IN RE: RAUL RODRIGUEZ, JR.,
Protest Decision 2001 EAD 371
Issued: May 18, 2001
OEA Case No. PR041312WE
Raul Rodriguez, Jr., a member of Local 630 and 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 the local impermissibly retaliated against him for his Rules-protected activity; he further alleges the campaign use of his criminal records history violates the Rules.
Election Administrator representative Dolly Gee investigated the protest.
Findings of Fact and Analysis
1. Alleged retaliation. Rodriguez asserts he was excluded from a joint labor-management meeting held at his employer's facility on April 12 because of his activity in support of International officer candidate Tom Leedham. He argues he was knowledgeable about the issues discussed at the meeting and should have been permitted to attend.
The local counters that Rodriguez was not an elected steward and thus had no standing to attend the meeting. Further, the issues discussed pertained to the mechanized warehouse, not the salvage facility where Rodriguez worked.
Investigation showed Rodriguez is the recognized if not formally elected spokesman for the 10 to 15 employees working in the salvage facility. He routinely files grievances on issues arising there, deals with management concerning those grievances, and is accorded the status of steward by the employer and the employees he represents. Moreover, the local has periodically invited him to attend meetings of stewards, signaling its view that he has steward status.
Joint labor-management meetings similar to the one held April 12 were conducted 8 times in the final 8 months of 2000. The local invited Rodriguez to the September, October and December meetings because the agenda included issues relevant to the salvage facility. However, the remaining meetings did not concern salvage and Rodriguez accordingly was not invited.
Rodriguez argues his exclusion from the April 12 meeting was retaliation for his electoral activity. Although the meeting's agenda was limited to issues in the mechanized warehouse and not salvage, Rodriguez points to his 30 day assignment to the warehouse, ending April 17, and the grievances he filed on warehouse issues while assigned there as justification for attending the meeting.
Article VII, Section 11(g) of the Rules prohibits "[r]etaliation or threat of retaliation … for exercising any right guaranteed by … the Rules." To establish a violation of this provision, the protestor must show that conduct protected by the Rules was a motivating factor in the adverse decision or conduct in dispute. The Election Administrator will not find retaliation if he concludes that the union officer or entity would have taken the same action even in the absence of the protestor's protected conduct. Higdon, 2001 EAD 325 (April 24, 2001); Hoffa Unity Slate, 2001 EAD 330 (April 27, 2001); Local 728 Unity Slate, 2001 EAD 369 (May 16, 2001).
We find insufficient evidence that Rodriguez's electoral activity was a motivating factor in the local's decision not to invite him to the April 12 meeting. Central to our determination is that the meeting was held to review issues in the warehouse. Rodriguez was not invited to such meetings in 2000, before he undertook his electoral activities; yet he was invited to meetings concerning salvage issues late in 2000, even though he had begun campaigning for candidates opposed by the local's incumbent officers. Although Rodriguez was temporarily assigned to the warehouse during April, his return to salvage was imminent. The local was obliged to pay the wages of the stewards who attended the meeting, and its decision to invite only those stewards permanently assigned to the warehouse appears free of retaliatory motive.
Accordingly, we DENY this aspect of the protest.
2. Rodriguez's criminal record. A sheet listing Rodriguez's convictions on traffic-related charges was found posted on the lunchroom bulletin board at the warehouse of another employer under the local's jurisdiction. The posting was observed before March 1 and Rodriguez learned of it immediately. The identity of the person who made the posting is unknown.
We DENY this aspect of the protest as well. First, it is untimely filed. Article XIII, Section 2(b) requires that a protest be filed within 2 days of the date the activity giving rise to it occurs or is discovered. Here, Rodriguez waited some six weeks to protest the posting.
Moreover, assuming Rodriguez's point that the posting was made for campaign purposes, "the Election Administrator does not regulate the content of campaign material, even statements that are false or defamatory." Leedham Slate, 2001 EAD 343 (May 4, 2001). See also Gamaza, 2001 EAD 278 (March 28, 2001); Romero, 2001 EAD 140 (February 6, 2001).
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 NW, Tenth Floor, Washington, DC 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 371
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
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 Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Raul Rodriguez, Jr.
13882 Stage Coach Circle
Victorville, CA 92392
IBT Local 630
750 S. Stanford Avenue
Los Angeles, CA 90021
Jerry Vercruse
IBT Local 630
750 S. Stanford Avenue
Los Angeles, CA 90021
Kenneth Young
Wohlner, Kaplon, Phillips, Young & Cutler
15760 Ventura Blvd.
Suite 1510
Encino, CA 91436
Dolly Gee
Schwartz, Steinsapir, Dohrmann &
Sommers
6300 Wilshire Blvd.
Suite 2000
Los Angeles, CA 90048