Protest Decisions

IN RE: BURL HAMMONS, Protestor,
Protest Decision 2010 ESD 35
Issued: October 12, 2010
OES Case No. P-036-100510-FW

Burl Hammons, member, business agent, and alternate delegate candidate from Local Union 601, timely 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 Lucio Reyes, delegate candidate and principal officer of Local Union 601, campaigned on union-paid time in violation of the Rules.

Election Supervisor representative Michael J. Miller investigated this protest.

Findings of Fact

Protestor Hammons is a candidate for alternate delegate on the No Mas Lucio slate headed by Maria Ashley Alvarado. Reyes heads a slate of delegate and alternate delegate candidates called the We Don't Make Promises, We Deliver slate (hereinafter, the Reyes slate). Hammons filed the instant protest at Alvarado's direction. The protest, submitted on Local Union 601 letterhead, stated the following:

I'm filing this complaint against S.T. Lucio Reyes for campaigning while on Union time. Yesterday, Oct. 4, 2010 in the a.m., while in Reno to attend the Cannery Council Workshop, he was calling 601 members. I know this because he called me and had me call a member concerning a grievance. He also called Business Agent Rosa Carillo in this office and had her call 2 members.

The member he had me call is: Manuel Vallejo, [phone numbers redacted]

We, the "No Mas Lucio" Slate, feel that Mr. Reyes is campaigning on Union time and using a seniority list that is not available to us. Please take the appropriate actions to stop this illegal activity.

Please confirm receipt of this fax.

Thank you.

/s/ Burl Hammons
Business Agent
Member of "No Mas Lucio" Slate

Hammons told our investigator that he did not attend the Reno workshop and so did not see Reyes phone-banking. He said that he "knew" Reyes was phone-banking because Reyes called him on Monday morning, October 4, said he had just spoken with Manuel Vallejo about a grievance pending for Vallejo, and asked Hammons to call Vallejo about details of a pre-arbitration meeting Hammons was handling for Vallejo. Hammons also said that Reyes had called Rosa Carillo, another business agent in the Yuba City office, and asked her to call 2 other members about pending grievances. Hammons said that, because Reyes had just spoken with each of these members, Hammons assumed Reyes was phone-banking in order to solicit support for his campaign. Hammons said he had heard that Reyes had phone-banked 3 years ago in another election, using local union seniority lists. When Hammons reported his conjecture to Alvarado, she directed him to file a protest. Hammons conceded to our investigator that Reyes' call to him asking him to contact Vallejo was legitimate, necessary union business.

Reyes denied phone-banking, whether on union-paid time or off. He further denied using local union seniority lists to campaign. He told our investigator that, on any given day, he receives multiple calls from members asking for his help or direction, usually on pending grievances or matters of contract interpretation or collective bargaining. He said he currently has some 18 grievances pending for members he personally represents and also supervises the many other grievances that his business agents handle. One such member, Vallejo, called the local union and left a message for him on Monday, October 4, concerning a pending grievance. Reyes retrieved the message and returned the call from Reno, where he was attending a union workshop, spoke with Vallejo about the grievance, and told him that Hammons would contact him with additional details about a pre-arbitration meeting. Reyes then called Hammons and asked him to contact Vallejo. When speaking with Vallejo, Reyes said he did not mention the upcoming election or solicit Vallejo's support in any way.

Vallejo told our investigator that he phoned Reyes at the local union office on Monday morning, October 4, and left a message asking Reyes to call him back to answer some questions about the progress of his grievance. Vallejo said he called Reyes because the pre-arbitration meeting was approaching, and he wanted to get Reyes' assistance and advice in this important step because he knew Reyes to be an effective advocate. Vallejo said that Reyes returned the call shortly thereafter and discussed the grievance with him. According to Vallejo, Reyes said he would have Hammons contact him, as Hammons was the business agent assigned to the case. Vallejo said that Reyes did not mention the election, his candidacy or his record, or solicit Vallejo's support in any way during this or any other call.

