Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: EDGAR ESQUIVEL and               )           Protest Decision 2011 ESD 240

            KEN GERMAIN,                             )           Issued: April 29, 2011

                                                                        )           OES Case Nos. P-114-020411-FW

            Protestors.                                          )                       & P-124-020911-FW

                                                                        )

Edgar Esquivel, member of Local Union 952, 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 campaign material supporting the Kelly/Metcalfe 952 Membership Save Our Union slate was posted inside a locked, glass-enclosed worksite bulletin board.  

Ken Germain, member of Local Union 952, also filed a pre-election protest.  Germain’s protest alleged that campaign material supporting Sandy Pope for General President was posted inside a different locked, glass-enclosed worksite bulletin board than the one Esquivel protested.

These protests were consolidated for investigation and decision.  Election Supervisor representative Rochelle Goffe investigated them.

Findings of Fact and Analysis

            Local Union 952, in Orange, California, is entitled to 12 delegates and 6 alternate delegates to the IBT convention.  Two slates of twelve candidates each were nominated for delegate on January 12, 2011.[1]  The Kelly/Metcalfe slate was led by incumbent local union officers and business agents.  The Reform 952 Members for Sandy Pope slate was comprised of rank-and-file members.  At the tally conducted March 4, all candidates on the Kelly/Metcalfe slate were elected with more than 65% of votes cast.

            Ballots were mailed on February 11.  A week earlier, on February 4, Equivel alleged that a Kelly/Metcalfe campaign flyer was posted inside a locked, glass-enclosed bulletin board at the Albertson’s distribution center truck swap yard in Sloan, Nevada, just outside Las Vegas.  The board is reserved for notices from the local union. 

            Investigation showed that the worksite has two locked, glass-enclosed bulletin boards.  One is for union notices, the other for company.  The keys to both boards are held by the company.  When the union steward seeks to post a notice on the union board, he must ask the company manager for access to it.

            Craig Pearcy has been steward at the Sloan worksite for some sixteen years.  He told our investigator that he received Kelly/Metcalfe flyers from a co-worker on Monday, January 31.  Pearcy received no instructions with the flyers, so he distributed them to co-workers over the next few days.  On Wednesday, February 2, he approached his manager and asked for access to the union bulletin board to post “union material.”  When the manager opened the glass, Pearcy posted the Kelly/Metcalfe flyer.  It was reported to Esquivel on Thursday, February 3, who filed the protest Friday morning, February 4.  That same day, our investigator contacted Patrick Kelly, Local Union 952’s principal officer, to advise of the protest.  Kelly contacted Germain, the business agent responsible for the Sloan worksite, who in turn left voice messages for Pearcy instructing him to remove the flyer from the union bulletin board.  Pearcy retrieved the message Saturday morning, February 5, and called his manager and asked him to remove the flyer.  According to Pearcy, the flyer was taken down from the union board by 7 a.m. on Saturday, February 5. 

            Pearcy did not understand that posting campaign material on the union board violated the Rules.  Instead, he surmised that posting the flyer under the glass was the only problem.  Accordingly, on Monday, February 7, he taped to the outside of the glass covering the union board another copy of the flyer that was removed from under it.  He removed the flyer a few hours later, when he saw another employee taking a photograph of it.  That employee told him the flyer on the glass still was a violation; at that word, Pearcy removed it.

            At the time Pearcy took the Kelly/Metcalfe flyer down from the glass of the union board, he saw a Sandy Pope for General President flyer beneath the glass of the company board.  According to Albertson’s senior transportation manager Tom Nolan, an employee persuaded a new supervisor to post Pope flyer on the company board.  The supervisor was unaware that posting campaign material on the company board violated company policy.  When Pearcy saw it, he notified Nolan, who removed it immediately.  Another copy of the flyer subsequently was posted on the wall next to the company board.  Nolan removed that one too.

            The Rules prohibit use of union and company bulletin boards to campaign, unless there is a preexisting right to campaign there.  The evidence here is that the locked, glass-enclosed union board was used exclusively for union notices.  Therefore, there was no pre-existing right to campaign on that board, and posting the Kelly/Metcalfe flyer there violated the Rules.  Likewise, the evidence of this case is that the locked, glass-enclosed company board was used exclusively for company notices and could not be used to campaign.  The flyers were removed promptly from both boards, before ballots were mailed.

Although the protests here were filed pre-election, we consider them in a post-election context pursuant to Article XIII, Section 2(f)(2).  Generally, post-election protests may be considered and remedied only if the alleged violation may have affected the outcome of the election.  Article XIII, Sec. 3(b). 

The wide electoral margin between the candidates on the Kelly/Metcalfe slate and the Reform/Pope candidates far exceeds the number of members employed at the Albertson’s facility in Sloan.  Further, counterbalancing violations of similar duration were committed by supporters of both slates and were promptly remedied when the offending flyers were removed.  Accordingly, we conclude that the conduct found here did not affect the outcome of the election.

Accordingly, we DENY both protests.

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, NY 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

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

Edgar Esquivel

770 South Yorba

Orange, CA 92869

eesquivel@csu.fullerton.edu

Ken Germain

22451 Birchcre Mission

Viego, CA 92692

952teamsters@gmail.com

Patrick Kelly, Secretary-Treasurer

Teamsters Local Union 952

140 S. Marks Way

Orange, CA 92868

team952@aol.com

Rochelle Goffe

1234 22^nd Avenue, E

Seattle, WA 98112

rochellegoffe@gmail.com

Christine Mrak

2357 Hobart Avenue, SW

Seattle, WA 98116

chrismrak@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