Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: MARK DAVISON,                         )           Protest Decision 2021 ESD 171

                                                                      )           Issued: November 3, 2021

Protestor.                                           )           OES Case No. P-083-022521-FW

____________________________________)                       & P-095-030221-FW

Mark Davison, member of Local Union 162 and candidate for IBT vice president – West region, filed 2 pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”).  The protest in Case No. P-083-022521-FW alleged that Peter Núñez violated the Rules by posting partisan campaign material to the Instagram account of Local Union 431.  The protest in Case No. P-095-030221-FW alleged that Núñez violated the Rules by displaying partisan campaign material during a joint labor-management meeting he attended.

Election Supervisor representative Deborah Schaaf investigated these protests.  They were consolidated for decision.

Findings of Fact and Analysis

             Núñez is principal officer of Local Union 431 and a candidate for International trustee on the Teamster Power slate.  Local Union 431 maintains an Instagram account it uses to communicate with members and the public.  On or about February 23, 2021, Núñez posted a message addressing protection for pension funds.  The post urged support for the Butch Lewis Pension Protection Bill and opposition to the GROW bill.  The Instagram post consisted of a graphic and text.  The graphic appears at right.  The text accompanying the graphic read as follows: “The Western Conference of Teamsters Pension Fund is the strongest in North America.  We cannot allow those that would help underfunded plans at the expense of healthy plans to push the ‘Grow Act.’  Support the Butch Lewis Pension Protection Bill and protect our plan from otherz.”  The Butch Lewis bill, pending before Congress at the time the post was made in February, would if adopted have provided funding to sustain qualifying pension plans for coming decades and to restore pension cuts certain funds previously imposed.  The GROW bill, an acronym for Give Retirement Options to Workers, would if adopted not have assisted troubled funds but would have allowed certain options for employers participating in well-funded plans.  Beginning in 2018 when the GROW bill was first introduced, many Teamster leaders came out in opposition, with some warning that the bill if enacted would permit transfer of assets from healthy funds to troubled ones.  Other Teamster leaders, while arguing against the GROW bill, asserted that nothing in the bill as proposed would permit transfer of assets.  The American Recovery Act, enacted in early March 2021, adopted the key elements of the Butch Lewis proposal in lieu of the key elements of the GROW bill. 

The protest, filed February 25, 2021, alleged that that Núñez’s use of “OtherZ” was a reference to “OZ,” the shortened means of referring to O'Brien-Zuckerman 2021 slate, converting the Instagram post to partisan material that violated the Rules.  Núñez denied violating the Rules but offered to remove the post – and did so – on Monday, March 1, 2021, the first business day after being served with the protest, and 6 days after the post was first made. 

The second protest arose from joint labor-management grievance panel hearings that Núñez attended during the week of March 1, 2021.  The panels were conducted by Zoom on at least 3 days that week, and Núñez participated from his office at Local Union 431.  Hanging on the concrete-block wall behind Núñez were 2 framed items.  The protest asserted that one of the framed items, shown at right, sought to convey – and did – the message “OZ sucks,” a partisan campaign message.  According to the protest, the message was created by the black frame and white matting that surrounded a framed photo, the addition of a large block Z, and a sheet bearing the word “sucks” held against the wall by weight of the frame.  The protest asserted that this message violated the Rules because it occurred during a joint labor-management conference. 

Núñez claimed innocence first by stating he did not understand the protest’s contention.  Núñez next denied the allegation and asserted that the image attached to the protest was manipulated.  Through his office manager, Núñez presented a screenshot of the Zoom screen that was a mirror image in which all images that appeared in the video shot – but not the Zoom-supplied label that identified Núñez – were reversed.  In the mirror image, words were difficult to decipher.  Núñez through his assistant asserted that the protestor reversed the Zoom shot when filing the protest so they could “see what they wanted to see.”  Núñez next explained the combination of factors that he believed led to the impression the protestor had reached that the image conveyed a partisan message.  He stated that the framed photo was of a black-and-white image of Hillary Clinton speaking at a Teamster event.  It was framed in black-lacquered wood with white matte to complement the photo image.  The block Z, Núñez explained, was in reality a block N, an initial for “Núñez,” that rested on the frame edge and, because of its precarious perch, often fell to the floor.  In the haste of replacing the N on the frame’s edge, Núñez stated that he or his office manager sometimes placed it sideways in error, with the effect that it inadvertently appeared as a block Z.  The sheet of paper beneath the frame bearing the word “sucks,” according to Núñez, was part of a longer phrase that read “being non-union sucks,” which Núñez asserted was a test of fonts to be used on signage for an organizing campaign.  He said he liked the phrase and kept it on his wall, although he had not had the image framed and mounted to the wall.  Núñez denied that the combination of the frame and matte, the block N rotated to become a block Z, and the “sucks” font test conveyed – or was intended to convey – a partisan message against the O'Brien-Zuckerman 2021 slate.  We note that by the final day of the joint labor-management conference, the block Z had been reoriented so that it appeared as a block N on the Zoom feed.

