IN RE: GARY HOLZER, Protestor.
Protest Decision 2006 ESD 377
Issued: October 24, 2006
OES Case No. P-06-322-082306-FW
(See also Election Appeals Master decision 06 EAM 75)
Gary Holzer, 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 employees at Vons Grocery were given Hoffa campaign material during work hours.
Election Supervisor representative Michael D. Four investigated this protest.
Findings of Fact
Holzer, a long-haul truck driver for Vons Grocery, stated that on Saturday, August 19, 2006, he drove his truck to the Vons warehouse at El Monte, California, where a loader began unloading pallets from his truck. Holzer alleged that the loader suddenly stopped unloading and told Holzer that he had to go attend a meeting. Holzer noticed that many, if not all, of the other workers on the loading dock and in the warehouse also left their workstations. Holzer did not observe any worker clocking out. After about 20 minutes, all of the loaders returned and Holzer noticed that many were carrying Hoffa bumper stickers and literature. When Holzer asked the loader where he went, the loader replied, "a mandatory Union meeting." Holzer did not attend the "meeting" and was unable to supply our investigator with loader's name who had told him of the event.
Warehouse superintendent Roger Cassidy told our investigator that all shipping employees are given a 10 minute break. They do not clock out for the break, but it is their own time, and Local Union 630 shop steward Gary Guillory often speaks with employees about workplace issues at that time. Cassidy confirmed that there was a meeting held on August 19 because he recalled seeing a posted sign announcing the meeting. Cassidy does not believe that the sign indicating that the meeting was mandatory.
Guillory, who also serves as Recording Secretary of the local union, acknowledged that he called a meeting of all union members around August 19, the date Holzer alleged. He said that the meeting was during the regular ten-minute break but that it was not mandatory. According to Guillory, approximately 50 workers attended the meeting. Guillory admitted telling members that Hoffa bumper stickers and flyers were available at the meeting. He told our investigator that he may have handed some of the campaign material out but that people also came up after the meeting to take some with them as they left.
Vons warehouse loader and Local Union 630 member Greg Stowell attended the meeting. According to Stowell, it was a called union meeting, but employees were not required to attend. Stowell stated that most of the session was spent talking about an upcoming arbitration case and answering questions about a new supervisor. Stowell recalled that Guillory reminded members of the upcoming election and said that he had Hoffa bumper stickers available.
Analysis
Article VII, Section 12(b) of the Rules provides the following:
Officers and employees (and other members) of the Union may not campaign on time that is paid for by the Union. Campaigning incidental to regular Union business is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is not violative of this section.
Article XI, Section 1(b)(7) further provides:
No member may campaign for him/herself or for any other candidate during time that is paid for by the Union or by any employer. However, campaigning incidental to work or regular Union business or during paid vacation, paid lunch hours or breaks, or similar time off is not violative of the campaign contribution rules.
Article VII, Section 5(a)(3) and (4) state:
(3) The Local Union need not allot time for campaigning during any of its meetings. However, if campaigning during such meetings is permitted, the Local Union shall notify all candidates for the positions for which such campaigning will be permitted of the opportunity to speak at least five (5) days prior to the meeting and shall divide the time equally between those candidates (or candidates' credentialed representatives) who request an opportunity to speak. The order of appearance shall be determined by lot.
(4) A Local Union shall not discriminate or permit discrimination in favor of or against any candidate in conjunction with its meetings or otherwise. This requirement shall apply not only to formal presentations by or on behalf of candidates but also to informal campaign activities, such as, for example, comments on candidates during meetings, literature distribution at meetings, literature distribution tables, etc.
Union officers, employees, and shop stewards are permitted to campaign on break time, even if the time is paid for by the employer. Carabello, P653 (April 3, 1996). The "incidental" exception does not justify tacking a campaign speech on the end of an otherwise legitimate union speech communicated to an assemblage of members. Ranita, 96 EAM 130 (March 20, 1996).
