IN RE: GERALD MOERLER, Protestor.
Protest Decision 2006 ESD 343
Issued: August 25, 2006
OES Case Nos P-06-318-081606-FW and P-06-319-081706-FW
Gerald Moerler, a member of Local Union 848, filed 2 pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). In Case No. P-06-318-081305-FW, he asserted "a threat was made against me on August 14, 2006" for filing an election protest on August 9, 2006. In Case No. P-06-319-081706-FW, he asserted that on August 16, 2006, an unidentified member was threatened and assaulted by Gary Guillory, a Local Union 630 shop steward and Recording Secretary. Moerler alleged that the threat and assault was motivated by the filing of protests in Case Nos. P-06-313-080306-FW and P-06-316-081006-FW. We consolidated those protests for investigation and granted them in Moerler, 2006 ESD 342 (August 25, 2006).
We consolidated the instant protests for investigation, which Election Supervisor representative Dolly Gee investigated.
Findings of Fact
Protestor Gerald Moerler and witnesses Bob Wells and Gary Guillory are all members of Local Union 630 and employees at Vons Grocery warehouse facility in El Monte, California. Guillory is a Local Union 630 shop steward at Vons and the local union's elected Recording Secretary. Moerler filed previous protests alleging violation of members' campaign rights at Vons and improper use of the official union bulletin boards there to support Hoffa 2006. Moerler provided our investigator with photos of the official union bulletin boards of Local Unions 630 and 848 at that facility that displayed Hoffa 2006 campaign material.
Moerler did not witness the threat alleged in Case No. P-318. Our investigator interviewed Wells, who heard the alleged threat, and Guillory, who allegedly made the threat.
Wells stated the following to our investigator. On August 14, 2006 at approximately 8:00 a.m., Guillory approached him and asked, "Did you take the pictures of my bulletin board?" Wells denied taking the pictures. Guillory then asked if Wells knew who took the pictures. Wells denied any knowledge regarding the pictures. Guillory responded, "I'm telling you straight up, if I find out it's you, I'm going to make you pay." Wells again denied taking the pictures. Guillory ended the conversation by stating, "But if I find out who did, they're going to pay."
Later on August 14, Wells found a copy of Moerler's protest about the bulletin boards. He showed the protest to Guillory, told Guillory that Moerler had taken the pictures, and that Moerler wanted to speak to Guillory. Guillory's response was, "I ain't talking to that piece of shit."
Wells then told Guillory that he also had seen the Hoffa campaign material on the bulletin board and thought it was improper, but had not done anything about it. Guillory told Wells that he wished Wells had come to him because he would have taken the campaign material down.
Guillory denied to our investigator that he threatened Wells. He said that he simply asked Wells whether he had taken the pictures of the bulletin board and that if he had come to him and told him about the campaign postings, he would have taken them down. We note that in our investigation of two other protests arising from conduct at the Vons Grocery facility in El Monte (P-06-313-080306-FW and P-06-316-080306-FW), Guillory stated to our investigator that he had the only key to the local union bulletin board.
On August 15, 2006, at 7:33 a.m., Moerler filed by fax the protest in Case No. P-318 alleging that the Guillory threat of "But if I find out who did, they're going to pay" was directed against him, the person who had photographed the bulletin board and filed the protest complaining that union bulletin boards were displaying Hoffa 2006 campaign material. Moerler forwarded a copy of the protest to his local union. On August 15, at 8:57 p.m., Michael Mansfield, a Local Union 848 member and Vons employee, responded by fax to statements made about him by Moerler in that morning's protest. The statements to which Mansfield responded are not related to the resolution of this protest, except that they show that Moerler's protest was shared with other Vons employees before the second incident at issue here, which occurred the next morning, August 16, 2006.
Moerler did not witness the threat alleged to have occurred on the morning of August 16, 2006 and which is the subject of the protest in Case No. P-319. Wells told our investigator that around 8:30 a.m. that day, Guillory approached him on the warehouse dock where Wells was sitting in a company truck. Guillory said, "Come out, I want to talk to you." Wells refused and replied, "Talk to me right here." Guillory again asked him to get out of the truck and Wells again refused. Guillory then said, "Bob, get out of your tractor now. I want to talk to you." Wells refused for a third time, telling him that he had nothing to talk to him about and that he already told him who took the pictures off his bulletin board. Wells then said, "Leave me alone." Guillory replied, "Fine, don't ever talk to me again. And if you won't get out, I will get you outside of here and f-ck you up!"
Wells was frightened. He immediately filed a report with Vons management and an incident report with the El Monte police department.
Guillory denied that this incident occurred. He stated that he would not risk his job over something like this.