Our investigator interviewed Rosa Carillo, as she was also identified in the protest. Carillo stated that Reyes called her on October 4 and asked her to contact 2 members whom he said had contacted him with questions about their grievances. Since Carillo represented both members, she said it was appropriate for Reyes to have her call them and answer their questions and address their concerns. As requested by Reyes, Carillo contacted the members, both of whom had pending grievances. Carillo said Reyes' call to her was about legitimate union business, not unlike any call she would have from him on any given day. Reyes did not mention the election or ask Carillo to solicit support for him during her calls with the members.

As Alvarado directed Hammons to file the protest, our investigator interviewed Alvarado as well. She insisted to our investigator that Reyes was using union seniority lists to phone-bank in the current delegates and alternate delegates election. Alvarado conceded that she had no first hand knowledge that Reyes was phone-banking. She stated that 3 years ago, Reyes had given seniority lists to her and directed her to use them to conduct a phone-bank. Alvarado admitted that she had no evidence at all that Reyes committed a current Rules violation, but stated that she intended with this protest to send the message to Reyes that "he was being watched."

When pressed by our investigator, Alvarado identified 2 members whom she said Reyes had called on union time to solicit their support for his candidacy. These members were Richard Castellano and Jacqueline Jimenez. Alvarado said she knew of no other instances of Reyes' alleged phone-banking, other than what Hammons had reported to her about Vallejo. Alvarado also alleged that Reyes had directed business agents to obtain updated seniority lists for members and then had used them to phone-bank.

Castellanos denied to our investigator that he had received any phone calls from Reyes or anyone else on his slate during which the election was mentioned or his support for Reyes or his slate was solicited. Jimenez told our investigator that she called Reyes about 2 months ago to ask his help with a problem that her employer was not paying her properly. She said that Reyes was very helpful and that the call was confined to the effective processing of her grievance. She said there was no discussion of the election or Reyes' record, nor did he solicit her support for his candidacy. She said she has had no contact with Reyes since that call. In sum, each of the witnesses Alvarado identified - Vallejo, Castellanos and Jimenez - directly contradicted her allegation that Reyes asked by phone for their campaign support.

With respect to updated seniority lists, Local Union 601 officer manager Patty Schock told our investigator that efforts are routinely made to update the membership list with current contact information for members. Formal requests for seniority lists are made each January, but business agents and stewards seek and obtain updated lists throughout the year, especially among the agricultural seasonal employers where employment peaks in late summer and early fall. The information on these lists is used to update membership information in the TITAN database. Schock denied that any special effort had been made recently to obtain updated seniority lists. She further denied that Reyes had used membership information to campaign, except for the campaign literature mailing his slate conducted as documented in Alvarado et al, 2010 ESD 33 (October 5, 2010). No other business agent, Alvarado included, presented any evidence that Reyes had made a special request for updated seniority lists or had used the lists to phone-bank or otherwise campaign.

Finally, Hammons told our investigator that he typed the protest on union letterhead on the evening of October 4 and faxed it to our offices the next morning during work hours using the union's fax machine. He acknowledged to our investigator that a slate's election activity should be exclusive of union time and resources and apologized for his "oversight."

Analysis

This protest alleged that Reyes phone-banked on union-paid time using union-supplied seniority lists. Proof of such an allegation would constitute a violation of Article VII, Sections 12(b) and (c), among others, which prohibit campaigning on union-paid time using union assets.

The investigation found no evidence at all to support the allegations. What is more, protestor Hammons made these charges knowing he had no evidence to substantiate them: he had no evidence that Reyes called members to campaign, whether on union-paid time or off; he had no evidence that Reyes had conducted a phone bank on union time, or used seniority lists to support such activity; and he did not have any evidence that Reyes even possessed union-supplied seniority lists.

Our investigation found evidence contradicting the protest allegations regarding the content and purpose of Reyes' calls to business agents and members. Reyes stated that he returned phone calls of members who had called him about union business and did not campaign during those calls. The members and business agents corroborated Reyes. Carillo said that Reyes' requests that she call members about pending grievances was routine and did not include campaign activity; Vallejo, Castellanos and Jimenez stated affirmatively that Reyes did not solicit campaign support during his phone calls with them; and office manager Schock stated that seniority lists were not being specially updated now and were not used for campaign purposes. The protestor, Hammons, conceded that Reyes' call to him concerned union business. Based on the absence of evidence proving a Rules violation and the substantial evidence disproving a violation, we DENY the protest.

