Protest Decisions

IN RE: MARIANO PIMENTEL,
Protest Decision 2001 EAD 251
Issued: March 21, 2001
OEA Case No. PR030112WE

See also Election Appeals Master decision 01 EAM 58 (KC)

Mariano Pimentel, temporary business representative and organizer for Local 996 and an independent candidate for delegate, 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"). He alleges that supporters of Local 996's Kahele/Kozuma slate have harassed him because of his candidacy for delegate.

Election Administrator representative Dolly Gee investigated this protest.

On March 1, 2001, Pimentel filed a protest with the Election Administrator alleging that Local 996 executive secretary and Kahele/Kozuma slate supporter April Kim harassed him by questioning his candidacy and attempting to prevail upon him to withdraw. He also alleges that Local 996 business representative and organizer Carlos Villones approached him angrily and told him to withdraw his candidacy. Finally, he alleges that a member of Local 996 stole a box of business cards that he was having printed for himself and his daughter.

During the investigation, Pimentel additionally alleged that: 1) his nominator, Roger dela Cruz, left the nomination meeting before the nominations began because Melvin Kahele, leader of the Kahele/Kozuma slate and president of Local 996, told him that the nominations were over; 2) while his car was parked at the Local 996 parking lot, the back left tire was punctured in the morning and the front right tire was punctured in the afternoon; and 3) Kahele gave him an assignment designed to harass him and prevent him from campaigning.

Finally, by an undated letter sent to our investigator during the investigation of this matter, Pimentel also claimed that business representative Jose Bruno removed his campaign literature from a union bulletin board at the Pacific Environmental Services ("Pacific") facility in Honolulu.

Findings of Fact and Analysis

Pimentel worked in housekeeping at Pacific Environmental Services in Honolulu, but was recruited in November 2000 to work for Local 996 for one year, to help with union organizing drives at businesses where there are a substantial number of employees who speak Ilocano, a Filipino dialect.

On February 3, 2001, Local 996 conducted its nomination meeting for its seven delegate and three alternate positions to the International Convention. Three slates and two independent candidates were nominated. Pimentel is one of the independent candidates.

1. Allegations against April Kim

On January 11, 2001, at approximately 7:00 p.m., supporters of the Kahele/Kozuma slate met at the Kalihi Library in Honolulu to make plans and raise money for a private inaugural celebration for the recently re-elected union officers and for the upcoming delegate election. Kim gave the opening remarks. She encouraged supporters to volunteer in the slate's fundraising efforts. During her remarks, Pimentel blurted out, "I support the Kahele/Kozuma slate." In response Kim retorted, "Mr. Pimentel, if you say you're supporting the Kahele/Kozuma slate, why are you running against them?" A dialogue between Kim and Pimentel regarding his loyalties to the Kahele/Kozuma slate followed. It lasted approximately 2 minutes.

Pimentel claims that Kim told him that he should be ashamed to run against his boss. However, Kim, Kahele and two other members who were present, deny that Kim made this statement. They also deny the allegation that Kim tried to discourage Pimentel from running or urged him to withdraw.

Based on our investigation, we conclude that Kim and Pimentel had an angry debate over the fact that Pimentel is running for delegate against the Kahele slate, but we find insufficient evidence from which to conclude that Kim harassed Pimentel to get him to withdraw. Heated comments, such as those made by Kim, do not violate the Rules and cannot be censored by the Election Administrator. See Jorgensen, 2001 EAD 72 (December 26, 2000);Rodriquez, 2000 EAD 45 (November 3, 2000) and Wasilewski, 200 EAD 14 (August 14, 2000). This aspect of the protest is DENIED for this reason and because of its untimeliness under Article XIII, Section 2(b) of the Rules.

2. Allegations Against Carlos Villones

On January 22, 2001, Pimentel approached Villones outside the local's office and asked him to second his nomination for delegate. Villones asked, "Why not support Mel Kahele's slate?" Villones claims that the conversation ended at this point and he walked away. Pimentel, however, alleges that Villones also stated, "Why don't you just let them [Kahele's slate] go, or something will happen to you." He also claims that Villones told him that he "better think it over." Villones denies making these comments.

