Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: Juan Carlos Rodriguez,    )           Protest Decision 2011 ESD 252

                                                                        )           Issued: May 12, 2011

             Protestor.                                           )           OES Case Nos. P-211-020211-NE                

____________________________ ________)

            Juan Carlos Rodriguez, member of Local Union 854, filed a pre-election protest pursuant to Article XIII, Section 2 of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Hoffa-Hall 2011 campaign literature was impermissibly displayed at two locations at Consolidated Bus Transit, an employer of members of Local Union 854.

 

            Election Supervisor representative Deborah Schaaf investigated this protest.

Findings of Fact

            Local Union 854 represents nearly 2,000 Teamsters, including members employed as school bus drivers, escorts, mechanics and service employees at Consolidated Bus Transit, Inc.   Local Union 854 is entitled to two delegates and one alternate delegate to the IBT convention.   Although two full slates of candidates were nominated for these positions, a protest decision subsequently held all candidates on one slate to be ineligible.  Eligibility of Ham, 2011 ESD 138 (February 25, 2011), aff’d, 11 EAM 27 (March 18, 2011).  The remaining slate, comprised of incumbent local union officers, was elected by white ballot.  The members of the elected slate support Hoffa-Hall 2011.

            Protestor Rodriguez is employed as a school bus driver for Consolidated and has been a local union member since 1993.  He is not a steward or business agent and was not nominated to run as a candidate in the union’s delegates election.  He has been involved in local union reform activities since March 2002, when he began organizing members to advocate for better representation from Local Union 854 and to reach wage parity with members of Local Union 1181 employed by Consolidated at a different location.  He was discharged by Consolidated, but reinstated with back pay in August 2007, when the National Labor Relations Board (on appeal from a 2005 Administrative Law Judge decision) found that Consolidated unlawfully discharged Rodriguez because of his protected union activity.[1]

           

            On Monday, January 31, 2011, Rodriguez reported for work and noticed about 25-30 folded Hoffa-Hall 2011 flyers on a table near the drivers’ sign-in station at the Consolidated business office, a common gathering area for drivers to sign-in for work and obtain a daily report.  On the following morning, Rodriguez noted that the flyers were gone.

           

            He reported his observation to David Levin, a representative of Teamsters for a Democratic Union, and Levin forwarded Rodriguez’s protest to the OES on February 2, 2011; it was not docketed until March 10, when counsel for TDU inquired as to its status. 

 

            When interviewed by our investigator, Rodriguez reported another alleged violation that was not included in his written protest.  Rodriguez stated that the same Hoffa-Hall 2011 flyer he observed on the sign-in desk on February 2 was posted on the wall of a common walkway area of the Consolidated worksite, a location where drivers would see it each day.  Rodriguez stated that the flyer was not posted on the union or company bulletin boards at Consolidated, but only in the hallway; he claimed it remained on the wall for two or three weeks in February.  Rodriguez did not know who posted the flyer or the date it was removed.

            Felix Bourdier corroborated Rodriguez’ claims in substantial part.  Bourdier confirmed that multiple pieces of literature that he described as being “anti-Sandy Pope” appeared on the sign-in desk at Consolidated in early February 2011.  Pope is a candidate for IBT General President, running against incumbent James P. Hoffa.  Bourdier also confirmed Rodriguez’ statement that the literature was gone from the desk the next day.  He supported Rodriguez’ statement that the literature also was posted in a worksite hallway commonly used by Local Union 854 members, describing it as having been taped to the wall.  However, he stated that he was not sure when the flyer was posted or how long it remained on the wall, but thought it was possibly for only two or three days.  He also claimed that he saw the same flyer posted on a door leading out to the bus yard, and stated that it too remained posted for just a few days.  He stated that all postings were on business property owned by Consolidated.

            Neither Rodriguez nor Bourdier took a piece of the Hoffa-Hall 2011 campaign literature or saw any other member take or possess it.

