IN RE: HOWARD PALMER AND EDWARD LOPEZ, Protestors.
Protest Decision 2006 ESD 327
Issued: July 18, 2006
OES Case No. P-06-305-070106-FW
Howard Palmer and Edward Lopez, members of Local Union 848, 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 shop stewards at Vons Grocery Company permitted campaigning only on a discriminatory basis, in violation of the Rules.
Election Supervisor representative Christine M. Mrak investigated this protest.
Findings of Fact
The protestors are employees of Vons Grocery in El Monte, California. The protestors complained that shop stewards Jesse Nevarrez and Juan Medina prevented campaigning for the Tom Leedham slate while allowing campaigning for the Hoffa slate. Specifically, they alleged that for approximately 15 days Hoffa campaign material was posted on the locked union bulletin board at Vons. However, when protestor Palmer slid a Leedham poster behind the glass of that bulletin board, it was promptly removed. In addition, the protestors alleged that Hoffa stickers were stuck to the outdoor walls and table adjacent to the drivers' room.
The protestors also alleged that during the last week in June 2006, shop steward Medina passed out Hoffa stickers before work in the drivers' room. Protestor Lopez approached Medina and asked for a Leedham sticker, and Medina replied, "If you're the one passing out the Leedham flyers, you need to knock it off."
Keys to the locked union bulletin board at Vons are held only by shop stewards. Investigation found that a Hoffa '06 bumper sticker was slipped behind the glass of the bulletin board and in another instance, a bumper sticker was pinned to the center of the board behind the glass. Local Union 848 secretary-treasurer Jim Santangelo, who also is Western Region vice president and candidate on the Hoffa slate for re-election to that position, told our investigator that the practice at Vons has been not to allow any campaign flyers on union bulletin boards. After the protest was filed, the Hoffa stickers were removed from the bulletin board, outdoor walls and table.
Steward Nevarrez admitted to our investigator that he had pinned a Hoffa sticker to the center of the union bulletin board. He further conceded that protestor Palmer asked him to post Leedham material but that he instructed Palmer to check with Santangelo.
Steward Medina acknowledged that someone slid a Hoffa sticker into the union bulletin board and that Nevarrez removed it. Medina denied telling Lopez not to distribute Leedham material.
Investigation further revealed that Vons remodeled the drivers' room in late 2005 and removed a general purpose bulletin board that had been in place, according to employee Gerald Moerler, for some 25 years. Moerler filed a grievance protesting the removal of the bulletin board. According to Moerler, driver supervisor Debby Houston stated at a grievance meeting that the bulletin board was removed because "the company didn't like some of the things the drivers posted." Management denied Moerler's grievance and Santangelo accepted management's answer as resolving the grievance. Santangelo told our investigator that he did so because nothing in the collective bargaining agreement required management to maintain a general purpose bulletin board. Management's answer directed Moerler to make his postings on the union bulletin board; however, Santangelo maintains that the union bulletin board is available only for official notices of the union. Debby Houston, Driver Supervisor for Vons, claimed that the general bulletin was removed because "the company didn't like some of the things drivers posted."
Analysis
Article VII, Section 12(d) of the Rules states the following, in relevant part:
No restrictions shall be placed upon candidates' or members' preexisting rights to solicit support, distribute leaflets or literature ... or engage in similar activities on employer or Union premises. Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis.
The right to post on bulletin boards is determined by past practice. Rodriguez, P348 (February 1, 1996). Where there is no past practice, then absent present discrimination against a candidate there is no Rules violation when access to union or employer bulletin boards is denied. Lambert, P359 (February 26, 1996). Past practice indicates that the glass-enclosed union bulletin board at Vons Grocery is for official union business only. Because Nevarrez and Medina posted or permitted Hoffa campaign literature inside the locked, glass-encased bulletin board while prohibiting or removing literature supporting Leedham, we find discrimination prohibited by the Rules.
Accordingly, we GRANT the protest with respect to the actions of Nevarrez and Medina.
Where past practice establishes that an employee bulletin board is used for general purposes, the employer may not prevent the posting of campaign literature there because the bulletin board may be used for any purpose, including a campaign purpose. Leedham Slate, 2006 ESD 301 (July 5, 2006).
