IN RE: JOHN HAILSTONE and
SAM MARTINEZ, Protestors,
Protest Decision 2010 ESD 24
Issued: September 4, 2010
OES Case Nos. P-027-083110-FW
& P-028-032110-FW

John Hailstone, member of Local Union 948 filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that The Members Slate, Working for You violated the Rules by posting campaign literature on union and employer bulletin boards and on the windows and doors of the local union office, and by distributing literature in work areas.

Sam Martinez, member of Local Union 948 and lead delegate candidate on The Members Slate, Working for You, filed a pre-election protest against the Juarez/Alfaro slate, and two employers, Seneca Foods and Del Monte Foods. The protest alleged that the employers assisted the Juarez/Alfaro slate either by distributing its campaign literature for it or by prohibiting a supporter of Martinez's slate from distributing literature in the employer's lunchroom during the lunch period.

These protests were consolidated for investigation and decision. Election Supervisor representatives Christine Mrak, Rochelle Goffe and Michael Miller investigated the protests.

Findings of Fact and Analysis

The Hailstone protest alleged first that Maria Valdovinos, a Martinez slate supporter, posted Martinez slate campaign literature on the employer or union bulletin board at Seneca Foods. Valdovinos denied to our investigator that she had done so. Guadalupe Barajas told our investigator that she observed a woman who she did not know post Martinez literature on the employer board at Seneca on Wednesday, August 25. The woman spoke to Barajas in Spanish and suggested she support the Martinez slate. At a later time, Barajas saw the same woman in the Seneca lunchroom distributing Martinez slate literature. Barajas said that the woman on that occasion wore a hat that read "Maria" and she believed the woman was called "Cuca" as a nickname. Valdovinos uses that nickname. We credit Barajas and find that Valdovinos posted the Martinez literature on the employer bulletin board on August 25.

Investigation further showed that the bulletin board is reserved exclusively for company use. Tom Nett, the employer's Human Resources director, told our investigator that the employer uses the board to post schedules and that employees check the board often to learn when they are to report for work. Rarely, unauthorized material is posted on the board. Nett said that he and his supervisors police the board and remove any unauthorized material. Personal material, such as items for sale or services for hire, is not authorized for posting on the employer board, nor is campaign literature. The Martinez campaign literature was removed.

Article VII, Section 12(d) states that "[n]o restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity." Under this provision, past practice governs use of an employer bulletin board. Cooper, 2005 ESD 8 (September 2, 2005). Where there is no past practice of using the board as a general purpose board, there is no right to post campaign literature there. Lambert, P359 (February 26, 1996); Bolen, 2006 ESD 73 (February 7, 2006); Deaver, 2006 ESD 74 (February 7, 2006). Here, we find no preexisting right to use the employer bulletin board to post campaign literature. Accordingly, we GRANT this aspect of the Hailstone protest. In doing so, we note that the impact of the violation was diminished substantially by the prompt removal of the flyer from the board.

The Hailstone protest next alleged that Mike Sandoval, a Martinez slate supporter, distributed campaign literature on work time in work areas. Sandoval denied the allegation. Hailstone was unable to produce a witness to support the allegation. Protests without evidence will be denied. Gegare, 2010 ESD 10 (July 27, 2010). Accordingly, we DENY this aspect of the protest.

The final allegation of the Hailstone protest was that Martinez slate literature was posted on the exterior of windows and doors of Local Union 948's hall in Kingsburg on Sunday, August 29. When discovered, these flyers were removed.

The Rules prohibit posting of campaign flyers on union property. Article VII, Section 12(a) protects the right of members "to support or oppose any candidate" of their choice. It also protects the right of members not to be involved in union politics if that is their decision. Use of the local hall or other union-owned fixtures to display one side's campaign materials interferes with the Section 12(a) rights of all members of that local union who disagree or wish to remain uninvolved. Use of the hall for a campaign display also violates the provision of Article VII, Section 12(c) barring use of "Union ... facilities ... to assist in campaigning ..." Further, display of the flyers on local property violates Article XI, Section 1(a)(3), which prohibits a candidate from receiving campaign assistance from a union. Black, 2001 EAD 338 (May 1, 2001). Accordingly, we GRANT this aspect of the Hailstone protest. As with the improper posting on the employer bulletin board, we note that the impact of the violation was diminished substantially by the prompt removal of the flyers.

