IN RE: YANKO FUENTES, Protestor.
Protest Decision 2006 ESD 258
Issued: May 19, 2006
OES Case No. P-06-207-031006-NE
Yanko Fuentes, a member and delegate candidate from Local Union 805, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that Sandy Pope, local union secretary-treasurer and delegate candidate, threatened retaliation against members who would not vote for her, in violation of the Rules.
Election Supervisor representatives David F. Reilly and Taea Calcut investigated this protest.
Findings of Fact
The protest alleged that while campaigning at White Rose Foods on or about March 5, 2006, Pope proclaimed to a group of some 50 members: "If you don't vote for me, you are going to receive a less favorable contract from the employer, and you know the contract is coming up soon." The protestor claims that Pope's language was coercive and intended to chill support for candidates who are not aligned with Pope.
Investigation showed that Pope went to White Rose on Sunday evening, March 5 to speak with second shift employees on their lunch break. She told our investigator that she said "as a union we need unity because it will be more difficult to get a good contract from this employer if we are divided. I am the president of the [local] union and I am asking for your support in this election."
Bill O'Bayley, the elected shop steward at White Rose, told our investigator that some 45 to 50 employees were in the lunchroom during Pope's remarks. He said that Pope mentioned the upcoming negotiations for a new collective bargaining agreement with White Rose and "talked about how we need to stick together and need unity more than ever, and how this delegate election is dividing when we should be unifying." The current contract with White Rose expires in February 2007. O'Bayley stated that nothing in the speech "was out of line."
The protest, filed by Walter Kane on behalf of Yanko Fuentes, neither of whom was present, stated that Pope "told the members if they did not vote for her they would receive a less favorable contract from the employer."
Edwin Arredondo told our investigator that Pope began her remarks by stating she was negotiating the new contract with White Rose. She then stated that she was running for delegate and the union would look stronger and more united if White Rose employees voted for her. According to Arredondo, Pope also said that if White Rose employees did not vote for her, they would receive a less favorable contract. Arredondo said that Pope emphasized that she would be lead negotiator for the new contract, "like it or not," and that if employees did not like what she did during contract negotiations, they could vote against her in the next local union election. Arredondo is a supporter of Yanko Fuentes, Pope's opponent for the local union's lone delegate seat. He believed that Pope's words violated the Rules, so he contacted Fuentes and told him of Pope's speech. This protest followed.
Another White Rose employee, Stephen Griffith, stated that Pope told members that if they did not vote for her in the delegate election, she would have no bargaining power and be laughed at during contract negotiations and would not be able to secure a favorable contract.
Analysis
Article VII, Section 12(g) of the Rules states that "[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 is prohibited."
The protest contends that Pope's statements to White Rose employees violated this provision because they were inherently coercive and threatened adverse consequences should the members not support her in the delegate election.
Retaliation under the Rules requires malicious intent. Thus, in Echeveria, 2006 ESD 66 (February 3, 2006), we found that a shop steward made prohibited threats of retaliation when he attempted to dissuade members from signing accreditation petitions for a candidate he opposed. The steward told members, "I will remember you inside if you sign [the petition]" and "If you sign this, you are not going to get any backing from me." We found that the steward had malicious intent "to compel them not to exercise their political rights by threatening to withdraw union support if they showed support for a candidate [the steward] opposed. Such conduct violates the Rules because it constitutes a 'palpable threat of actual harm.' Ostrach, 2000 EAD 57 (December 6, 2000), aff'd, 01 EAM 15 (January 19, 2001)."
Malicious intent is an established element in cases where retaliation has been found. Thus, in cases where violence occurred, the perpetrator was found inferentially to have intended the violence. See Teller, P1086 (December 27, 1991) (finding violation where a local trustee grabbed a member by the arm, tapped a finger into his chest, grabbed him by the jacket collar and pushed him against the wall); Stefanski, P282 (January 22, 1996), aff'd 96 EAM 94 (February 21, 1996) (finding violation where a member grabbed another's arm in a menacing manner and ordered him to leave the facility where he was campaigning). Further, a threat of violence carries with it an intention to commit the violent act. See Smith, P600 (April 30, 1996) (finding remark "you'll be taken out of here in a body bag" to violate Rules); Lopez, P456 (April 10, 1996) (finding "I'll kill you" to violate Rules); and Kelly, P600 (March 27, 1991) (finding threat to "kick their ass" made in menacing manner in violate Rules).
The protestor contends that Pope's statements evince an intention on her part to negotiate a poor contract for White Rose employees if they do not support her in the delegate election.
We reject this contention. We find that Pope sought to convey that employees gain strength through solidarity and that they stand to benefit if the employer concludes that they are united. Such sentiment is as old as the labor movement and is repeated, by incumbents and challengers alike, in virtually every union election. The potential harm of a poor contract that Pope identified was not, as the protestor contends, harm that would result from any malicious action Pope might take. Instead, it was a result that might occur if the employer detected and exploited a lack of solidarity. That Pope did not state a malicious intention to retaliate against the members is verified by her challenge that if members did not like the contract she negotiated in their behalf, they could vote against her in the next local union election.
On the facts presented here, we find no violation of the Rules.
Accordingly, we DENY this protest.
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 Supervisor 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
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
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, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 258
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Yanko Fuentes
233 Walker Street
West Babylon, NY 11704
Walter Kane
Cary Kane LLP
1350 Broadway, Suite 815
New York, NY 10018
Alexandra E. Pope
President, Local Union 805
44-61 11th Street, 3rd Floor
Long Island City, NY 11101
David F. Reilly, Esq.
22 West Main Street
North Kingston, RI 02852
dreilly@rooltd.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com