligation under Article XIII, Section 2(g) to cooperate with the Election Supervisor.[2]  We further conclude from the sum of evidence assembled in this investigation that Frates knows the identity of the person he admits assisted him with production of the letter and that his failure to identify that person, either immediately upon being asked to do so or after the period he requested, was because to do so would prove the allegation that union resources were used to prepare the letter. 

With respect to distribution of the letter, Frates stated that on August 26, 2021, he texted a pdf or jpeg of it, complete with signature, to Jeremy Brake, a member of Local Union 439, “for review.”  Neither he nor Brake could produce a screenshot of the text message to our investigator that would reveal the instructions that accompanied the letter, as each claimed he had deleted the text.  Brake’s actions, however, did not corroborate Frates’ contention that Frates sent the letter “for review” only.  Instead, Brake behaved as one believing the letter was in final form and to be released.  He immediately posted the letter to his personal Facebook page, where he has more than 900 Facebook friends.  He also posted it to his Instagram account, where he has an undetermined number of followers.  Brake told our investigator that he had no understanding from his interaction with Frates that the letter was “for review” and not for publication.

Separately, Ricardo Costa, a member of Local Union 315, saw the letter on August 25, 2021, at 3:20 p.m.  Costa told our investigator that he posted it to a private Facebook group simply named “Teamsters,” which has approximately 9,900 members.  Although Costa was a Facebook friend of Blake, he denied that he saw the letter on Brake’s Facebook page; instead, he told our investigator that he received the letter by text message (hence his ability to specify the precise date and time he received it), but he could not reconstruct from whom he received the letter.  The precise timing of Costa’s posting of the letter to the “Teamsters” private Facebook group is not known.  However, it was seen by a Teamster member there on August 29, 2021, who took a screenshot of the letter and forwarded it to the protestor.  When the screenshot was taken, the post containing Frates’ letter had been posted for “8h” – 8 hours – according to the Facebook page, suggesting it was posted there either on August 28 or 29, 2021.  This protest followed on August 31, 2021.

Frates initially told our investigator that he circulated the “draft” letter to a “circle” of recipients for their reactions.  He subsequently denied to our investigator that he transmitted the letter to anyone other than Brake.  He stated he intended to send it, at minimum, to all local unions within his joint council, but receipt of the protest in this matter dissuaded him from doing so.  For several reasons, we do not credit Frates’ claim that he sent the letter only to Brake.  First, except when admitting facts that were undeniable (e.g., his admission that he wrote and signed the letter containing the impermissible endorsement, facts that are established by the letter itself), Frates demonstrated a general lack of credibility in this case.  Second, his later claim that Brake was the only recipient of the letter was directly contradicted by his earlier admission to our investigator that he distributed it to multiple recipients.  Third, the date Frates and Brake told our investigator that Frates texted the letter to Brake, August 26, 2021, was one day later than the date Costa said he received the letter from an unknown texter.  These facts persuade us that Frates distributed the letter to more recipients than Brake alone.

More important than how widely Frates personally distributed the letter is the fact, central to this case, that the letter received broad distribution.  Frates cannot defend his conduct here by stating that he, personally, did not distribute the impermissible endorsement broadly, where facts show that he placed it into the distribution stream such that it received wide exposure (more than 900 Facebook friends and an undetermined number of Instagram followers of Brake, and more than 9,000 members of the “Teamsters” private Facebook group).

At our investigator’s request, Brake removed Frates’ letter from his Facebook and Instagram pages on September 1, 2021, and Costa removed it from the “Teamsters” private group on September 8, 2021.  The removal was confirmed by the person who reported the letter to the protestor.

In Teamsters United, 2015 ESD 46 (October 20, 2015), the Election Supervisor found that Frates violated the Rules by writing and sending a letter regarding the financial conditions of pension plans—the same basic issue discussed in the letter in the current protest.  The letter in the 2015 case was printed on local union letterhead.  In addition to discussing the pension issue in detail, that letter announced Frates’ candidacy for local union delegate so that he could bring his concerns about pension fund viability to the IBT convention.  Frates sent the letter to all IBT joint councils and local unions.   We held that the letter “was a union campaign contribution to Frates because it had the purpose, object or foreseeable effect of influencing positively the election of Frates as a delegate” and was prepared and distributed using local union funds.  Frates defended against the protest, citing his “right and responsibility” as a local union leader to inform the membership on matters of concern to the membership, citing Martin, 1995 EAM 18 (October 2, 1995).  We rejected that defense because a local union leader may discharge his/her responsibility “in reporting on matters of vital interest, as long as the reportage is politically neutral.”  Hicks, 2006 EAM 22 (March 15, 2006) (emphasis supplied).  Election Appeals Master Roberts affirmed our decision.  2015 EAM 4 (November 30, 2015).