Pimentel offered no corroborating witnesses. We do not credit his testimony, and in refusing to do so we rely upon the fact that he waited five weeks after this incident to file his protest, an act inconsistent with his professed concern about retaliation. We thus DENY this protest allegation as untimely and on its merits.

3. Allegations Regarding Business Cards

Local 996 issued over 100 business cards to Pimentel. In December 2000, he ordered the printing of more cards from Office Depot. When the cards were ready, Sweetheart Salcedo, the copy center manager at Office Depot, called Local 996 and spoke with an unidentified woman. Salcedo left a message with the woman asking her to tell Pimentel that he could pick up the cards. Shortly afterwards, an unidentified person picked up one box of Pimentel's business cards. Subsequently, Pimentel went to Office Depot to pick up his cards and discovered that one box had already been picked up.

In January 2001, business representative Dino Alvarez showed Kahele a business card that Pimentel had been handing out that did not conform to the local's standard business card. Following instructions from Kahele, Kim questioned Pimentel about his use of business cards that were not authorized by the local. On January 22, 2001, Kim issued a memo to Pimentel stating that he had no authority to print his own business cards or use Local 996's logo. Kim attached the unauthorized business cards to the memo.

Pimentel stated that the fact that Kim had his business card proves that someone from Local 996 picked up his cards. Kahele stated that the business card attached to the memo was the one Alvarez had shown him.

The Rules prohibit actions against members in retaliation for exercising their rights under the Rules. Article VII, Section 11 (a). However, there is insufficient evidence to show that Pimentel's business cards were taken with the intent to retaliate against him for running for delegate. For these reasons, and because of its untimeliness, this aspect of the protest is DENIED.

4. Allegations Regarding the February 3, 2001 Nominations Meeting

By letter dated January 16, 2001, Roger dela Cruz and Ernesto dela Rama nominated and seconded Pimentel's candidacy. At the nomination meeting on February 3, 2001, the written nomination was questioned by a member in the audience because it did not state Pimentel's name. This problem became moot when Pimentel's wife nominated him from the floor.

Roger dela Cruz showed up at the hall for the nomination meeting but left prior to the start of the meeting. According to dela Cruz, prior to the start of the nomination Kahele approached him and asked, "How did you know we were having a meeting?" Dela Cruz responded that it was posted on a bulletin board. Dela Cruz then said that he was late and Kahele responded, "It's alright. It's just an acceptance. The nomination is already over." Dela Cruz stated that as a result of this conversation, he left the meeting and went home.

Kahele denies that he told dela Cruz that the meeting was over. However, the fact that dela Cruz went home did not affect Pimentel's nomination.

There is insufficient evidence to show that Kahele either made these statements to dela Cruz or that he tried to mislead him so that he would not attend the meeting. Dela Cruz admits that Kahele did not tell him to go home but rather left the meeting on his own volition. We find that there has been no violation of the Rules. For these reasons, and because of its untimeliness, this aspect of the protest is DENIED.

5. Allegations Regarding Pimentel's Car Tires

While Pimentel's car was parked at the Local 996 parking lot on January 13, 2001, the back left tire was punctured in the morning and the front right tire was punctured in the afternoon. Pimentel provided no evidence linking the incident to any Local 996 official or employee.

Election-related vandalism violates the Rules. See Cipriani, 2001 EAD 246 (March 19, 2001) and case cited therein. Remedies have been ordered even where the perpetrator is unknown. Id. Such vandalism is a serious violation of the Rules because it can intimidate union members. See Waldron, 2001 EAD 195 (February 27, 2001). In Waldron, the Election Administrator found that "such conduct is anti-democratic, unlawful and counter to the mission of the Consent Decree and the Rules" and "must be discouraged because it interferes with important rights of members and invites undeserved public criticism of the electoral process." Id., (quoting Willett, P863 (August 16, 1996)).

While this aspect of Pimentel's protest allegation is also untimely, we believe that it is important that IBT members understand that the Rules protect them from vandalism and other forms of intimidation. Accordingly, although we make no finding as to the identity of the perpetrator(s), we GRANT this aspect of the protest.

