OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: JUAN LEAL, ) Protest Decision 2011 ESD 269
) Issued: May 31, 2011
Protestor. ) OES Case No. P-121-020811-FW
____________________________________)
Juan Leal, member of Local Union 683, 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 Todd Mendez engaged in intimidation toward Leal, in violation of the Rules.
Election Supervisor representative Michael Miller investigated this protest.
Findings of Fact
According to its approved local union election plan, Local Union 683 is entitled to 2 delegates and 1 alternate delegate. At its nominations meeting held January 15, 2011, four candidates were nominated for delegate and two for alternate delegate. Two slates were formed: the Mendez for the Members slate, comprised of local union principal officer Todd Mendez and others, and the Time for Change slate, consisting of protestor Leal, Willie Rankin, and Jennifer Buompensiero. Ballots were mailed February 15 and counted March 10. All candidates on the Mendez slate won their elections. On 531 ballots counted, the margin between second and third place in the delegates race (the line separating winning candidates and losing) was 330 to 173; the Mendez candidate won the alternate delegate contest by a margin of 305 to 165.
Protestor Leal alleged that Todd Mendez engaged in intimidating behavior toward him and Rankin, the other delegate candidate on his slate, on February 5, 2011. Leal, a long time rank-and-file member of Local Union 683 competing against Mendez in the delegates election, said that Mendez interrupted a private meeting Leal arranged with Bob Russo, a steward at Pepsi, to solicit Russo’s support in the election. The meeting was conducted over lunch at Roberto’s Restaurant, a Mexican restaurant near the plant.
Leal said that about an hour into the meeting, Mendez pulled up in his car, walked into the restaurant, and sat down uninvited at Leal’s table. Only Leal, Rankin, and Russo knew about their planned meeting, so Leal surmised that Mendez or one of his supporters had followed Leal to monitor his activities. He had no evidence or witnesses to support that surmise.
According to Leal, the two proceeded to argue loudly, during which Mendez told Leal that he had “better not send me [Mendez] any more emails, or else.” Leal said that Mendez was referring to Leal’s email communications to Mendez about Leal’s campaign mailer, which was planned to coincide with the February 15 mailing of ballots. Leal said that Mendez’ language was profane and intimidating, his manner threatening and accusatory. Leal said this argument went on for about 20 minutes, when Mendez finally got up and left. Leal said that at one point during the argument with Mendez, business agent Lee Fletcher came into the restaurant from the parking lot and stood at Leal’s table. According to Leal, Fletcher spoke mostly with Rankin. Leal said that Rankin and Mendez exchanged angry words about representation issues before Fletcher came in. On Fletcher’s appearance, Rankin and Fletcher had a civil exchange, leaving Leal to deal with Mendez alone. When Mendez left, Fletcher left with him, returning to the parking lot. At that point, Leal said that Fletcher got his pit bull out of the car and walked him around, which Leal believed was an effort to further impress and intimidate Leal, Rankin, and Russo.
Mendez claimed that Leal was passing around lies about Mendez to the members in an attempt to win their support in the election.
Leal said his car had recently been “keyed,” and Mendez said Leal falsely accused him of being responsible for that vandalism.
Leal insisted to our investigator he felt threatened in the restaurant confrontation and “did not know what Mendez was capable of doing.” He said that he planned to file a police report on the vandalism to his car, naming Mendez or one of his associates as responsible, even though he had no proof. He agreed to send a copy of the report to the OES. No police report was produced.
Rankin, a member of Leal’s slate, corroborated Leal’s account, and added that Mendez is a large, strident individual whose very presence exudes intimidation and harassment. According to Rankin, Mendez outweighed and outsized both Leal and Rankin, and his yelling of profanity alone was threatening, although Rankin denied that he personally felt threatened during the heated exchange. Rankin said that what started out as an argument Mendez instigated with Leal deteriorated into Mendez’ threat that Leal “had better not send me [Mendez] any more emails, or else.” Rankin took this last statement as a real threat against Leal, saying that Mendez made it clear to Leal, Rankin, and Russo that he would tolerate no opposition in the delegate election.
