IN RE: MATTHEW JANICKE and LEWIS DYE, Protestors.
Protest Decision 2011 ESD 193
Issued: March 30, 2011
OES Case Nos. P-172-022411-FW
Matthew Janicke and Lewis Dye, members of Local Union 63 and candidates for delegate, 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 supporters of the opposing slate impermissibly interfered with leafleting by taking literature from members' hands as they attempted to read it.
Election Supervisor representative Rochelle Goffe investigated this protest.
Findings of Fact
Janicke and Dye were among 36 candidates who competed for 17 delegate positions representing Local Union 63 at the IBT convention. Janicke is employed by UPS and has been a union member since 2003 but has held no union positions, including steward. He formed the Janicke/Dye slate with Lewis Dye, a 14-year Teamster also employed by UPS who likewise has held no union positions. Ballots were mailed on February 8 and counted on March 3.
Starting at about 5:30 p.m. on February 21, 2011, Janicke and Dye campaigned the shift change in the employee parking lot at Stater Brothers Markets in San Bernardino, California. According to Janicke, a person not known to them came out, identified himself as a shop steward, and started arguing with them, stating they were not real Teamsters, they had never done anything, and had never been shop stewards. Janicke said this person began taking the flyers he and Dye had just given employees from their hands and told other employees not to take the flyers. Another shop steward, Augie Luna, came out and joined the first. Luna was a delegate candidate on the Cammack/Haarala slate. He told Janicke that this was "Cammack's house." According to Dye, Luna continued what the first steward had started, and harangued them for 30 to 40 minutes; Dye said that Luna and the other steward were screaming at them. Dye saw this behavior as a clear attempt to intimidate him and the Stater employees they were leafleting, none of whom he knew.
Luna told our investigator that he works 9 a.m. to 5:30 p.m. at Stater and had just come off duty when he saw Janicke and Dye leafleting. After he changed his clothes, he approached the men, neither of whom he knew. Dye introduced himself, gave Luna a flyer and asked for his vote. Luna said he replied, "Why would I vote for you? What experience do you have? Are you a shop steward? Have you done any work on the drive?" He said he received a negative response to each of these questions. According to Luna, Dye responded, "I don't need to know those things, I'll represent your concerns at the convention." Luna said he replied, "You would just raise any old concerns without knowing anything? You need to do your homework. Come back when you know what it is to be a real Teamster." Dye continued the debate, saying, "You never go to UPS in Ontario," where Dye works.
Luna denied saying anything to Janicke. In particular, he denied saying, "This is Cammack's house." He further denied taking leaflets from anyone's hands and denied being belligerent or aggressive. Asked if he raised his voice, he said he might have just a little, but he said he knew the area was under video surveillance and people have been fired for their behavior.
Andrew Avila is a 19-year Teamster employed as a forklift driver by Stater where he also serves as steward. He told our investigator he saw Janicke and Dye passing out leaflets at about 5 p.m. on February 21, when his shift ended. Avila did not know them but he engaged them in conversation.[1] He said he asked them a number of questions and was impressed with their education, but he recalled that they did not have answers to his questions and they seemed frustrated. He said that around 5:30 p.m., Luna came out and joined him in asking questions. Avila said he was out talking to the leafleters for about 45 minutes. He said he did not recall taking leaflets from any members, something he said he would recall if it had happened. He denied being disruptive and denied any heated conversation.
Milo Sanchez, a 20-year Teamster employed by Stater, said he watched the interaction between Luna and Avila and the leafleters for about five minutes. He said he did not recall the conversation. He denied that it was heated, although there may have been some raised voices, "nothing that a man can't handle" though. He did not see leaflets being taken from anyone.
Ron Matava, a 21-year Teamster working at Stater, said he stopped and listened to the campaigners for about five minutes when he was leaving work on February 21. As he stood there, a number of employees walked by. He said one employee walked past the campaigners and would not accept a leaflet. At this, Luna said, "See? No one wants that here. I don't know why you are here." Matava said that one of the campaigners responded, "Who are you? You've never been anywhere." According to Matava, the conversation continued in that vein - "Why are you doing this?" followed by "You've never been anywhere" - for about two minutes. He said they sounded like two young kids bickering. Matava said the conversation was not threatening and that no one removed a leaflet from anyone's hands.
The tally of ballots completed on March 3 showed that Janicke and Dye finished with 135 and 123 votes, respectively, for the last two positions in the delegates election. The winning candidate with the fewest votes tallied 1,389 votes.
Analysis
Article VII, Section 12(a) grants members "the right to participate in campaign activities," including the right "to distribute campaign literature." This provision applied to the activity of Janicke and Dye on February 21.
The members using the parking lot where Janicke and Dye campaigned had the right under the same Rules provision "to hear or otherwise receive such campaign advocacy."
Luna and Avila also had the right, at the same time and to the same audience, to "support or oppose any candidate." They were free to exercise this right by declaring their support for Cammack and their opposition to Janicke and Dye, and the members using the parking lot also had the right to hear their advocacy. We find insufficient evidence to conclude that Luna or Avila took leaflets from members in any concerted or systematic way to defeat their right to receive the advocacy. Cf. Thornsberry, 2005 ESD 13 (October 5, 2005), aff'd, 05 EAM 3 (November 4, 2005).
Although the dialogue, particularly from Luna and Avila, was at times loud, a statement of advocacy does not violate the Rules merely because it is loud or obnoxious. Ramos, 2006 ESD 65 (February 3, 2006).
Accordingly, we DENY this protest.[2]
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
2011 ESD 193
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 Hall 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
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.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
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Matthew Janicke
Lewis Dye
mmjanicke@hotmail.com
Randy Cammack, Secretary-Treasurer
Teamsters Local Union 63
845 Oak Park Road
Covina, CA 91724
Lizlocal63@aol.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
Maria Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com
[1] Based on the descriptions of the witnesses, we conclude that Avila was the unnamed steward who first engaged Janicke and Dye.
[2] Although this protest was filed pre-election, we consider it in a post-election context pursuant to Article XIII, Section 2(f)(2). As we find no Rules violation, we need not determine whether the conduct complained of may have affected the outcome of the election.