Here, we find that the session Guillory convened at the Vons warehouse on August 19 constituted a union meeting during which partisan campaigning is regulated. Accordingly, the Rules prohibited him from making partisan remarks and distributing campaign materials unless the local union first complied with the provisions of Article VII, Section 5(a).
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.
We order Local Union 630 and Gary Guillory to cease and desist from campaigning during union meetings unless all candidates are given advance written notice of the right to campaign during such meetings, as required by Article VII, Section 5(a)(3) of the Rules.
In addition, we order Local Union 630 to post on all union bulletin boards at all Vons Grocery facilities under its jurisdiction the notice attached to this decision. This posting must be completed no later than Thursday, October 26, 2006, and an affidavit of compliance supplied to our office no later than Monday, October 30, 2006. The posting must be maintained for a period of 30 consecutive days.
Finally, to provide a remedy the improper advantage that Local Union 630 steward Guillory gave to the Hoffa slate by campaigning for the slate during a union meeting at the El Monte facility, we order Local Union 630 to pay the full cost of duplicating and mailing to the full membership of Local Union 630 employed at the El Monte facility of Vons Grocery a one-page, two-sided campaign flyer to be supplied by the Leedham campaign. Such flyer shall be mailed no later than Friday, October 27, 2006 by first-class mail. The local union shall supply its membership list for the members at this facility, current as of the date it supplies it, to the mail house selected by the Leedham campaign in a form (label or electronic) designated by the Leedham campaign. The local union shall tender payment of the costs identified in this paragraph within 2 working days of receipt of documentation showing duplication and mailing costs. The Leedham campaign shall be permitted reimbursement for the costs of printing (including plate-making, 4 colors maximum), ink, paper and envelope stock, folding, stuffing, and postage. The Leedham campaign shall be responsible for the art and typesetting costs associated with the flyer. We order this remedy pursuant to Article XIII, Section 4(h) of the Rules, which authorized the Election Supervisor to "requir[e] the Union to mail or otherwise distribute, at its own expense, candidate campaign materials," and Section 4(m), under which the Election Supervisor may "require[e] the Union to provide candidate(s) with specific goods or services." We hold Local Union 630 responsible for Guillory's action because of his status as a shop steward and recording secretary of the local union. In that capacity, Guillory was the ranking union official at the facility and had a special responsibility to insure that his actions complied with the Rules.
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 377
NOTICE TO ALL MEMBERS OF TEAMSTERS LOCAL UNION 630 EMPLOYED BY VONS GROCERY FROM IBT ELECTION SUPERVISOR RICHARD W. MARK
The Rules for the 2005-2006 IBT International Union Delegate and International Officer Election ("Rules") prohibit campaigning at Union meetings unless advance written notice is provided to all candidates of the opportunity to campaign.
The Election Supervisor has found that Local Union 630 shop steward and Recording Secretary Gary Guillory campaigned during a union meeting held at Vons Grocery at the El Monte facility, in violation of the Rules.
The Election Supervisor will not tolerate such employer interference.
The Election Supervisor has ordered Local Union 630 and Guillory to cease and desist from such improper campaign activity. The Election Supervisor has also ordered Local Union 630 to pay the cost of a campaign mailing to all members of Local Union 630 employed at the El Monte facility of Vons Grocery.
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, Suite 1400, Washington, D.C. 20006, telephone: 888-IBT-2006, fax: 202-454-1501, email: 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
Gary Holzer
1155 N. Campus Ave.
Ontario, CA 91764
Paul Kenny, Secretary-Treasurer
IBT Local Union 630
750 S. Stanford Avenue
Los Angeles, CA 90021
paul@teamsters630.org
Gary Guillory
3150 Culver Lane
Ontario, CA 91761
David Goodall
Vons Grocery Corporate Headquarters
David.goodall5@safeway.com
Vons Grocery Corporate Headquarters
618 Michillinda Avenue
Arcadia, CA 91007
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