We review the Instagram post under Article VII, Section 8, which prohibits the use of union publications, or communications financed, sponsored, or used by a union, to support or attack a candidate.  We find the Instagram account was an official union account and was used to convey communications from the union.  As principal officer of Local Union 431, Núñez had and has the “right and responsibility” to inform the membership on matters of concern to the membership.  Martin, 1995 EAM 18 (October 2, 1995).  Specifically, Núñez had the right here to convey to the membership the reasons to support the Butch Lewis pension bill and oppose the GROW one.  However, in exercising this right and responsibility, the reporting must be politically neutral.  Hicks, 2006 EAM 22 (March 15, 2006).  Núñez contended that his Instagram post met this standard and was politically neutral.  He denied that he sought to plant a “subliminal” message through his use of the upper-case Z in place of the lower-case s at the end of “others.”  He told our investigator that he was trying to appeal to more members by “doing something hip.”  We note that pluralizing with a z instead of an s is informal and slangy, an affectation that came into vogue in the first decade of the 2000s.  It then passed out of usage and could not now reasonably be considered hip, modern, trendy, cool, smart, or sophisticated.  Contrary to Núñez’s contention, we find that he pluralized “others” with an upper-case Z precisely for the reason the protestor advanced, to convert a non-partisan message about pensions to a partisan one by suggesting that the O'Brien-Zuckerman 2021 slate sought to undercut support for pensions.  Núñez’s action therefore violated the Rules.

With respect to the signage that appeared behind Núñez on the Zoom feed, a union officer is permitted by the Rules to wear a partisan message on his/her person during union-paid time, such as on clothing, pin, sticker, or hat, even when meeting with members.  Fluker, P672 (April 10, 1996) (no violation where union representative wore partisan button at bargaining unit meeting); Taylor, 2011 ESD 131 (February 22, 2011) (no violation for trustee appointed to administer trusteeship of local union to wear partisan shirt in union hall while carrying out his duties, including when meeting with members).  However, the Rules prohibit display of such a message on union property, including the private office of the principal officer of a local union.  Yeakel, P762 (June 5, 1996) (barring display of campaign hats along with unions hats in union office); Hoffa-Hall 2016, 2015 ESD 31 (August 30, 2015) (posting of campaign stickers on union property).

In addition, the Rules prohibit union officers, business agents and employees from wearing campaign emblems when meeting with an employer of IBT members for collective bargaining or grievance resolution, when participating either as an advocate, witness or panel member in grievance hearings, when appearing on behalf of the union before legislative, administrative or judicial tribunals, when making public appearances on behalf of the union, or when engaged in similar type activities where the wearing of a campaign emblem might inappropriately suggest that the union with which the officer, business agent or employee is affiliated is as an entity supporting or opposing any particular candidate or group of candidates.  Green, P320 (February 7, 1996); Bennett, 2006 ESD 80 (February 14, 2006); Zuckerman, 2011 ESD 313 (August 28, 2011); and Zuckerman, 2015 ESD 1 (June 16, 2015). See also, e.g., Sullivan, 2011 ESD 268 (May 28, 2011) (wearing delegate election campaign button into labor-management meeting violates Rules); Bennett, 2006 ESD 80 (February 14, 2006) (directive to remove campaign button before entering labor-management meeting did not violate Rules); Stockton, 2001 EAD 292 (March 31, 2001) (member displays of campaign emblems prohibited while dealing with any third party as a representative of the union); Mee, PR-075-LU70-PNW (April 7, 1998) (local union business agent violated Rules by wearing campaign hat and t-shirt while representing members at grievance meeting);  and Green, P-320-LU20-SEC (February 7, 1996) (local union president violated Rules by wearing campaign button to carhaul labor-management meeting, where he attended meeting in representational capacity).  We construe this prohibition to extend to the full image of a union representative that appears in a Zoom video feed, including material that may be seen in the background, behind where the union representative is sitting.

We find that the arrangement of the framed photo, block N misoriented to a block Z, and sucks sign that appeared in the background of Núñez’s Zoom feed was a campaign message in opposition to the O'Brien-Zuckerman 2021 slate and was intended as such.  Núñez’s explanation of inadvertence is not credible.  The message violated the Rules first as a partisan display in the union hall, thus using union resources to present the message.  It also violated the Rules because Núñez displayed it during a joint labor-management grievance meeting, where a partisan message displayed to third parties by a union official acting in that capacity is prohibited.

For these reasons, we GRANT both protests.

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 note that, since a time immediately after the filing of each protest, Núñez has not engaged in like behavior again and has taken other action to mitigate the harm of the violations.  Thus, we note that he took the Instagram post down promptly and on his initiative after that protest was filed and has not used a union publication for a similar purpose since then.  Further, we note that on the final day of the joint labor-management grievance panel at issue in the second protest, Núñez corrected the orientation of the block N, which had the effect of destroying the partisan message we found the misorientation conveyed on 2 previous days.  Both of these actions are to Núñez’s credit and mitigate the effect of the Rules violation.  It perhaps is a formality then that we order Núñez to cease and desist from further violations of the Rules, because Núñez has behaved in conformance with the campaign provisions at issue in this case since March 2021. 

            However, we find that Núñez violated his obligation to cooperate with the Election Supervisor by presenting contrived explanations for both Rules violations.  His contentions in both cases that he was ignorant of the partisan messages his conduct presented and did not intend those messages to be partisan demonstrated a plan to deceive the Election Supervisor’s representative – and thereby disrespect the process the Rules are in place to promote – in violation of his obligation to cooperate under Article XIII, Section 2(g).[1]  Accordingly, in addition to the remedial order stated above, we further order Núñez to cooperate with the Office of the Election Supervisor by providing truthful and candid responses when investigative inquiries are made.  To reinforce this obligation, we order Núñez to remit the sum of $500 from personal funds to the Office of the Election Supervisor no later than Friday, November 5, 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.  Núñez 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.

            We order no further remedy.

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 171

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

Mark Davison

94teamster@gmail.com

Teamsters Local Union 431

Teamsters431@sbcglobal.net

Deborah Schaaf

dschaaf@ibtvote.org

Jeffrey Ellison

EllisonEsq@gmail.com