This protest requires comment on the use of the protest process by protestor Hammons and his slate leader, Alvarado. In Aloise et al, 2010 ESD 22 (August 27, 2010), aff'd, 10 EAM 6 (September 3, 2010), Hammons, Alvarado and several other witnesses presented substantial evidence and documentation to establish that Reyes had used union resources to campaign over a significant period of time. Reyes was directed to cease and desist from such activity, to post a notice, and to pay 90% of the expenses of a campaign mailing by the Hoffa-Hall 2011 campaign. The lengthy investigation that resulted in that detailed decision informed Hammons and Alvarado of the proof necessary to establish a Rules violation. Since that time, however, Alvarado has filed several protests where there was either no evidence to support the protest allegation or where the witnesses to whom Alvarado referred our investigators directly contradicted the allegation. See Alvarado, 2010 ESD 28 (September 21, 2010) (evidence contradicted protest allegation that a member forcibly and violently removed a campaign sticker from another member's bump hat; no evidence was presented to support the allegation that a partisan had enlisted management to enforce a "no sticker" rule in the workplace); and Alvarado, 2010 ESD 33 (October 5, 2010) (protestor Alvarado made allegations about the processing of a Reyes campaign mailing that she either had no evidence to substantiate or she knew were false).

In the instant case, the only evidence Hammons offered to support his protest was that Reyes "was calling 601 members. I know this because he called me and had me call a member concerning a grievance. He also called Business Agent Rosa Carillo in this office and had her call 2 members." These statements were not evidence of a Rules violation. Responding to union members' concerns and requests is an element of the union's duty to represent its members. Hammons is well aware of this duty because he, as a local union business agent, routinely fields and responds to calls from members about pending grievances and issues of contract interpretation and collective bargaining. In particular, he knew that the member Reyes asked him to call, Vallejo, had questions about a grievance Hammons was processing for him. Hammons had no basis to assert that Reyes' conduct violated the Rules.

If Hammons intended to assert that any contact a local union official has with a member on union-paid time constitutes campaigning and therefore violates the Rules where that official is a candidate in a pending election, that position is not correct.[1] This view is not a valid reading of the Rules. It has repeatedly been held under Article VII, Section 8, prohibiting use of union publications to campaign, that "elected local officers should not, and cannot, be constrained by the Rules from discharging their responsibilities to the membership in reporting on matters of vital interest, as long as the reportage is politically neutral." Hicks, 06 EAM 22 (March 15, 2006), affirming 2006 ESD 110 (March 2, 2006); see also, Bucalo, 2006 ESD 171 (April 6, 2006), and Halstead, 2000 EAD 6 (August 1, 2000). So too union officials cannot be prevented by the Rules from discharging their responsibilities to the membership to represent them and respond to their questions and concerns, as long as such discharge does not include overt campaign activity. Hammons spoke with Vallejo immediately after Reyes' call and did not obtain any information from Vallejo that campaigning had occurred during Vallejo's call with Reyes. From that, he had no basis to assert that Reyes' calls involved campaign activity. For the same reason, Hammons had no basis to assert that Reyes' request to Carillo that she call 2 members constituted campaigning.

This is not a case where Hammons had direct knowledge of a Rules violation. Likewise, he did not have a witness's account or documentary evidence of a Rules violation. Instead, he had only his conjecture, not accompanied by logic, that Reyes' action in returning members' calls constituted campaign activity. Filing a protest with no evidentiary support is irresponsible.

Both Hammons and Alvarado told our investigator that Hammons filed the protest at Alvarado's direction. Alvarado admitted to our investigator that she told Hammons to file the protest because she wanted to relay the message to Reyes that "he was being watched." This is an abuse of the protest procedure, which is in place to insure compliance with the Rules so that elections conducted under them will be fair. Invoking the procedure to harass an opponent does nothing to promote fair elections and causes the needless expenditure of limited, dues-funded, investigative resources.

