IN RE: JIMI RICHARDS,
Protest Decision 2000 EAD 27
Issued: September 27, 2000
OEA Case No. PR071101AT
See also Election Appeals Master decision 00 EAM 8 (KC)
This decision supplements our earlier decision in 2000 EAD 11. Jimi Richards, a member of Local Union 728, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules")against Earl Parker, Local 728 business agent. The protester alleges that Parker, a vocal opponent of Teamsters for a Democratic Union ("TDU"), attended a meeting of the Georgia Chapter of TDU for the sole purpose of conducting surveillance and interfering with the meeting by making threats and intimidating those present in violation of the Rules.
Election Administrator representative Dolores Hall investigated the protest.
The Election Appeals Master remanded this case for further investigation. 00 EAM 4. He found that this case "turns upon a pure credibility determination." He directed further investigation regarding whether Earl Parker, a business agent for IBT Local 728, told Local 728 member Eric Robertson that he was present at the restaurant site of a TDU meeting on July 8, 2000, as a "watchdog." Robertson claims that Parker made this statement; Parker denies it.
In our decision in 2000 EAD 11, we found that, based upon objective circumstances, Parker's conduct constituted improper surveillance of the TDU meeting even if he did not make the "watchdog" statement to Robertson:
Here, Parker appeared at the meeting site well before the beginning of the meeting, conduct which, according to several witnesses, made TDU members fear retaliation for their attendance, given Parker's hostility to TDU and his position as a business agent in the local. Viewed objectively, Parker's conduct gave every appearance of improper surveillance, even if he denies that such was his intent.
(Emphasis supplied.) In this supplemental decision, we have adhered to the view stated in 2000 EAD 11 that allegations of improper surveillance rise or fall based upon objective circumstances, and believe that this view represents the correct interpretation of the Rules.[1] We have, as directed, conducted the supplemental investigation ordered by the Election Appeals Master. Based upon that supplemental investigation, we credit Robertson's description of his interchange with Parker. For this and the other reasons stated below, and for the reasons stated in 2000 EAD 11, we find that Parker's conduct violated those provisions of the Rules discussed in our earlier decision.
Supplemental Findings of Facts
On remand, the Election Administrator's representative interviewed a number of witnesses concerning the alleged "watchdog" comment. Jimi Richards stated that Robertson approached him in the parking lot of the Shoney's restaurant and asked Richards who the fellow was that was sitting in the restaurant. Richards said Robertson had only been an IBT member for three months and did not know Parker. Richards stated that Robertson told him that he had walked into the restaurant and did not see anyone he knew. He told Richards that he then asked the restaurant manager if this was where the TDU meeting was being held, and that the manager told him that the fellow sitting by the window (Mr. Parker) was also there for the meeting. Robertson reported that he approached Parker and asked him if he was there for the TDU meeting, and that Parker said "Hell no, I don't have anything to do with TDU and never will, I am here as a watchdog." Richards stated that TDU supporters Greg Charron, Benny Stephenson and Calvin Baker were with Richards when Robertson reported the above.
Stephenson and Baker corroborated Richards's report of Robertson's description of his one-on-one discussion with Parker. Stephenson and Baker stated that Robertson approached the TDU members in the parking lot (Stephenson, Baker, Richards and Charron) and told them that he had approached Parker in the restaurant after being directed to Parker by the restaurant manager. According to Stephenson and Baker, Robertson reported that Parker said he was not associated with TDU, and was there as a watchdog.
Charron related the same occurrence. According to Charron, Robertson reported to the group in the parking lot that Parker had said in response to Robertson's asking if he was present for the TDU meeting, "Hell, no. I've never been a Goddamn TDU and I will never be a Goddamn TDU. I am a watchdog."
Parker denies telling Robertson that he was at the restaurant as a "watchdog." Based on the corroboration of Robertson's claim by four other persons, to whom Robertson repeated Parker's remarks shortly after the one-on-one conversation in which they occurred, we credit Robertson. We find that Parker did indeed tell Robertson that he was not at the TDU meeting site as a TDU supporter, but rather as a "watchdog." This credited testimony provides additional support for our conclusion that Parker engaged in surveillance of the TDU meeting.
