IN RE: PAUL GARCIA, Protestor.
Protest Decision 2006 ESD 324
Issued: July 9, 2006
OES Case No. P-06-287-051906-FW
Paul Garcia, member and president of GCC Local Union 404M, 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 Doug Brown, vice president and business agent of the local union, had not completed the remedy we ordered in Garcia, 2006 ESD 193 (April 20, 2006), aff'd, 06 EAM 31 (May 12, 2006).
Election Supervisor representatives Michael Four and Jeffrey Ellison investigated this protest.
Findings of Fact and Analysis
In Garcia, we found that Brown had campaigned on time paid for by the union when he delivered campaign material to a work site. Among other remedies not at issue here, we ordered that Brown sign and post a notice on all union bulletin boards under the local union's jurisdiction.
The protest alleged that Brown did not comply with this remedy. Specifically, the protest alleged that Brown sent unsigned notices to work sites and that he enclosed the notices in envelopes that carried a return address that read in part "Elect Doug Brown."
Brown told our investigator that, immediately after the decision of the Election Appeals Master was issued, he began compliance with the notice posting order. He signed the notice, copied it at his own expense, and prepared envelopes for mailing the notice to shop stewards. Investigation showed that, using established union procedures for communicating with stewards, Brown initially mailed the notice to each work site using labels that were addressed solely to the name of the employer but not otherwise directed to the shop steward at the site. After protestor Garcia orally questioned whether such mailing was sufficient, Brown voluntarily remailed the notices to each facility and added a handwritten "Shop Steward" to the mailing label. The envelopes included only the notice with no other letter or instructions. The notice stated on its face that it was required to be posted on all union bulletin boards for a period of 30 consecutive days.
The protest, which was filed before Brown sent the second mailing, alleged that 2 stewards protestor Garcia identified had not received or posted the notice Brown was required to send to them. One steward, Randy Chambers at Mission Engraving, told our investigator that the only notice he received was the one marked "Shop Steward" on the envelope. He stated that he read the notice, understood it and showed it to the only other bargaining unit member at the facility, but did not post it because they are the only bargaining unit employees. Our investigator instructed Chambers to post the notice immediately anyway, and he stated he would do so.
The second steward the protestor identified, Robert Garcia, works in the print shop at an Operating Engineers local union in Pasadena, California. He said he received both notices sent by Brown. The first one was received on May 19 and was addressed to the Operating Engineers. Despite this address, he received and posted it immediately. The second one was received on May 23 and the address label had "Shop Steward" handwritten on it. Even though the second notice was identical to the first, he posted the second one as well and maintained both postings for the 30 days required by the notice.
Our investigator also spoke with 3 stewards identified to him by Brown: Danny Meyers at San Gabriel Valley Tribune, Danny Tarango at Accu-Graphics, and Gene Mayer at Cato-Litho. Tarango and Mayer stated they received both mailings and posted them promptly. Meyers said he received both as well but realized what he was to do with the notice only when he received the second mailing; he posted it promptly. Tarango posted the first notice and then replaced it with the second even though he saw they were identical; Mayer simply kept the first notice up.
Anthony Smith contacted our office and claimed that the notice had not been posted at the Santa Clarita Daily News, Brown's home shop. The shop chairman at that work site told our investigator that the notice indeed had been posted as required.
Protestor Garcia provided no additional evidence. All 5 of the stewards our investigator interviewed confirmed that the original notice did not include "Shop Steward" or their names on the envelope but that the second one did. All stewards posted the notice, whether it was the first or second received, and one steward posted both.
Finally, although Garcia also alleged that the notices were unsigned, all stewards, including those the protestor identified to us, told our investigator the notice was signed.
On these facts, we conclude that Doug Brown satisfied the notice posting remedy we ordered. The return address of "Elect Doug Brown" does not violate our remedial order because we ordered the notice posted, not the envelope in which it was mailed. There is no evidence that the envelope was posted or displayed. 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 324
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
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
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Paul Garcia, President
GCC/IBT Local Union 404M
518 West Duarte Road
Monrovia, CA 91016
Doug Brown, Vice President
GCC/IBT Local Union 404M
501 West Duarte Road
Monrovia, CA 91016-4435
Douglas117@aol.com
Michael D. Four
Schwartz, Steinsapir, Dohrman & Sommers, LLP
6300 Wilshire Blvd. Suite 2000
Los Angeles, CA 90048-5202
mdf@ssdslaw.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com