IN RE: Alfonso Valdez and Richard Foulkes,
Protest Decision 2001 EAD 304
Issued: April 16, 2001
OEA Case No. PR030614WE, PR030615WE and PR031615WE
See also Election Appeals Master decision 01 EAM 68 (KC)
Alfonso Valdez and Richard Foulkes, members of Local 741 and candidates for delegate and alternate delegate on the Strong Teamsters for a Change slate ("Strong Teamsters slate"), filed pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). Valdez and Foulkes generally allege that supporters of the Pardo/Thompson Unity Slate ("Unity slate") threatened and retaliated against them while they campaigned. We deferred these protests for post-election consideration pursuant to Article XIII, Section 2(f)(2).
Election Administrator representatives Paige Keys and Lisa Sonia Taylor investigated this protest.
Background
On February 11, 2001, Local 741 conducted its nomination meeting to determine candidates for its membership's election of one delegate and one alternate. Valdez and Foulkes were nominated as members of the Strong Teamsters slate. Roger Pardo, Local 741's president, and Ken Thompson were nominated as members of the Unity slate. Pardo is related to Joey Gasca, Local 741's secretary-treasurer, as well as other members of the Gasca family named in the protests. These members of the Gasca family are also Local 741 members. Valdez and Foulkes allege a number of instances of misconduct by the Unity slate and various members of the Gasca family. We address these allegations seriatim.
Findings of Fact and Analysis
1. Allegations regarding campaigning at Allied Systems in Renton, Washington. The protestors allege that Tim McCarthy, a member of Local 741 and its election committee, interfered with Valdez and Foulkes' right to campaign at the Allied Systems ("Allied") terminal in Renton, Washington. They also claim that McCarthy threatened and intimidated Peter Sharp, a supporter of the Strong Teamsters slate.
McCarthy is a driver for Allied and supports the Unity slate. On March 5, 2001, at approximately 5:55 a.m., Valdez and Foulkes were handing out campaign literature and talking to members in the Allied break room. The literature consisted of four sheets of paper stapled at the top. They placed campaign literature on each table in the break room then sat down to talk with members about election-related issues. Allied drivers regularly sit in the same seats while in the break room. On this day, Valdez sat in Sharp's chair and Sharp sat in McCarthy's seat. McCarthy entered the break room at 6:00 a.m. and sat in another chair at the same table. He placed his briefcase on one of the campaign flyers that Valdez and Foulkes had placed on the table. McCarthy then pulled the flyer out and threw it away.
Valdez told McCarthy that he should not throw their materials in the garbage. McCarthy responded, "Well, as far as I'm concerned, it is garbage." Valdez retrieved the literature from the trash, and he and Foulkes left. As McCarthy moved to another table he commented to Sharp that he "did not want to disturb anyone's well-being." An argument ensued between McCarthy and Sharp during which McCarthy stated, "If you want to get smart, let's go outside the gate." A manager heard the remarks and told both men to break it up. McCarthy denied that he threatened Sharp, and claimed he was attempting to avoid an altercation at work. McCarthy and Sharp have had prior disputes on the job.
Article VII, Section 11(d) provides that no restriction be placed on a candidates preexisting right to campaign on employer premises. We find that there is no evidence to show that McCarthy restricted Valdez and Foulkes' right to campaign in Allied's break room. Valdez and Foulkes placed one campaign flyer on a table at which McCarthy regularly sits. Although we find that McCarthy knew that the literature was campaign-related, McCarthy had the right to discard the flyer if he chose. Valdez and Foulkes placed literature on every table, and McCarthy did not prevent this. Nor do we find that McCarthy improperly threatened Sharp, since the exchange between the two did not go beyond the "heated debate" permitted by the Rules. See Jorgensen, 2000 EAD 72 (December 26, 2000). Accordingly, these protest allegations are DENIED.
2. Allegations regarding campaigning at Consolidated Freightways.
A. The protestors allege that Bobby Gasca disrupted Valdez and Foulkes while they campaigned at Consolidated Freightways ("Consolidated") in Renton, Washington and intimidated other members. Foulkes also alleged that Stan Brossard, a dispatcher at Consolidated, restricted their right to campaign on Consolidated's premises, by asking them to leave while they were campaigning.