The Martinez protest alleged that Seneca Foods supervisor Laura Ramirez distribute Juarez/Alfaro campaign literature to about 25 employees when she passed out paychecks to them on August 26. The employer admitted the allegation. The employer responded by discharging Ramirez from employment.

Article XI, Section 1(b) prohibits employer contributions to a candidate. Distribution of campaign literature to employees provides a service to a candidate and signals the employer's support for that candidate. Ramirez's action violated the Rules. Accordingly, we GRANT this aspect of the Martinez protest. In doing so, we note that the prompt action of the employer in discharging Ramirez sent a strong message to the workforce that her conduct was not acceptable and did much to undo the appearance of employer support for the Juarez/Alfaro slate.

The Martinez protest alleged that Seneca HR manager Annette Reclusado instructed Maria Valdovinos that she could not distribute campaign literature in the lunchroom on break time. Reclusado told our investigator that she had learned from one of her clerks that Valdovinos was distributing literature in work areas on work time. She phoned Valdovinos to tell her of the allegation; Valdovinos denied doing so and said she knew better than to engage in such conduct. Protestor Martinez presented no evidence that Valdovinos was barred from campaigning in the lunchroom on break time. Accordingly, we DENY this aspect of 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 the Martinez slate to cease and desist from posting campaign material on the employer or union bulletin board at Seneca Foods or on local union property.

We direct Seneca Foods to instruct its supervisors not to participate in any campaign activity in support of or opposition to any candidate in the delegates and alternate delegates election. We also direct Seneca Foods to post the attached notice on its bulletin board and maintain the posting there through September 20, 2010.

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
Suite 1000
885 Third Avenue
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, 1801 K Street, N.W., Suite421 L, Washington, D.C. 20006, 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
        2010ESD 24

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington,D.C. 20001
braymond@teamster.org

David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington D.C. 20036
hoffadav@hotmail.com

Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org

Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net

Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
Fgegare663@new.rr.com

Scott D. Soldon
Previant Goldberg
155 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com

Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com

Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com

John Hailstone
Teamsters Local Union 948
1222 "I" Street
Modesto, CA 95354
teamsters948@yahoo.com

Sam Martinez
5161 Wilkins Avenue
Oakdale, CA 95361
Ladybugtm2003@yahoo.com

Lupe Juarez, Secretary-Treasurer
Teamsters Local Union 948
1222 "I" Street
Modesto, CA 95354
teamsters948@yahoo.com

Tom Nett, Human Resources Director
Seneca Foods
tnett@senecafoods.com

Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com

Rochelle Goffe
1234 22^nd Avenue,
Seattle, WA 98112
rochellegoffe@gmail.com

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com

OFFICE OF THE ELECTION SUPERVISOR
for the INTERNATIONAL BROTHERHOOD OF TEAMSTERS
1801 K STREET, N.W., SUITE 421 L
WASHINGTON, D.C. 20006
202-429-8683
877-317-2011 TOLL FREE
202-429-6809 FACSIMILE
electionsupervisor@ibtvote.org
www.ibtvote.org

Richard W. Mark
Election Supervisor

August 27, 2010

TO: All members of Teamsters Local Union 948 employed at Seneca Foods

FROM: Richard W. Mark,Election Supervisor

The Election Supervisor has determined that Seneca Foods supervisor Laura Ramirez impermissibly distributed campaign literature for the Juarez./Alfaro slate in the delegates and alternate delegates election.

The Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules") prohibit employers and their supervisors from helping or aiding the campaign of any candidate. Ramirez's activity violated the Rules because an employer cannot take sides in any union election.

The Election Supervisor will not tolerate violation of the Rules. The Election Supervisor has directed Seneca Foods to instruct its supervisors not to participate in any campaign activity in support of or opposition to any candidate in the delegates and alternate delegates election. Seneca Foods has also been directed to post this notice on its bulletin boards at the worksite where members of this local union work.

This decision has been made in Hailstone & Martinez, 2010 ESD 24 (September 14, 2010). You may read it at http://www.ibtvote.org/protests/2010/2010esd024.htm.

Any protest you have regarding your rights under the Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, 1801 K Street, N.W., Suite 421L, Washington, D.C. 20006, telephone: 877-317-2011, fax: 202-429-6809, email: electionsupervisor@ibtvote.org.

This is an official notice of the Election Supervisor and must remain posted on this bulletin board until September 20, 2010.