The substance of the letter at issue here is the same as that considered in Teamsters United and constitutes a Rules violation for similar reasons.  Both letters use the imprimatur of Local Union 70 – the 2015 version by impermissibly using union letterhead, the current version by impermissibly asserting a local union endorsement – to advance Frates’ political point.  The distribution of the letter here was less systematic than that employed with respect to the 2015 letter but more effective.  There, Frates mailed the letter broadly.  Here, he distributed it to at least 2 recipients, where it then received wide exposure on social media, perhaps even exceeding that gained by the 2015 letter. 

For the foregoing reasons, we GRANT the protest.  We find that Frates violated the Rules by asserting that Local Union 70 endorses O’Brien, that he used union resources in doing so, and that he is a repeat violator in this regard.  Finally, we find that Frates failed to cooperate with the Election Supervisor’s investigation into 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).

Frates’ actions in this matter were those of an experienced union leader who knew the requirements of the Rules not only because of that experience but because he previously committed a Rules violation of the same character as that at issue here.  In Teamsters United, we ordered Frates to cease and desist from such conduct and to reimburse Local Union 70 from personal funds the monetary cost of distributing the letter that violated the Rules as well as the cost of distributing the remedial notice to the same recipients.  This remedy did not deter Frates’ conduct, requiring a more severe remedy in this case, which we order as follows:

• We order Frates to cease and desist from improperly using the name of Local Union 70 and his title in that organization and other things of value to support or oppose any candidate or slate of candidates for International office.  If Frates, in his personal capacity, chooses to endorse a candidate or slate of candidates for International office and to include his Local Union 70 affiliation in the endorsement, the statement of affiliation shall be followed immediately by the statement that the “office or position is listed for identification purposes only,” and such statement shall be in the same font size and style as the affiliation statement.

• We further order Frates to cooperate with the Office of the Election Supervisor by providing truthful and candid responses when investigative inquiries are made. 

• We further order Frates to sign the notice attached to this decision and post it, or cause it to be posted, on all union bulletin boards under the jurisdiction of Local Union 70.  The posting of this signed notice must be completed no later than Friday, October 1, 2021, and must remain posted through and including November 15, 2021.  The purpose of the posting is to notify members of the requirements of the Rules, that Frates has violated them, and that Local Union 70 does not endorse and cannot permissibly endorse any candidate in the International officers election.

• We further order Brake to post the notice signed by Frates on his Facebook page and Instagram accounts.  Brake must comply with this posting requirement no later than Friday, October 1, 2021, and provide proof of those postings to the Office of the Election Supervisor by the same date.  We order Frates to facilitate this posting by providing the signed notice to Brake in sufficient time to permit him to comply with this order. 

• We further order the site administrators of the “Teamsters” private Facebook page to post the notice signed by Frates to that private group, under the heading “A notice ordered posted by the Election Supervisor for the International Brotherhood of Teamsters.”  The site administrators must comply with this posting requirement no later than Friday, October 1, 2021, and provide proof of those postings to the Office of the Election Supervisor by the same date.  We order Frates to facilitate this posting by providing the signed notice to the site administrators in sufficient time to permit them to comply with this order.

• The order in Teamsters United requiring Frates to pay more than $1,000 from personal funds to reimburse costs the local union incurred that were associated with his Rules violation there.  Finding that the monetary order in Teamsters United did not have the intended effect of deterring further Rules violations of the same character, we order Frates to remit the sum of $2,500 from personal funds to the Office of the Election Supervisor no later than Friday, October 1, 2021.  This aspect of the order is strictly remedial in nature and is intended to encourage compliance with the Rules, including the obligation to cooperate with the Election Supervisor by being truthful and providing evidence to the Election Supervisor, and to reimburse the Office of the Election Supervisor, and by extension the IBT, for costs incurred in investigating and remedying this protest.  Frates must supply a declaration to OES with the remittance stating that the remittance is paid solely from his personal funds, that no other person, union entity, IBT member, candidate, slate, campaign, or employer has transferred or contributed any funds to him for the purpose of paying all or part of the remittance, and that he will refuse any such offer, transfer, or contribution. 

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 148

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

Fred Zuckerman

fredzuckerman@aol.com

Ken Paff

Teamsters for a Democratic Union

ken@tdu.org

Scott Jenkins

scott@oz2021.com

Marty Frates

Teamsters Local Union 70

mfrates@teamsterslocal70.org

Jeremy Brake

Brake7878@aim.com

Deborah Schaaf

dschaaf@ibtvote.org

Jeffrey Ellison

EllisonEsq@gmail.com