IN RE: GERALD MOERLER, Protestor.
Protest Decision 2006 ESD 364
Issued: October 26, 2006
OES Case No. P-06-339-092606-FW
Gerald Moerler, a member 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 Vons Grocery and/or Local Union 848 improperly delayed Gerald Moerler from posting campaign material, in violation the Rules.
Election Supervisor representative Bill Kane investigated this protest.
Findings of Fact and Analysis
The protest alleged that at approximately 11:00 a.m. on September 23, 2006, Gerald Moerler attempted to post a campaign flyer on the employee bulletin board at the El Monte facility of Vons Grocery. He asked his supervisor for the key to unlock the glass covering the bulletin board. After a brief search, the supervisor reported that the key could not be located. Moerler left the flyer with the supervisor, and the material was posted within 3 days.
Article VII, Section 12(d) of the Rules provides in relevant part: "No restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity."
We find that Moerler had the right under the Rules to post campaign material on the employee bulletin board. See Palmer & Lopez, 2006 ESD 327 (July 18, 2006). We further find that the employer, which maintains control over the locked employee bulletin board, improperly interfered with Moerler's right to post campaign material there by failing to keep the board readily accessible for that purpose.
However, we note that the posting was made within 3 days of Moerler's initial attempt, some 10 days before ballots were to be mailed and approximately 15 days before the first ballots could be expected to arrive at members' homes. Because the posting was made a short time after Moerler sought to do so, we deem this protest RESOLVED. However, we direct Vons Grocery to comply with members' posting rights with in an expedient manner.
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 364
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
Gerald Moerler
21131 E. Calora Street
Covina, CA 91724
Jim Santangelo
Secretary-Treasurer, Local 848
818 Oak Park Road, Suite 200
Covina, CA 91724
David Goodall
Vons Grocery Corporate Headquarters
David.goodall5@safeway.com
Vons Grocery Corporate Headquarters
618 Michillinda Avenue
Arcadia, CA 91007
Michael Four
Schwartz, Steinsapir, et al
6300 Wilshire Blvd.,
Suite 200
Los Angeles, CA 90048
dmg@ssdslaw.com
Bill Kane
242 Old Haymaker Road
Monroeville, PA 15146
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
cmm@wmblaw.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com