Rankin interpreted Fletcher’s presence, both in the parking lot initially and afterward inside the restaurant at their table, as further intimidation of the three men. Rankin said that Fletcher’s parading of his pit bull around outside afterward was a further bullying tactic that smacked of intimidation, if not an outright threat.
Russo corroborated the accounts of Leal and Rankin, noting that Mendez behaved in a loud, abusive, and overbearing way. Russo said that Mendez’ appearance at what Russo thought would be a private campaign strategy meeting with Leal was a complete and very unpleasant surprise. At the meeting Mendez was clearly “out of control.” Russo felt intimidated from exercising his right to democratic participation in a free election, since Mendez was the boss of the entire union organization, and his behavior indicated he would tolerate no opposition. At one point, Russo thought Leal and Mendez would come to blows, and he was surprised that no one at the restaurant called the police, as Mendez was loud, profane and disruptive.
Later that afternoon, Russo said that Mendez called him twice for what Russo said was an attempt to patronize him, but Russo said he did not answer his phone. Russo thought that Fletcher’s grandstanding his pit bull afterwards was over the top and disgusting. Russo distinctly recalled Mendez warning Leal that he “better not send me [Mendez] any more emails, or else.”
Mendez categorically denied threatening, harassing, or intimidating Leal or Rankin. He admitted that on Saturday afternoon, February 5, he sat down uninvited at the lunch table occupied by Leal, Rankin and Russo at Roberto’s Restaurant near the Pepsi plant in San Diego. Mendez said that he and business agent Fletcher were technically “off the clock” on this Saturday afternoon. Because they had so much work to do, Mendez said they decided to tackle the Pepsi grievance list with the company that morning. Afterward, Mendez said he and Fletcher decided to have lunch at Roberto’s, a popular Mexican restaurant close by. Mendez had his children with him in his truck and was surprised to see Leal, Rankin, and Russo seated at a table when he drove up. Telling his children to stay in the car, Mendez went inside and sat down at their table. He admitted to our investigator that this was a mistake, but he said he wanted to know what Leal and Rankin were telling Russo, since he said they both had been spreading lies about him to many of the members during the election period and before. Mendez said he decided to sit down and “discuss” the issues with them so that Russo, who he considered to be a good steward, would not be misled. The discussion quickly escalated into a heated argument between Rankin and Mendez, both animated and cursing at each other. At that point, Mendez said that Fletcher had just driven up, came in, and quickly intervened. Mendez said that Fletcher, standing up beside the table, engaged Rankin about the issues in a normal conversational tone, while Mendez and Leal continued to argue seated at the table.
Mendez said that he and Leal traded accusations back and forth, with Leal claiming that Mendez was not doing a good job, and Mendez claiming that Leal was sending email to members hinting that Mendez had keyed his car, was following him, and was impeding his every effort to participate fully as a candidate in the delegate election. Mendez told our investigator that he never threatened Leal with any kind of “or else” language, but admitted that he did tell Leal to stop sending him email, which Leal had copied to multiple members and which Mendez said defamed him. When Leal told Mendez that he had a right to send his local union secretary-treasurer email, Mendez got up and left. Mendez estimated that he and Fletcher were at the Leal’s table for about ten to fifteen minutes.
Mendez repeatedly insisted to our investigator that he was not confrontational with Leal. However, when our investigator recounted to Mendez the scene Mendez had just described to the investigator, Mendez agreed he was confrontational, had made a mistake, and had exercised poor judgment. He said he was surprised to see Leal and Rankin at the restaurant and agreed he should not have barged in on their private meeting. He further agreed that he would never do anything like that again.
Fletcher confirmed to our investigator that he and Mendez went to the Pepsi plant on Saturday, February 5, to discuss several grievances with management. When they were done, he said they decided to have lunch at Roberto’s.
Fletcher said he and Mendez were surprised to see Leal and Rankin when they drove up to the restaurant. Fletcher denied knowing that the other parties would be there and emphatically denied that he or Mendez had known about the Leal meeting or followed them there to force a confrontation. Instead, he said the restaurant meeting was pure happenstance.