In addition, Parker's "watchdog" statement undermines his claim that he attended the meeting merely to voice his views about internet postings that upset him. Parker's "watchdog" statement conveyed to Robertson that he was engaging in activity that merited being "watched," when in fact that activity (attendance at a TDU meeting concerning electoral activity) was protected conduct under the Rules.
We also repeat our reliance on the conversations that Parker had with Local 728 president Waymon Stroud and others on the evening of July 7, when Parker told an assembled group of union officials that he intended to attend the TDU meeting and asked if anyone else intended to go with him. No one would. Parker did not exercise the same discretion as his colleagues.
Finally, we again note that after being told by Richards that the TDU meeting was not open, and being asked to leave, Parker hesitated, and left only after Richards stood up and approached him. This conduct only heightened the coercive effect of Parker's presence.[2] Against this, we cannot find that Parker's anger at internet postings about his father justified his attendance at a meeting of a political group he openly opposed, especially where the manner in which Parker conducted himself created the impression of surveillance.[3]
Analysis and Conclusion
The Rules, at Article VII, Section 11(a), guarantee to members the "right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions." Article VII, Section 11(g) reinforces this basic right through its prohibition of "[r]etaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules..."
These rights are fundamental to the conduct of a fair and open election. A fair and open election is the "central purpose" of the Consent Decree. U.S. v. IBT, 948 F.2d 98 (2nd Cir. 1991). Acts of "coercion, interference or harassment of members in the exercise of these [are] forbidden. Surveillance is one of those acts." Giacumbo, P210 (December 5, 1995). See also Pollack, P8 (October 29, 1990), aff'd, 90 EAM 8.
Here, Parker appeared at the meeting site well before the beginning of the meeting, conduct which, according to several witnesses, made TDU members fear retaliation for their attendance, given Parker's hostility to TDU and his position as a business agent in the local. Viewed objectively, and because of Parker's comment that he was at the meeting site as a "watchdog," his conduct gave every appearance of improper surveillance.
For the foregoing reasons and the reasons stated in 2000 EAD 11, the protest is GRANTED.
Remedy
When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interfering with the election process. Based on the foregoing, the Election Administrator orders the following:
Earl Parker shall immediately cease and desist from any surveillance or creation of the impression of surveillance of membership activity protected under the Rules. Additionally, Parker is enjoined from taking any adverse action against persons because of their membership in or support for TDU.
Within five (5) days of receipt of this decision, Parker shall have the attached "Notice To Local Union 728 Members and Employees" posted at the Local Union offices of Local 728. Within that same time period, Local 728 shall post the attached "Notice to Local Union 728 Members and Employees" on all bulletin boards at Local Union 728 worksites.
Within two (2) days after making the postings required in Paragraph 2 above, Mr. Parker must submit an affidavit to the Election Administrator attesting to his compliance with this order.
An order of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73.
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. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, c/o International Brotherhood of Teamsters, 25 Louisiana Ave., NW, Washington, DC 20001, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
Dolores Hall
J. Griffin Morgan
2000 EAD 27
NOTICE TO TEAMSTERS LOCAL UNION 728 MEMBERS AND EMPLOYEES
The Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") prohibit interference with Local Union members' right to participate in campaign activities. No IBT or Local Union official or employee may interfere with your rights by engaging in surveillance of your campaign activities or by coercing you with respect to those activities.
The Election Administrator will not permit any interference with the right of IBT members to assemble freely and to campaign in support of any candidate.
The Election Administrator has concluded that such interference has occurred and has ordered Earl Parker, Local 728 business agent, to cease and desist from interfering with and/or threatening the right of IBT members to attend Teamsters for a Democratic Union ("TDU") meetings, to campaign for TDU supported candidates, or to otherwise express support for TDU. The Election Administrator has further ordered that Mr. Parker be enjoined from taking any retaliatory actions against any person because of their membership in or support for TDU.
