IN RE: GERALD MOERLER, Protestor.
Protest Decision 2006 ESD 371
Issued: October 13, 2006
OES Case No. P-06-342-092606-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 a supervisor of Vons Grocery has systematically removed Leedham campaign flyers from employee break rooms while permitting Hoffa flyers to remain, in violation of the Rules.
Election Supervisor representative Steven Newmark investigated this protest.
Findings of Fact
Moerler alleged that Vons' supervisory personnel at the El Monte, California, facility removed Leedham campaign flyers from the "driver's room" on October 5, 2006. The protestor stated that campaigning is allowed in the break area. The protestor claimed that Leedham flyers were regularly removed from the break area while Hoffa flyers were allowed to remain. Specifically, the protestor stated he observed Hoffa flyers in the break room at different times over several days, while Leedham flyers were picked up shortly after he placed them in the breakroom.
Debi Houston, a Vons supervisor, acknowledged that Patsy Bell, another Vons supervisor, regularly cleared all tables in the drivers' room of all paper, including flyers. Houston said the flyers were removed pursuant to the employer's cleanliness policy. She denied that the flyers were removed because of their political content. Houston said that non-work areas such as the drivers' room are audited for cleanliness, and she diligently discards all papers left out at the beginning and end of every shift. She stated that she does not discriminate between campaign material and any other papers. Houston told our investigator that campaigns were permitted to put campaign flyers on the counters in the room. However, Houston stated that the flyers discarded had been left on a table in the break room. Instead of moving the flyers from the table to the counter, Patsy Bell simply discarded them.
Houston claimed that the room in question is not a "break room" because it lacked a television. However, she acknowledged that drivers use the room daily to sit down, drink coffee from the machine located there, and relax while on break. Houston further acknowledged that the El Monte facility does not have another room for drivers to use during their breaks.
We asked witnesses whether they had observed that Hoffa flyers left on the break room table were not discarded at times when Leedham flyers left in that same area were thrown out. We are not able to conclude that the Von's employees gave different treatment to flyers left by each campaign on the break room table. All paper on the table was discarded by Bell without regard to content.
Analysis
Article VII, Section 12(a) of the Rules provides that "[a]ll Union members retain the right to participate in campaign activities … including the right to support or oppose any candidate." The same subsection provides that "campaigning during … paid lunch hours or breaks, or similar time off is not violative of this section." Article VII, Section 12(d) provides that "no restrictions shall be placed upon candidates' or members' preexisting rights to solicit support, [or] distribute leaflets or literature … on employer or Union premises. Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis."
We find that the room in question is used by drivers during breaks as a place to relax, sit down, drink coffee, and generally partake in typical "break room" activities. As such, this was clearly a non-work area, and the Rules protect members' campaign rights in such an area. We find that supervisors Houston and Bell improperly discarded the Leedham flyers placed in the break room, and thereby violated members' campaign rights. Finally, we find no evidence that there was any discrimination of the enforcement of these rules; Vons had a standing policy to remove from the table in the room all papers left at the end of a shift, without regard to content.
Accordingly, we GRANT the protest.
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.
The Election Supervisor orders Vons to cease and desist from removing campaign literature from the driver's room at the El Monte. In addition, we order Vons to post on all union bulletin boards at its El Monte facility the notice attached to this decision, and in the driver's room at issue in this protest. This posting must be completed no later than Tuesday, October 17, 2006, and an affidavit of compliance supplied to our office no later than Thursday, October 18, 2006. The posting must be maintained for a period of 30 consecutive days.
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 371
NOTICE TO ALL MEMBERS OF TEAMSTERS LOCAL
UNION 848 EMPLOYED AT THE EL MONTE, CALIFORNIA FACILITY OF VONS GROCERY FROM IBT ELECTION SUPERVISOR RICHARD W. MARK
The Rules for the 2005-2006 IBT International Union Delegate and International Officer Election ("Rules") permit members to support or oppose any candidate and to distribute campaign publicity. The Rules also guarantee the right of members to hear or receive such campaign publicity.
The Election Supervisor has found that Vons personnel improperly interfered with the campaign rights of members by removing campaign literature from tables in the driver's room at the Vons El Monte facility, in violation of the Rules.
The Election Supervisor will not tolerate such interference.
The Election Supervisor has ordered Vons to cease and desist from interfering with members' rights to distribute or receive campaign publicity.
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 the Election Supervisor. The Election Supervisor can be contacted by mail at 1725 K Street, Suite 1400, Washington, D.C. 20006; by telephone at 888-IBT-2006; by fax at 202-454-1501; and by email at electionsupervisor@ibtvote.org.
__________________________________
Richard W. Mark
IBT Election Supervisor
Dated:
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters. It must remained posted for 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
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
Vons Grocery Corporate Headquarters
618 Michillinda Avenue
Arcadia, CA 91007
David Goodall
Vons Grocery
David.goodall5@safeway.com
Debi Houston
Vons Grocery
Debi.houston@safeway.com
Randy Harris
Vons Grocery
Randy.Harris@safeway.com
Jim Rollins
Vons Grocery
Jim.rollins@safeway.com
Steven R. Newmark
Office of the Election Supervisor
1725 K Street, NW, Suite 1400
Washington, DC 20006
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com