6. Allegations Regarding Pimentel's Organizing Assignment

Around January 2001, Pimentel was assigned to organize nursing assistants at Pali Momi. On March 5, 2001, Kahele sent a memo to Pimentel directing him to give top priority to this assignment and to turn in all authorization cards by the next day so that a petition for recognition could be filed by the next week. Pali Momi is located 21 miles away from the local. Pimentel claims that Pali Momi is too far for him to travel while he is campaigning. On March 13, 2001, Kahele sent a second memo requesting the cards that Pimentel had obtained. In this memo Kahele told Pimentel that if he needed time to take care of his personal business, he should request time off. Pimentel had 24 hours of sick leave available.

We find that Kahele's request to Pimentel was legitimate and within the scope of his duties as organizer. We also find that Kahele offered a reasonable solution to Pimentel's need for time to campaign. Therefore, we cannot find that the assignment was designed to harass or prevent Pimentel from campaigning. For these reasons, this aspect of the protest is DENIED.

7. The Removal of Campaign Literature from the Union Bulletin Board

Section 7 of the collective bargaining agreement with Pacific Environmental Services states that union notices must be signed and posted by a duly authorized official of the union. Also, management at Pacific does not permit campaign literature to be posted on the bulletin boards. On March 7, 2001, business representative Jose Bruno removed campaign literature posted by Pimentel from a union bulletin board at Pacific because it was not an authorized posting. Bruno claims that he did not want other candidates to complain about unequal access to the bulleting board. Pimentel claims that he had previously posted campaign literature in support of the Kahele slate during the local officer election.

Article VIII, Section 11(d) of the Rules states that "[n]o restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity." However, where there is no past practice, there is no right to post campaign literature on a bulletin board. Lambert, P359 (February 26, 1996). There is insufficient evidence to show a past practice of posting campaign material on the union bulletin board at Pacific. Even Pimentel's witness, Roger dela Cruz, a steward at Pacific, stated that he had not seen any campaign literature on the union bulletin board, only official notices.

Accordingly, we find that there is no pre-existing right to post campaign literature on the union bulletin board at Pacific and DENY this aspect of the protest.

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:

1. Within two (2) working days of the receipt of this decision, Local Union 996 shall post the notice attached as Exhibit A on all bulletin boards in the local union hall and at all worksite bulletin boards under the jurisdiction of the local.

2. This notice will remain posted for thirty (30) days without being removed, covered or defaced.

3. Within two (2) days of receipt of this decision, the local union shall submit an affidavit to the Election Administrator attesting to its compliance with paragraph 1 of this order. Another affidavit shall be filed by the local union within two (2) days of the close of the thirty (30) day posting period referenced in paragraph 2 of this order, attesting to compliance with that paragraph.

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, 727 15^th Street, N.W., 10^th Floor, Washington, D.C. 20005 (fax: 202-454-1501), all within the time 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

2001 EAD 251

DISTRIBUTION LIST (BY UPS NEXT DAY AIR UNLESS OTHERWISE SPECIFIED):

NOTICE TO ALL LOCAL UNION 996 MEMBERS

Property of a Local 996 member has been defaced in an act of election-related vandalism. Under the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"), members have the right to participate freely and without coercion in the election of local union convention delegates and International officers. Vandalism, which is a form of harassment, has no place in the democratic process and is forbidden by the Rules.

No one, including local union officers, business agents, delegates, stewards, members or employees, may threaten, coerce, harass or otherwise retaliate or take any other adverse action against you because of your support or lack of support for any candidate.

Any attempt to interfere or retaliate against you because of your political activity in connection with the International officer or convention delegate election should be reported to William A. Wertheimer, Jr., Election Administrator, at 727 Fifteenth Street, NW, Tenth Floor, Washington, D.C. 20005; (202) 454-1500.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

This is an official notice from the Election Administrator for the International Brotherhood of Teamsters that must remain posted for thirty (30) consecutive days, and must not be altered or defaced in any manner, or covered by any other material.