OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: TEAMSTER POWER, ) Protest Decision 2021 ESD 172
) Issued: November 4, 2021
Protestor. ) OES Case No. P-190-101521-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 Sean O’Brien, candidate for IBT General President on the O'Brien-Zuckerman 2021 slate, violated the Rules by soliciting and accepting an endorsement from Mark Wahlberg, an employer, and by impermissibly obtaining employer support in the form of obtaining campaign access to a closed movie set.
Election Supervisor representative Michael Miller investigated this protest.
Findings of Fact and Analysis
In addition to being principal officer of Local Union 25, respondent O’Brien is a member of the IBT’s Motion Picture Policy Committee, which seeks to promote movie industry employment of Teamster members and favorable wages and terms and conditions of employment for them. On October 6, 2021, he and others visited the Sunset Gower Studios, a large independent film studio in Hollywood CA. Among the group with him that day were Lindsay Dougherty, Local Union 399 recording secretary and a candidate on the O'Brien-Zuckerman 2021 slate, and Amy Gorton, communications director for that local union. O’Brien told our investigator they arrived around noon and remained for about 1 hour. There, they met with approximately 15 members of Local Union 399, who were on their lunch break in the parking lot. Although photos showed O’Brien with members holding campaign rack cards, O’Brien denied that the principal purpose of the visit was to campaign. Rather, he regarded it as a field opportunity to get a West coast perspective on issues affecting the film industry that he could apply to the sizeable segment of Local Union 25 members employed in that industry in and around Boston MA. He stated he told the members he met to vote but denied saying more than that.
O’Brien told our investigator that he has known Mark Wahlberg, the actor, since their youth in Boston. O’Brien said he sought out Wahlberg, who he understood was on set that day, and the two went to Wahlberg’s trailer to catch up for some 20 minutes. During their time together, O’Brien denied asking Wahlberg for his endorsement in the IBT election and further denied receiving it. However, at O’Brien’s suggestion, Wahlberg came out to the parking lot to meet members of Local Union 399 who were lunching there. He posed for what O’Brien said were “fan photos,” one with O’Brien alone and another with a group of members.[1] Gorton took the photos, and O’Brien and Dougherty each put the photos on their personal Facebook pages. The text accompanying the photos stated the following: “California Teamsters Local 399. Got to catch up with my friend Mark Wahlberg today, a son of a Teamster Local 25 Member and Some hardworking Teamster Drivers.” The photos were not posted to any campaign Facebook pages or other campaign social media.
Teamster Power, relying solely on the personal Facebook postings by O’Brien and Dougherty, filed this protest, alleging an impermissible endorsement of O’Brien by Wahlberg and, further, impermissible campaign access into a work area by O’Brien. The only evidence the protestor presented were screenshots of the Facebook posts.
Article XI, Section 1(b)(2) prohibits employer contributions to a candidate. Section 1(b)(13) of the same article places strict liability on each candidate to insure that all contributions received are permissible under the Rules. An endorsement is a contribution. Definition 6(f).
Wahlberg is an employer within the meaning of the Rules. He owns or co-owns at least 8 entities that employ others, including 2 movie production companies. The Rules emphasize that “employer” status is not dependent on whether the person or entity employs Teamster members. Status as an employer of any person, Teamster or not, is sufficient to trigger the prohibition on employer contributions.
The protestor argued that the mere appearance of Wahlberg with O’Brien, coupled with posting of photos on personal Facebook pages, implied an endorsement of O’Brien by Wahlberg, even if Wahlberg did not utter an endorsement. Without more, we disagree. The Facebook post did not state an endorsement, nor did the 2 photos in which Wahlberg appeared contain any campaign images, whether in partisan garb or in the display of campaign signage or handouts.[2] The text accompanying the post did not refer to the election or O’Brien’s candidacy in it.
We do not state here that an endorsement requires a verbal expression of such. Had Wahlberg’s appearance with O’Brien included campaign placards or other partisan gear, the photo composition depicting such or its posting on a campaign’s social media could well imply the employer’s endorsement of the candidate. This case does not present those facts.
The protest allegation that O’Brien gained privileged campaign access to a work area to campaign is not supported by evidence, and respondent’s proof – that the interaction with members occurred in the parking lot, not the movie set – refutes the allegation. Moreover, even if an employer had granted O’Brien access to a work area to campaign, the protest could not proceed without evidence that the protestor sought similar access on reasonable notice and was denied, Cobb, 2001 EAM 100 (October 19, 2001), evidence not presented here.
Accordingly, we DENY this protest.
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 174
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
Teamsters Local Union 399
Steven Allen Dayan
sdayan@ht399.org
Michael Miller
Miller.michael.j@verizon.net
Deborah Schaaf
dschaaf@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com
[1] O’Brien’s description of the circumstances in which the photos were taken was corroborated by Dougherty and Gorton.
[2] Wahlberg is not present in a group photo in which 2 members appear to be holding campaign rack cards. The photos in which Wahlberg is present contain no noticeable campaign material.