IN RE: GERALD MOERLER, Protestor.
Protest Decision 2006 ESD 372
Issued: October 17, 2006
OES Case No. P-06-344-101006-FW
(See also Election Appeals Master decision 06 EAM 77)
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 Hoffa campaigners threatened and intimidated TDU supporters, in violation of the Rules.
Election Supervisor representative Steven R. Newmark investigated this protest.
Findings of Fact
Moerler alleged that Brenda Montoya, a Vons representative, allowed Hoffa supporter Mike Mansfield to use the top half of the employee bulletin board at the Vons El Monte facility, while the bottom half was to be used by Leedham campaigners. Mansfield claimed that the top half of the board was not "awarded" to him by Vons; instead, Leedham supporters took the bottom portion for their flyers since it provided the better eye-level view, and Hoffa supporters took what space was left on the board, which was the top half.
There is no dispute that all parties may access the board during the work hours of 7 a.m. to 4 p.m. However, the employees' board is locked and accessible only with a key held by Vons representatives Montoya and Debi Houston. As such, members who seek to post flyers and literature on the board must ask Montoya or Houston to unlock the glass-encased board.
The protestor stated that the board size is approximately 1½ feet x 2 feet, large enough to display only 4 sheets of paper, and that the center of the board is eye level for a person 6 feet tall.
In addition to the claim concerning bulletin board space, Moerler further alleged that the content of one of Mansfield's postings unfairly threatened and intimidated members by asking them to sign and identify themselves to others. The letter Mansfield posted reads as follows:
An Open Letter To All TDU-Leedham Supporters:
I have no problem with your right to make false accusations and unintelligible opinions about the upcoming IBT elections, but you should at least have the courage and conviction to identify yourself by name so we all can associate the person with their opinions.
By revealing your name, you give more credibility to your statements. Do not hide behind an anonymous posting. Don't be shy. If you feel strongly about your beliefs, don't be embarrassed. It's time for you to quit hiding, come forward, and tell us all just who you are.
Mike Mansfield, Proud Hoffa-Keegel Supporter
Analysis
Article VII, Section 12(d) of the Rules states that "[n]o restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity … Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis." Moerler did not allege that Leedham supporters were not given equal access to the bulletin board; instead, he complained that Hoffa supporters were awarded the top, or superior, half of the board. Moerler admitted to our investigator that the center of the board is eye-level for an average-sized individual; Moerler did not demonstrate that being given an equal size posting on the bulletin board, albeit below the Hoffa flyers, infringed upon his campaign rights. Article VII, Section 12(a) protects all members' rights "to distribute campaign literature," and grants "members of the Union … the reciprocal right to hear or otherwise receive such campaign advocacy." Such rights were granted to Moerler and his allies here.
As to the allegation regarding intimidating speech, the general rule is that the content of a candidate's campaign material may not be regulated under the Rules. See, e.g., Sandford, 2006 ESD (April 3, 2006) and MacWilliam, 2006 ESD 252 (May 18, 2006). However, where campaign speech constitutes a "palpable threat of actual harm," it loses its protected status. Echeveria, 2006 ESD 66 (February 3, 2006). In this case, a request made in campaign literature that the author of opposing literature identify himself or herself falls well short of the "palpable threat of actual harm" necessary to render it impermissible under the Rules.
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 372
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 Hoffa
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48334
david@hoffapllc.com
Barbara Harvey
Penobscot Building, Suite 3060
645 Griswold
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, #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
Mike Mansfield
10831 Modoc Street
Alta Loma, CA 91701-7581
vonssteward@hotmail.com
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
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