Bobby Gasca is an employee of Consolidated and a member of Local 741. On March 5, 2001, at approximately 7:40 a.m. Valdez and Foulkes were campaigning in the break room at Consolidated's Renton facility. Bobby Gasca entered the break room and overheard Valdez and Foulkes talking about Pardo and Joey Gasca. At this point, Bobby Gasca commented loudly and angrily that Foulkes had made racist remarks about Mexicans. When Valdez attempted to defend Foulkes, Bobby Gasca told him to "stay out of it" and then told him to leave. Bobby Gasca and Foulkes argued loudly in the break room in the presence of several employees.
Brossard heard the argument and asked Bobby Gasca if he wanted Valdez and Foulkes to leave. Brossard stated that he then ordered them off the premises because they were being disruptive. He indicated that his decision to ask the men to leave the premises was based on their disruptive behavior, not on their campaign activity. He added that he did not tell the men that they could not return, but suggested that they return at another time.
Foulkes stated that as they were leaving Bobby Gasca made threatening moves toward him and shouted, "do you want some, I'm right here!" Gary Ackerson and Jeff Seilinger, two Consolidated employees that were present during the altercation, testified that the argument here was mutual. Neither said that Bobby Gasca actually threatened Foulkes or Valdez, nor that Gasca intimidated them. Gasca admitted that he "lost his cool," but denied threatening Valdez and Foulkes. Lee VanPevenage, terminal manager, for Consolidated, subsequently reprimanded him for his conduct.
We DENY this protest allegation because again the interchange here did not go beyond a heated and mutual debate.
B. Foulkes also alleges that his manager at Consolidated conspired with the Unity slate to restrict his right to campaign in the break room at the Renton facility. In prior delegate and local union elections, candidates were allowed to campaign in the break room there. On March 12, 2001, terminal manager, Lee VanPevenage, sent a letter to Joey Gasca that stated, "…we no longer will allow campaigning in our facility. As per the contract it should be limited to the car parking lot." Foulkes claims that VanPevenage, allegedly a close friend of Joey Gasca, conspired with the Unity slate to deny Foulkes access to the members at Consolidated. Foulkes later added to this protest by alleging that VanPevenage's actions prevented him from campaigning at Consolidated from March 12 to March 21, 2001.
After the protest was filed, Consolidated's corporate Labor Relations Department contacted VanPevenage and ordered him to restore access to the break room. On March 21, 2001, VanPevenage sent a second letter to J. Gasca that stated, "…we will allow campaigning in our breakroom (sic) during scheduled breaks, or before the start of a shift. Employees must be either on break or off the clock."
VanPevenage says he initially denied access because of the above-discussed March 5, 2001 break room argument. He believed that the new policy would eliminate disruptive conflicts among candidates. He denies that he conspired with any party to change the policy, and we have found no evidence to the contrary.
Article VII, Section 11 (d) of the Rules provides that no restrictions can be placed upon candidates' or members' preexisting rights to campaign on employer premises. The action taken here was a temporary one, occurring in response to a heated argument between the opposing sides. Moreover, the corporate hierarchy quickly reversed the change in policy. Nor was there any evidence that the restriction temporarily imposed by VanPevenage was discriminatory. Therefore, any alleged harm caused by the ban on campaigning in the break room for nine days would have been suffered by both slates equally. We also note that the restriction only applied to the break room; candidates were not prevented from campaigning in the parking lot. In these circumstances, we DENY the protest allegation.
3. Allegations regarding campaigning at Allied Systems in Kent, Washington. The protestors allege that Ray Gasca, a shop steward at Allied, threatened and intimidated Valdez and Foulkes as they campaigned in the break room of the Allied facility in Kent, Washington.
On March 5, 2001, at approximately 11:20 a.m., Valdez and Foulkes were campaigning in the break room. There were approximately five people in the break room at this time including Ray Gasca. At some point, Foulkes leaned on the back of Ray Gasca's chair. Gasca moved his chair. Foulkes asked Gasca if he was in his way, to which he responded, "Damned right you are … get the f*** out of my way!"
Valdez and Foulkes stated that Ray Gasca then turned to Valdez and asked, "what are you looking at you white Mexican?" Foulkes claims that after Gasca's outburst members in the break room would no longer talk to them.
Gasca admitted that he swore at Foulkes, but says he called Valdez a "white token."[1] He stated that he was angry over the fact that Valdez and Foulkes were handing out literature that contained false allegations about his family members and were disturbing his break. He stated that, as Foulkes was talking to a member, he told the member, "be careful; he (Foulkes) may have a tape recorder."
