OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: TEAMSTER POWER                        )                                 Protest Decision 2020 ESD 4
                                                                            )                                 Issued: July 3, 2020
Protestor.                                                           )                                 OES Case No. P-008-070120-NA
______________________________________)

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 O’Brien-Zuckerman 2021 campaigners violated the Rules by hanging campaign banners on employer fences when campaigning in employee parking lots.

Election Supervisor representative Jeffrey Ellison investigated this protest.

Findings of Fact and Analysis

Photos posted to the Facebook page of O’Brien-Zuckerman 2021 showed three instances – at a Kroger warehouse in Louisville KY and UPS hubs in San Diego CA and Charlotte NC – where campaigners for the slate campaigned in employee parking lots, soliciting accreditation signatures and distributing literature.  In each instance, the photo depicted a campaign banner hanging from the employer’s chain link fence.  The protestor contends that using the employer’s fence to suspend a campaign banner violated the Rules’ prohibition on use of employer resources to campaign.  

Article XI, Section 1(b)(2) prohibits an employer from contributing anything of value “where the purpose, object, or foreseeable effect of the contribution is to influence … the election of a candidate.”  The prohibition “extend[s] beyond strictly monetary contributions made by an employer and include[s] use of employer … equipment [and] facilities.”  Just as affixing campaign stickers to employer property can convey the false impression that the employer supports a candidate (O’Brien-Zuckerman 2021, 2020 ESD 3 (July 3, 2020); Feeley, P-874-LU817-MGN (September 17, 1996); Maney, P-956-IATSE-NYC (October 2, 1996), aff’d, 96 Elec. App. 251 (KC) (October 15, 1996); Knox, P-1006-SFD-MGN (October 14, 1996)), hanging a banner from an employer’s fence can convey the same impression.  Pope, 2011 ESD 332 (September 28, 2011).  The Rules bar a candidate from accepting such a contribution and holds the candidate strictly liable for insuring that each contribution received is permitted by the Rules.  Article XI, Section 1(b)(13).

The Rules, at Article VII, Section 12(e), provide a limited exception to the broad prohibition on use of employer resources to campaign.  This provision permits candidates and members to campaign on employer parking lots where employees park their vehicles.  Thus, campaigners may enter and use such parking lots to solicit members employed at such facilities, provided that such campaigning does not “materially interfere with the normal business activities of the employer” and that neither the campaigners nor the members being solicited are on working time.  Such parking lot campaigning is of necessity a use of an employer resource; its express inclusion in the panoply of campaign rights negates any contention that such exercise violates the provision barring use of employer resources to campaign.

O’Brien-Zuckerman 2021 argues that use of the fence next to where campaign activity occurs should be deemed part of the right campaigners have under the parking lot exception.  It cites a practice of using employer fencing in such a way that has extended over several election cycles.  Under this practice, arriving campaigners hang a banner on the fencing – sometimes with ties but frequently with coat hanger hooks – and remove the banner when they leave the lot.  Anecdotal evidence our investigator obtained from other sources suggests that such use of employer fencing during parking lot campaigning has been a common occurrence.  History also shows, however, that display does not require use of employer fencing or other property to display campaign materials.  Parking lot campaigners have hung banners from portable tables or canopies that the campaigners bring to the site.

We note, however, that the parking lot exception incorporated expressly into the Rules is limited to the parking lot and does not by its terms extend to fencing that borders the lot.  In Eckstein, P-1157-LU641-PNJ (November 6, 1996), a case cited by the protestor that involved fencing but not the employee parking lot, the Election Officer found that a sign posted on the employer’s fence inside the work yard violated the Rules.  In Pope, 2011 ESD 332 (September 28, 2011), we found that banners hung on employer parking lot fencing only during the period that campaign activity was occurring violated the Rules.  

We discern no valid reason to depart from the Pope precedent or the plain language of Article XI, Section 1(b)(2).  For this reason, we GRANT the protest and find that O’Brien-Zuckerman 2021 supporters’ use of employer fencing to support campaign banners during parking lot campaigning violated the Rules.  As remedy, we direct the slate and its supporters to cease and desist from such use.  We further direct that the slate remove from its campaign Facebook page and any other materials where they appear any and all photos that depict a banner affixed to employer fencing.  Going forward, if slate supporters wish to use a banner during parking lot campaigning, they must supply their own means of supporting it. 

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
    2020 ESD 4



        
        
     
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

Kevin Moore
Mooregp2021@gmail.com

F.C. “Chris” Silvera
fitzverity@aol.com

Ken Paff
Teamsters for a Democratic Union
ken@tdu.org
 
Jeffrey Ellison
EllisonEsq@gmail.com