In Reyes, 2010 ESD 18 (August 5, 2010), we cautioned Reyes "to exercise judgment when filing a protest." Reyes had filed a number of meritless protests, which "suggest[ed] an intention to use the Rules' protest procedures to harass and retaliate against Reyes' opposition, although we decline to make such a finding at present." In the present case, we find, on Alvarado's admission, that her direction to Hammons to file the protest indeed was intended to harass and retaliate against Reyes. We direct Alvarado and all members of her slate to cease and desist from such activity. In the future, we caution Alvarado and all members of her slate to exercise judgment when filing a protest, insuring that the conduct alleged states a violation of the Rules and that evidence supports the allegation. Should this advice not be heeded, we will implement appropriate remedies.

Finally, we address Hammons' use of union resources to file the instant protest. He used local union letterhead and local union equipment to prepare the protest and transmit it to our office. It has often been held that filing a protest "is protected, and does not constitute support for a candidate or campaigning under the Rules." Randolph, 2000 EAD 28 (September 27, 2000) (use of union fax machine to file a protest no violation); Keiffer, P360 (March 19, 1996) (same).

This protection is not without limitation. Whether the filing and subsequent processing of a protest constitutes an improper use of union funds depends on whether the protest furthers the independent, institutional interest of the union. Jenne, 2000 EAD 64 (December 14, 2000); Koch, 2006 ESD 169 (April 3, 2006) (protest researched and prepared on union-paid time and filed on union stationery is permissible where it sought to enforce Rules provision limiting ballot access to eligible candidates). Local unions can expend their resources to pursue a protest filed to ensure proper implementation of the Rules as long as they do not take a partisan position or engage in advocacy on behalf of particular candidates. Id. When these criteria are met, a local union may use its funds to file and pursue such a protest. It may do so by paying for time spent by its officers in handling such protests and by hiring legal counsel. Local unions cannot, however, use their funds to finance protest activity that advances or damages a candidacy without implicating the institutional interest of the union. We apply a tolerant standard for differentiating between proper and improper expenditures in this context.

In the present case, Hammons printed his protest on local union letterhead. The text of the protest made clear, however, that Hammons was not acting as a representative of the local union, seeking to advance the union's institutional interest in preventing and remedying improper use of union recourses by Reyes. Instead, Hammons was filing the protest as a partisan. Two facts bring this point home. First, Hammons stated so expressly in the body of the protest when he wrote that "[w]e, the 'No Mas Lucio' Slate, feel that Mr. Reyes is campaigning on Union time and using a seniority list that is not available to us," and he signed the protest as a "Member of 'No Mas Lucio' Slate." Second, he filed the protest at Alvarado's direction under circumstances where he knew he had no evidence to substantiate it and she was motivated to send a message to Reyes that "he was being watched." A union has no institutional interest in filing a protest known to be baseless that is intended to harass the protestor's political opponent. For this reason, we find that Hammons' use of local union letterhead to file the protest violated the Rules, and he is directed to cease and desist from using union resources to make such partisan filings. Should this advice not be heeded, further remedies will be imposed.

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, 1801 K Street, N.W., Suite 421 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
        2010 ESD 35

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
kirchmanb@yahoo.com

Scott D. Soldon
Previant Goldberg
1555 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

Lucio Reyes, Secretary-Treasurer
Teamsters Local Union 601
745 E. Miner Ave.
Stockton, CA 95202
lreyes601@sbcglobal.net

Burl Hammons
Teamsters Local Union 601
326 B Street
Yuba City, CA 95991
bhammons601@sbcglobal.net

Maria Ashley Alvarado, President
Teamsters Local Union 601
745 E. Miner Ave.
Stockton, CA 95202
europeartmuseum@yahoo.com

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

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

Michael J. Miller
1611 Granville Ave., #8
Los Angeles, CA 90025
rochellegoffe@gmail.com

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org

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