Gasca was angered by the content of Valdez and Foulkes' campaign literature. However, his response went beyond loud, heated, rude or obnoxious behavior, and deteriorated into a racial slur. We find that such language violates the Rules because it has the foreseeable effect of intimidating members and inciting them to violence. The fact that Ray Gasca is a steward makes this behavior even more unacceptable. Accordingly, we find that Ray Gasca violated the Rules in this interchange.
This protest is being considered in a post-election context. Therefore, the Election Administrator must consider whether the violation "may have affected the outcome of the election," under Article XIII, Section 3(b) of the Rules. A violation of the Rules alone is not grounds for setting aside an election unless there is a reasonable probability that the election outcome may have been affected by the violation. Wirtz v. Hotel Employees, Local 6, 391 U.S. 492, 507 (1968). While a violation creates a presumption that the outcome was affected, that presumption "may of course be met by evidence which supports a finding that the violation did not affect the result." Id.; Dole v. Mailhandlers, Local 317, 711 F.Supp. 577, 581 (M.D. Ala. 1989); see also Platt, Post-1 (March 14, 1996), rev'd on other grounds, 96 EAM 144 (March 29, 1996) ("To determine whether an effect exists, the Election Officer determines mathematically whether the effect was sufficient in scope to affect the outcome of the election and/or whether there was a causal connection between the violation and the result or outcome of the election."); Ford, 95 EAM 46 (December 20, 1995) (However, "where the benefit conferred by a violation is significant, and the vote outcome is close, the Election Officer need not find a definitive causal link between the two.")
The results of the election for one delegate and one alternate delegate seat were tallied April 5, 2001, and show the following:
|
Delegate |
Alternate delegate |
|
Roger L. Pardo 281 Alfonso R. Valdez 162 |
Ken Thompson 291 Richard B. Foulkes 152 |
Thus, the margin of victory between the delegate candidates is 119 and the margin between the candidates for alternate delegate is 139. Based on the fact that only four members witnessed Ray Gasca's statements and the wide margins between the successful and unsuccessful candidates, we find that Ray Gasca's improper conduct did not affect the results of the election. For the foregoing reasons, while we GRANT the protest allegation, pursuant to Article XIII, Section 3(b), we will not order the delegate election rerun as a result. Instead, we order Ray Gasca to cease and desist from any future Rules violation.
4. Allegations regarding the Gasca family and supporters of the Unity slate. Foulkes alleges that members of the Gasca family and other supporters of the Unity slate have attempted to limit and interfere with his slate's right to campaign at other facilities. He claims that whenever he visits facilities to campaign, a Gasca family member is present to thwart his efforts. He stated that when news of this interference spreads, members are be less receptive to hearing what he has to say.
When interviewed, Foulkes did not give specifics about the alleged conspiracy. His witness, Bill Bowers, stated that he has never witnessed any interference and commented that, "everybody was given the opportunity to do whatever." Pardo stated that he is of the opinion that Foulkes purposely chooses places and times so that he will encounter a member of the Gasca family.
We DENY this protest allegation because of lack of evidence. Foulkes did not elaborate on the conspiracy allegations nor did he provide credible support for his claims. No evidence of a conspiracy to interfere with Valdez and Foulkes' campaign efforts has been offered.
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 15th Street, N.W., 10th 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 304
DISTRIBUTION LIST (BY UPS NEXT DAY AIR UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Rd.
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
Suite 1800
Penobscot Building
645 Griswold
Detroit, MI 48226
Tom Leedham
c/o Stefan Ostrach
110 Mayfair Lane
Eugene, OR 97404
Tim McCarthy
3023 NW 75th
Seattle, WA 98117
Ray Gasca
5112 S 292nd Street
Auburn, WA 98001
Paige Keys
12523 SE 64th Place
Bellevue, WA 98006
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. N.W.
Washington, DC 20036
R.B Foulkes (via Express Mail)
P.O. Box 2147
Vashon Island, WA 98070
Consolidated Freightways
Lee Vanpevenage
400 S W 34th Street
Renton, WA 98055
IBT Local 741
552 Denny Way
Seattle, WA 98109
Roger Pardo
29329 - 41st Avenue S
Auburn, WA 98001
Ken Thompson
757 NW Juniper Street,
Issaquah, WA 98027
Dolores C. Hall
1000 Belmont Place
Metairie, LA 70001
Bobby Gasca
7828 S 113th
Seattle, WA 98178
Peter Sharp
16320 SE 132nd Street
Renton, WA 98059
Alfonso Valdez
11211 SE 264th Street
Kent, WA 98031
[1] We find Valdez and Foulkes version of this interchange more plausible then Gasca's partial denial, and accordingly credit their testimony.