Further, NLRB precedent shows that it is a violation of the National Labor Relations Act to restrict use of a general purpose bulletin board based on content. In Vons Grocery, 320 NLRB 53 (December 18, 1995), the NLRB held, on an unfair labor practice charge filed by Gerald Moerler, that Vons Grocery violated Section 8(a)(1) of the NLRA, which "prohibits employers from interfering with, restraining, or coercing employees in the exercise of rights guaranteed by section 7," by restricting the posting of materials on employee bulletin boards. That decision also acknowledged that, "[i]n 1991, pursuant to a settlement agreement between the Respondent [Vons] and a court-created independent administrator overseeing international union elections that included the Respondent's unit employees, the Respondent agreed to the posting of partisan intra-union campaign notices on its employee bulletin boards. The Respondent initially had refused to permit such postings." Id., at 55.
The employer may not extinguish a pre-existing right to post campaign material on an employee bulletin board by removing the board. We find that Vons removed and did not replace the employee bulletin board from the drivers' room at its El Monte facility because management was displeased with the content of material posted there. Such removal infringed members' preexisting campaign rights under Article VII, Section 12(d) and therefore violated the Rules.
Accordingly, we GRANT the protest with respect to Vons Grocery.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
Accordingly, we impose the following remedy:
1. Jesse Nevarrez and Juan Medina shall cease and desist from posting campaign literature relating to the 2005-2006 IBT International Officer Election on the union bulletin board located at Vons Grocery Company.
2. Local Union 848 shall immediately post the notice attached to this decision on the union bulletin board at the Vons Grocery Company in El Monte, California, and shall maintain the posting for a period of 30 consecutive days from the date of posting.
3. Vons Grocery shall forthwith replace the general purpose bulletin that previously. Vons may not restrict members' campaign rights with respect to the general purpose bulletin board.
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 327
NOTICE TO ALL MEMBERS OF TEAMSTERS LOCAL UNION 848 EMPLOYED AT VONS GROCERY'S EL MONTE FACILITY
The Rules for the 2005-2006 IBT International Union Delegate and International Officer Election ("Rules") prohibit union assistance to and union endorsement of any candidate.
The Rules permit members to post campaign material on employee bulletin boards on employer premises where there is a right to post that pre-exists the campaign.
The Election Supervisor has found that shop stewards Jesse Nevarrez and Juan Medina violated the Rules by posting campaign material promoting a candidate inside the locked union bulletin board in the drivers' room at Vons Grocery's El Monte facility, while denying the same opportunity to supporters of another candidate.
The Election Supervisor further found that Vons Grocery violated members' pre-existing right to post campaign material on the employee bulletin board in the drivers' room by removing and not replacing the bulletin board.
The Election Supervisor will not tolerate such Rules violation.
The Election Supervisor has ordered Nevarrez and Medina to cease and desist from using their positions as shop steward to post campaign material on the union bulletin board in a discriminatory manner.
The Election Supervisor has further ordered Vons Grocery to replace the employee bulletin board in the drivers' room of the El Monte facility.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with Richard W. Mark, Election Supervisor, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006, telephone: 888-IBT-2006, fax: 202-454-1501, email: electionsupervisor@ibtvote.org.
Dated: July 18, 2006
_________________________________________
Richard W. Mark
Election Supervisor
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters. It must remain posted 30 consecutive days and must not be defaced or covered up.
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
Howard Palmer
11219 Daines Drive
Arcadia, CA 91006
Edward Lopez
13512 Palm Avenue
Baldwin Park, CA 91706
Jesse Nevarrez
1112 Arcadia Avenue
Apartment A
Arcadia, CA 91007
Juan Medina
3116 ½ Walnut Grove
Rosemead, CA 91770
Jim Santangelo
Secretary-Treasurer, Local 848
818 Oak Park Road, Suite 200
Covina, CA 91724
Christine M. Mrak, Esq.
2357 Hobart Avenue, SW
Seattle, WA 98116
cmm@wmblaw.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com