Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: O’BRIEN-ZUCKERMAN 2021,   )           Protest Decision 2021 ESD 153

                                                                        )           Issued: October 7, 2021

Protestor.                                           )           OES Case No. P-179-100221-FW

____________________________________)

O'Brien-Zuckerman 2021, 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 the Northeast Los Angeles Democratic Club violated the Rules by endorsing Ron Herrera for IBT General Secretary-Treasurer and organizing a GOTV phone and text bank for him; the protest further alleged that Herrera and the Teamster Power slate violated the Rules by accepting the endorsement and phone bank.

Election Supervisor representative Jeffrey Ellison investigated this protest.

Findings of Fact and Analysis

            In a post to its Facebook page made October 1, 2021, the Northeast Los Angeles Democratic Club (NELADems) called on “Fellow Dems” to “support our Brother Ron Herrera who is running for IBT General Secretary Treasurer under the Teamster Power Slate!”  The post sought volunteers for phone and text banks “to help with outreach and Get Out The Vote efforts for the campaign.”  It provided a link to permit volunteers to sign up for 2½- to 3-hour stints beginning October 7, 2021 and continuing every few days into early November.[1] 

            O'Brien-Zuckerman 2021 protested, asserting that NELADems could not permissibly endorse Herrera or facilitate a phone and text banking operation and recruit volunteers for it.

            Before detailing the results of our investigation, we lay the framework against which we assess this protest.  Under the Rules, subject to an important exception we discuss below, campaign contributions may be made only by IBT members; they may not be made by nonmembers.  Article XI, Section 1(b)(4) declares that “[n]o candidate, slate, or independent committee, nor anyone acting on their behalf, may solicit or accept financial support, or other direct or indirect support of any kind from any nonmember.”  Section (1)(b)(1) of the same article reinforces that “[o]nly contributions which are properly solicited, made, accepted, and reported under these Rules may be expended or used by candidates, slates, or independent committees for the 2020-2021 International Union Delegate and Officer Election.”  A “member” under the Rules is a “person who has fulfilled the requirements of membership” in the IBT and has not withdrawn or been suspended or expelled from membership.  Definition 33.  A “nonmember” is a person who is not a member; the definition of nonmember also includes a former member and a retiree.  For the purpose of campaign contributions, “member” as the Rules define the term includes the “spouse, parents, children, or siblings” of an IBT member,” unless that person is otherwise ineligible to make a campaign contribution.  Article XI, Section 1(b)(4).

            Other provisions of Article XI reinforce, albeit indirectly, that campaign contributions may be made only by members. Thus, Section 1(b)(2) renders employers – excluded from IBT membership[2] – ineligible to make campaign contributions of “anything of value, where the purpose, object, or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate.”  This subrule stresses that the prohibitions on employer contributions “are not limited to employers that have contracts with the Union; they extend to every employer, regardless of the nature of the business and include, but are not limited to, any political action organization that employs any staff; any nonprofit organization, such as a church or civic group that employs any staff; and any law firm or professional organization that employs any staff.”  The rule notes explicitly 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.”  See also, Definition 18. 

            Section 1(b)(3) of Article XI prohibits any labor organization, whether or not an employer, whether or not Teamster-related, from contributing anything of value to a candidate.  The common thread of Sections 1(b)(2) and (3) prohibiting employer and union campaign contributions is the Rules provision declaring that such contributions may be made only by members.

            The Rules make one exception to the provision limiting campaign contributions to members only.  Thus, Section 1(b)(10) permits “an individual, who is not an employer,” to donate services to a candidate, provided the services “are rendered on the individual’s personal free time without compensation in any form by an employer or labor organization and without accompanying contributions of supplies or of services of others who are compensated by an employer or labor organization for such services.”  This is the only provision permitting a non-member to make a campaign contribution to a candidate.[3]

            The Rules permit members to band together in the form of a caucus, a group of union members, or an independent committee to make campaign contributions, provided that such a group “is itself financed exclusively from contributions which are permitted and properly reported” under the Rules.  Article XI, Section 1(b)(9).  However, a group comprised in part of nonmembers enjoys no such right.

The protest here alleged that NELADems, as an entity, was prohibited from making campaign contributions under the Rules, whether by endorsing candidate Herrera or by recruiting volunteers to perform phone and text banking.  We examined whether NELADems is an employer prohibited from making contributions.  We also examined whether it is a caucus, group of union members, or independent committee permitted to make them.

NELADems is a membership organization, largely but not exclusively funded by periodic dues of its members.  It is registered with the Federal Elections Commission as a political action committee.  Recent reports show that, in addition to dues income, it has received contributions from other political action committees, from the campaign of at least one candidate for public office, and from a law firm.[4] 

The current president of NELADems is Michael Contreras.  He told our investigator that NELADems has no employees and does not pay any person wages or a salary, withhold payroll taxes from such compensation, or remit such tax withholdings to any taxing authority.  There is no contrary evidence.  Accordingly, we conclude that NELADems is not an employer.

Contreras is a member of Teamsters Local Union 396, the local union Herrera serves as principal officer.  Contreras is on staff with the local union, working as an organizer on the Teamsters Port campaign.  He previously was a member of and on staff performing a similar role at neighboring Local Union 848, transferring to Local Union 396 effective July 2021. 

Although Contreras is a Teamster member, most of those persons paying dues to NELADems are not.  Accordingly, NELADems does not qualify as a caucus, group of union members, or independent committee permitted to make campaign contributions under the Rules.  Because an endorsement constitutes a campaign contribution under the Rules, Definition 5(f), NELADems violated the Rules by endorsing Herrera for union office because such an endorsement by the club was not permissible.  Herrera and Teamster Power violated the Rules by failing to refuse the endorsement.  Article XI, Section 1(b)(13).

            NELADems, as an organization that is not permitted to make campaign contributions, cannot facilitate the phone and text bank operation or recruit volunteers to it. 

            Accordingly, we GRANT the protest.

            Our ruling, however, is addressed specifically to action taken by or through the NELADems organization.  Individuals – whether or not affiliated with NELADems – who are not themselves employers may volunteer to staff phone or text banks on their personal time, provided they do not use supplies or services of others who are compensated by an employer or labor organization. 

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 NELADems to cease and desist from making campaign contributions to Herrera and the Teamster Power slate, whether by endorsement of Herrera’s candidacy or by facilitating a phone or text bank operation and recruiting volunteers to it.

            We order Herrera and the Teamster Power slate to refuse NELADems’ endorsement, to reject the offer of assistance with phone or text banking from that organization, and to refuse to cooperate with it in such endeavor or in any other way.

            To undo the NELADems’ impermissible endorsement of Herrera and the Teamster Power slate, we order Contreras to post to NELADems’ Facebook page the notice attached to the decision.  Such posting must be made no later than Saturday, October 9, 2021, and must remain posted on the Facebook page through Monday, October 18, 2021.  No later than Monday, October 11, 2021, Contreras must submit his declaration to OES that he complied with the posting requirement and that NELADems is complying with the cease-and-desist order; the declaration must include a screenshot of the Facebook posting.

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 153

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

Northeast Los Angeles Democratic Club

neladems@gmail.com

Michael Miller

Miller.michael.j@verizon.net

Deborah Schaaf

dschaaf@ibtvote.org

Jeffrey Ellison

EllisonEsq@gmail.com