            Our investigator was unable to find evidence concerning who placed the campaign flyers at the sign-in station, or who posted the flyer in the hallway.  Counsel for Hoffa-Hall 2011 denied that the campaign posted or delivered campaign materials to the Consolidated worksite.  Local Union 854 officials denied that they delivered or posted or requested the delivery or posting of any campaign materials at the Consolidated worksite.  Finally, Mario Phillips, Consolidated’s supervisor at this worksite, stated in two different interviews that he never saw any Hoffa-Hall 2011 campaign literature at the Consolidated worksite, and specifically that he had never seen any literature lying on the sign-in table or posted on any wall in the business office.  He claimed he did not “know anything about Hoffa literature.”

Analysis

            As a threshold issue, Hoffa-Hall 2011 raised the apparent untimeliness of this protest.  Article XIII, Section 2(b) requires pre-election protests to be filed “within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or such protests shall be waived.” 

           

            In this instance, the protestor raised the matter with TDU’s David Levin, who forwarded Rodriguez’s protest to the OES on February 2, 2011, two days after Rodriguez allegedly noticed the Hoffa 2011 literature in the Consolidated office.  For a reason we were unable to determine, the protest was not docketed until March 10, when we received an inquiry about it from TDU.  At that time, the original protest was located, docketed, acknowledged and referred for investigation.  Despite of the lapse of time between the discovery of the literature and the acknowledgment letter, the delay was not the fault of the protestor, but rather the Office of the Election Supervisor. For this reason, the protest, including the additional allegations raised during the investigation, were timely filed, and will not be dismissed on this procedural ground.

            Turning to the merits, Article XI, Section 1(b)(2)  of the Rules provides that “[n]o employer may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate. … These prohibitions extend beyond strictly monetary contributions made by an employer and include contributions or use of employer stationery, equipment, facilities and personnel.” 

            Under the Rules, the term “campaign contribution” is defined to include “any direct or indirect contribution of [a] thing of value where the purpose, object or foreseeable effect of that contribution is to influence, positively or negatively, the election of a candidate for Convention delegate or alternate delegate or International Officer position.”  An employer such as Consolidated makes a prohibition campaign contribution to a candidate when it distributes or displays that candidate’s campaign literature (or permits distribution or display of such literature) on the drivers’ sign-in table or on walls or doorways within the facility.  While union members may distribute or display of campaign literature within an employer’s facility in non-work areas, including break rooms and drivers’ lounges, and on bulletin boards where a pre-existing right to distribute and display such material exists, the employer may not do so.  In particular, an employer may not distribute campaign literature on the table where drivers sign in and receive their assignments conveys to employees, as such distribution there signals to employees that the employer favors a particular candidate in the union election, and an employer’s contribution to a candidate, including an endorsement of the candidate, is prohibited under the Rules. 

            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.

In reaching the conclusion to grant the protest, we note that remedial action was taken promptly with respect to the campaign literature on the sign-in table by removing it from that location.[2]  Further, we find no evidence that the literature laid out there for distribution was picked up by employees.  In addition, the postings in the hallway and on the door were removed within a few days or, at most, weeks.[3]  

Moreover, since no delegate election was ongoing in the local union, the impact of the campaign literature is far removed from the possible balloting in the International Officer election in October 2011. 

Nevertheless, we direct that the notice attached to this decision be posted by Local Union 854 on all worksite bulletin boards at the Consolidated Bus Transit facility that is the subject of this protest.  We order this remedy to inform the members employed there that the employer cannot participate in the IBT officer election by assisting a candidate or campaign with distribution or display of campaign material.

            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

            2011 ESD 252

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. Box10128

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

3813 Taylor Blvd.

Louisville, KY 40215

fredzuckerman@aol.com

Robert M. Colone, Esq.

P.O. Box272

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

Juan Carlos Rodriguez

66 Overlook Terrace, #2F

New York, NY 10040

Juancarlos696@gmail.com

Daniel J. Gatto, President

Teamsters Local Union 854

764 St. Lukes Place

Baldwin, NY 11510

dglocal854@optonline.net

Deborah Schaaf

1118 Coddington Road

Ithaca, NY 14850

Debschaaf33@gmail.com

David F. Reilly, Esq.

22 West Main Street

Wickford, RI 02852

dreilly@dfresq.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., 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