Analysis
Article VII, Section 12(g) of the Rules prohibit "retaliation or threat of retaliation by … any member of the IBT … against a Union member … for exercising any right guaranteed by" the Rules. Article XII, Section 1, states, "Any member … may file a protest with the Election Supervisor alleging noncompliance with these Rules, or appeal to the Election Appeals Master from any decision of the Election Supervisor concerning a protest, free from any direct or indirect retaliation or threat of retaliation by any Union officer, member, … or by any other person or entity for such filing.'
Any form of retaliation is a violation of the Rules. Bond, P83 (June 30, 1995) (illegal to interrogate protestor about his role in the protest at work-site); Puglise, P1074 (November 25, 1991), aff'd, 91 EAM 242 (January 23, 1992), aff'd, 88 Civ. 4486, slip op. (S.D.N.Y. 1992) ("[T]he right of IBT members to file, free from retaliation, election protests, even protests which are found to be non-meritorious, goes to the heart of the safeguards mandated by the Rules and the Consent Order.").
Proving a retaliation case requires three elements: 1) activity protected under the Rules; 2) the charged party having actual or constructive knowledge of that protected activity; and 3) a showing that the protected activity was a motivating factor in the decision or the conduct at issue.
In this case, we find Wells' description of his conversation with Guillory to be credible. We find that Wells genuinely felt threatened and was nervous about what Guillory might do to him. We find that this reaction motivated him to report Guillory's conduct to Vons management and the police. We do not credit Guillory's denial of the threats.
We find that the August 14 threats made by Guillory against Wells and subsequently against whomever took the pictures of the bulletin board, were motivated by the earlier protest involving the union bulletin boards supported by the pictures of Hoffa 2006 campaign material on union boards. Based on the fact that other Vons employees knew of the protest filed by Moerler alleging threats made on August 14 by a shop steward at Vons, we find that Guillory's threats against Wells on August 16 were motivated by the filing the protest filed the previous day. We do not credit Guillory's statement that he would have removed the campaign postings had Wells or another member made mention of them. Guillory had the only key that opened this locked bulletin board, and we find that he either knew the campaign material was posted behind the locked glass, or was responsible for the posting.
Pursuant to Article I of the Rules, "[t]he Election Supervisor has the authority to take all necessary actions, consistent with these Rules, to ensure fair, honest, open and informed elections." Permitting Guillory's actions to go uncorrected risks a chilling effect on the freedom of members to file protests and engage in other election-related activity that promote the democratic goals of the Rules.
Accordingly, we GRANT the protests.
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.
We order the following relief:
1. Gary Guillory shall cease and desist from any further retaliation, threat of retaliation, violence and threat of violence against any member of the IBT.
2. Gary Guillory shall pay a fine of $250 to the Office of the Election Supervisor within 2 working days of receipt of this decision. Guillory shall pay the fine solely from personal funds. When paying the fine, Guillory shall submit an affidavit stating that the fine is paid solely from personal funds, that no other person, IBT member, candidate, slate, or campaign has transferred or contributed any funds to him for the purpose of paying all or part of the fine, and that Lopez will refuse any such offer, transfer, or contribution. This is a strictly remedial provision intended to deter election-related threats of violence.
3. Local Union 630 shall post on all union bulletin boards under its jurisdiction the notice attached to this decision and shall be responsible for maintaining such posting through November 30, 2006.
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 343
NOTICE TO ALL MEMBERS OF IBT LOCAL UNION 630
FROM RICHARD W. MARK
The Rules for the 2005-2006 IBT International Union Delegate and International Officer Election ("Rules") protect the right of each member "to participate in campaign activities, including the right to run for office, to support or oppose any candidate, [and] to aid or campaign for any candidate." The Rules further prohibit retaliation or threat of retaliation by the Union against a Union member for exercising any right guaranteed by the Rules is prohibited.
The Election Supervisor has found that Gary Guillory retaliated against Bob Wells, an IBT member, by threatening him and others on August 14 and 16, 2006 in the El Monte facility of Vons Grocery for objecting to the improper use of a union bulletin board to support a candidate for International office.
The Election Supervisor will not tolerate such retaliation or threats.
The Election Supervisor has ordered Guillory to cease and desist from any further theats or retaliation against any member for their exercise of rights protected by the Rules. The Election Supervisor has further ordered Guillory to pay a fine of $250.00 from personal funds.
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.
_________________________________________
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 through November 30, 2006 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, 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
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Gerald Moerler
21131 E. Calora Street
Covina, CA 91724
Gary Guillory
3150 Culver Lane
Ontario, CA 91761
Paul Kenny, Secretary-Treasurer
IBT Local Union 630
750 S. Stanford Avenue
Los Angeles, CA 90021
paul@teamsters630.org
Dolly Gee
Schwartz, Steinsapir, et al.
6300 Wilshire Blvd., Suite 200
Los Angeles, CA 90048
dmg@ssdslaw.com
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
cmm@wmblaw.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com