Any protest you have regarding your rights under the Rulesor any conduct by any person or entity which violates the Rulesshould be filed with William A. Wertheimer, Jr., Office of the Election Administrator, 25 Louisiana Ave., NW, Washington, DC 20001, telephone 800-565-VOTE, telecopier (202) 624-8711
___________________________
Earl Parker, Business Agent
IBT Local 728
This is an official notice and must remain posted for thirty (30) consecutive days from the day of initial posting, and must not be altered, defaced or covered by any other material.
Prepared and approved by William A. Wertheimer, Jr., Election Administrator for the International Brotherhood of Teamsters.
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Mr. Jimi Richards Mr. Waymon B. Stroud, Sr.
2875 Ackworth Due West Road President, Teamster Local 728
Kennesaw, GA 30152 2540 Lakewood Ave., SW
Atlanta, GA 30315
Earl Parker, Business Agent
Teamster Local 728 Kenneth Hilbish, President
2540 Lakewood Ave., S.W. Teamster Local 528
Atlanta, GA 30315 2540 Lakewood Ave., S.W.
Atlanta, GA 30315
Teamsters for a Democratic Union
7437 Michigan Ave. James Fagan
Detroit, MI 48210 Stanford, Fagan & Giolito
1401 Peachtree Street NE
Bradley J. Raymond Suite 238
Finkel, Whitefield, Selik, Raymond, Atlanta, GA 30309
Ferrara & Feldman
32300 Northwestern Highway Patrick Szymanski
Suite 200 IBT General Counsel
Farmington Hills, MI 48334 25 Louisiana Avenue NW
Washington DC 20001
J. Douglas Korney
Korney & Heldt Paul Alan Levy
30700 Telegraph Road Public Citizen Litigation Group
Suite 1551 1600 20th Street N.W.
Bingham Farms, MI 48025 Washington, D.C. 20009-1001
Barbara Harvey Betty Grdina
Suite 1800 Yablonski, Both & Edelman
Penobscot Building Suite 800
645 Griswold 1140 Connecticut Ave. N.W.
Detroit, MI 48826 Washington, D.C. 20036
Tom Leedham
18763 South Highway 211
Molalla, OR 97038
[1] See Giacumbo, 95 EAM 45, p. 7 (December 18, 1995)("the appearance of surveillance of IBT members engaging in campaign activities violates the right of members to support candidates free from coercion, interference or harassment.") See also NLRB v. Grand Canyon Mining Co., 116 F.3d 1039, 1045 (4th Cir. 1997)("creat[ion of] an impression of surveillance" violates NLRA prohibition against coercion of employee right to engage in protected union activity (emphasis supplied).) See also BRC Injected Rubber Products, Inc., 311 NLRB 66, 71 (1993). The National Labor Relations Board has long applied an objective test in cases where unlawful restraint and coercion of employee rights is alleged, and, rather than focusing on motive, holds that the appropriate test is whether the challenged conduct "may reasonably be said … to interfere with the free exercise of employee rights under the Act." NLRB v. Ford, 170 F.2d 735, 738 (6th Cir. 1948).
[2] We also note that Charron and Stephenson also stated that Parker had to be asked to leave the meeting several times before he did so. Parker admitted this. Moreover, as did Richards and Parker, Charron stated that it was only after Parker was physically approached that he left the meeting. (Charron recalls that he was one of those that approached Parker; Richards and Parker state that it was Richards.) Similarly, Baker stated that Parker left only after several individuals approached him.
[3] In our decision in 2000 EAD 11, we noted Parker's statement after he entered the TDU meeting concerning his feelings about "Savannah Sam", the moniker of the person who posted messages on the internet critical of Parker's father, and assumed that Parker had made that statement. (Indeed, all witnesses asked about the meeting report the same statement by Parker; this is not in dispute.) Parker's statement does not, however, alter our conclusion that he improperly created the impression of surveillance of the TDU meeting, which was advertised as being about the 2000-2001 elections. Our conclusion that such improper surveillance occurred is based upon objective circumstances, not on Mr. Parker's feelings - justified or not - about "Savannah Sam."