Fletcher confirmed that Mendez got to the restaurant first and had interrupted Leal, Rankins, and Russo at their campaign strategy meeting. By the time Fletcher arrived, he said that Leal and Mendez, although voicing strong disagreements, were addressing each other in calm, reasoned tones. Fletcher said that Mendez’ surprise at running into Leal, Rankin and Russo apparently left him less inhibited. However, Fletcher was adamant that Mendez did not threaten Leal or Rankin. Fletcher admitted that Mendez’ act of barging in on their private table gathering was uncalled for and caused problems
Fletcher did not hear Mendez make any kind of threatening “or else” demands or ultimatums during the restaurant meeting. He said that Mendez told Leal that “if you think you could do a better job [of representing the members], you’re welcome to it.” Fletcher said he did not hear any argument about email exchanges or car vandalism. Almost from the outset of his arrival at Roberto’s, Fletcher came between Rankin and Mendez and diffused their heated exchange. He said that nothing about Mendez’ behavior was threatening or overtly intimidating. The exchange before he got to the table was a little loud, but it quickly calmed down when he arrived and started talking with Rankin. Fletcher said there was no reason for anyone to think the police should be called to mediate the dispute. Fletcher was present with Mendez at the Leal table for only about ten minutes when they realized that, with Leal present, nothing good would happen, and they decided to go to another restaurant for lunch.
Fletcher denied that he acted to intimidate the group by parading his pit bull around the parking lot after the confrontation. He said that had travel plans following the morning meeting at Pepsi and had brought his one-year-old pit bull puppy with him in the car. After the incident inside the restaurant, Fletcher returned to his car and let the dog out near the bushes so he would be alright during the ensuing long drive. He denied parading the dog in front of Leal or Rankin.
Only one email that would have been encompassed in Mendez’ statement to Leal was produced to our investigator. It was Leal’s request for a campaign mailing to the local union’s membership list, permitted by Article VII, Section 7 of the Rules. The mailing was carried out as Leal requested, and without incident.
Analysis
Article VII, Section 12(a) of the Rules guarantees to members the “right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.” Article VII, Section 12(g) reinforces this basic right through its prohibition of “[r]etaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules...”
These rights are fundamental to the conduct of a fair and open election. A fair and open election is the “central purpose” of the Consent Decree. U.S. v. IBT, 948 F.2d 98 (2nd Cir. 1991). Acts of coercion, interference or harassment of members in the exercise of these are forbidden. Richards (after remand), 2000 EAD 27 (September 27, 2000).
Here, Mendez violated these provisions by interrupting a meeting his election opponents were conducting with another member concerning campaign strategy. In reaching this conclusion, we credit the evidence presented by Leal, Rankin and Russo and conceded by Mendez that Mendez sat down at Leal’s table uninvited for the purpose of “discussing” (Mendez’ term) election issues with Leal and Rankin. Viewed objectively, Mendez’ interruption of the meeting and his manner and demeanor upon arrival was intimidating. We further find that Mendez intended his presence and behavior to be disruptive. While our precedents hold that loud and obnoxious campaign activity in a parking lot often is permissible, those precedents do not permit interruption of a private meeting such as here.
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.
We order Mendez to cease and desist from interfering with members’ right to engage in campaign activity. We further order Local Union 683 to post on all union bulletin boards at the local union hall and at all worksites under the jurisdiction of the local union the notice attached to this decision. Such notice shall be posted within two days of issuance of this protest decision and shall remain posted until June 30, 2011. Within two days of completing the posting, the local union shall submit an affidavit of compliance to our office.
We order no further relief. In particular, we order no relief with respect to Fletcher, finding that his actions inside the restaurant and his subsequent action in the parking lot in taking his dog out of his vehicle did not have the purpose or effect of intimidating members of Local Union 683. Finally, we find that the Mendez’ conduct, while intimidating to Leal and Russo, was confined to Roberto’s and did not affect the outcome of the delegates election.
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 269DISTRIBUTION 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
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
Juan Leal
1980 Julianna
El Cajon, CA 92019
jlealtfc683@cox.net
Todd Mendez, Secretary-Treasurer
Teamsters Local Union 683
P.O. Box 620922
San Diego, CA 92162
toddmendez@teamsters683.com
Michael J. Miller
P.O. Box 25385
Los Angeles, CA 90025
Miller.michael.j@verizon.net
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com
Maria S. 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, Suite 210
Ann Arbor, MI 48104
EllisonEsq@aol.com