Protest Decisions

            The Sandy Pope campaign 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, principal officer of Local Union 683, impermissibly gathered information on a campaign meeting of Pope supporters and subsequently harassed them for attending the meeting, in violation of the Rules. 

            Election Supervisor representative Michael Miller investigated this protest. 

Findings of Fact

In Leal, 2011 ESD 269 (May 31, 2011), we found that Mendez violated the Rules by interrupting a restaurant meeting Juan Leal and Willie Rankin, Mendez’ opponents in the local union delegates election, were conducting concerning campaign strategy.  We found that Mendez entered the restaurant, seated himself at the table of his opponents uninvited, and proceeded to argue in a loud, accusatory, and intimidating manner for about 20 minutes before getting up and leaving the restaurant.  We found that Mendez intended his presence and behavior to be intimidating and disruptive of the protected activity of Leal and Rankin to participate in the campaign activity of planning electoral strategy.  We ordered Mendez to cease and desist from interfering with members’ right to engage in campaign activity, and we ordered Local Union 683 to post a remedial notice on all worksite bulletin boards under its jurisdiction.

The current protest alleged conduct that, if proven, may constitute a violation of our remedial order.  Investigation showed that Juan Leal attended a pro-Pope meeting convened by Bob Russo, a local union steward employed at Pepsi.  The meeting was held at Appleby’s restaurant in Kearney Mesa, a suburb of San Diego, at 2:00 p.m. on Sunday, August 21, 2011.  Leal stated that, in addition to Russo and himself, Pepsi plant members Leon Smith and Tom Ippolito and Keebler plant member Ron Lorek attended the meeting, which lasted just under two hours.  Leal stated that the group discussed their overall dissatisfaction with Mendez’ leadership of the local union, the problems the Pope supporters faced at the IBT convention, and the data reported on the local union’s most recent LM-2 report.  He said they also discussed how they could collectively garner more support for Pope among the local union rank and file.  Leal stated he sold Pope campaign fund raffle tickets to the others at the meeting.  Everyone in attendance was off the clock, and the meeting was an informal, conversational sharing of grievances and strategic campaign planning.

Russo told our investigator that, for the past several months, he has held informal meetings one Sunday afternoon each month to allow invited members to air grievances, discuss alternatives, and to talk about the delegate contest, the IBT convention, and the upcoming International and local union elections.  Russo said he supports the Pope campaign and has used the meetings to muster support for her candidacy and to get an idea of what is on members’ minds regarding the current local union management.  The meetings are not secret.  They are open to interested members who want to discuss the listed topics.  However, because so many of the problems discussed relate to Mendez’ management of the local union, Russo said that Mendez is not invited and would not be welcome to attend.

Russo stated that the first meeting was held in February 2011, before the delegates election, and Mendez arrived uninvited, interrupted the meeting, and engaged in a loud argument with Leal and another member, Willie Rankin.  Given this experience, while the meetings are open to members who find out about them directly from Russo or Leal or by word of mouth at the plants, Russo said they are not intended to be debates with Mendez or his staffers.

Russo stated that the August 21 meeting was conducted without incident and that the attendees discussed topics ranging from the International election – and Pope’s candidacy – to problems with Mendez’ leadership.  Russo confirmed that Leal sold Pope campaign raffle tickets at the meeting.

Leal told our investigator that, during the August 21 meeting, he noticed an unknown man in the adjoining booth periodically eyeing the Russo table and apparently listening to their discussion.  The man was seated with what Leal presumed to be his wife and two children, and the party stayed for the duration of the meeting. 

Leon Smith, a truck driver at Pepsi, attended the meeting after learning about it from his steward, Russo.  Smith said that the group talked about the Pope campaign and, in addition, each attendee had his own list of grievances concerning the local union administration and the direction of the union.  Smith’s complaint concerned the recent steward election, which Russo narrowly lost.  Smith contended that the election was inadequately announced and poorly handled, and he believed that the results were suspect because of ballot security problems.  Smith told the group that when another driver questioned the election with business agent Richard Hurd, Hurd reacted unprofessionally.  Smith thereafter circulated a petition for a revote. 

A few days after the August 21 meeting, Smith said he went to the local union to obtain a copy of the bylaws.  As soon as he walked into the office, he said he saw one of the business agents “make a bee line” for Mendez’ office.  Smith took his copy of the bylaws from a staffer and was headed out to his car when Mendez came up to him on the walkway and said he wanted to introduce himself.  Smith said the two had a brief discussion about Smith’s complaint that union meetings were scheduled at times when members were typically working.  According to Smith, Mendez indicated that he was going to change the membership meeting times to Sundays so that people would be able to attend without taking time off work.  Mendez asked Smith if he had any other things he wanted to talk about, and Smith mentioned the recent problems with the steward election at Pepsi and Hurd’s inappropriate behavior.  Mendez responded, “Let’s face it, Bob [Russo] just got beat,” but he acknowledged that Hurd should not have flown off the handle when the election was called into question.  According to Smith, Mendez added, however, that Russo “better be careful, because he could be interfering with union business.”  Explaining his statement, Mendez said he had heard about the August 21 meeting, which he referred to as a “secret meeting.”  According to Smith, Mendez’ tone was ominous.  He also told Smith, “I know who you are.”  Smith said that Mendez did not comment beyond that, and Smith did not challenge him on the matter by asking why he would bring up the meeting or how he even knew about it.

Ron Lorek, a steward at Keebler, also attended the meeting.  He learned of the meeting when Russo called him on Saturday, August 20, to tell him about it.  According to Lorek, Russo said they would discuss the upcoming International election, the condition of the local union, representation problems they were having with the local union, and the local union election.  Lorek said he has known Russo for many years and they share common concerns as stewards.  Lorek attended the meeting, where he said they discussed the topics just listed.

A couple days later, Lorek said that Mendez called him in the evening, after work.  Lorek was not expecting a call from Mendez.  Mendez left a voice message, saying that he wanted to speak with Lorek and to return the call the next day.  Lorek did so.  At the outset, Lorek said that Mendez made it clear he wanted to talk about the August 21 meeting with Russo and Leal at Appleby’s.  According to Lorek, Mendez said he was “shocked” to learn that Lorek had attended, and he made it clear that he perceived the purpose of the meeting was to undermine Mendez and discredit his management of the local union.  Lorek told our investigator that he was irritated that Mendez had called about what Lorek thought was his decision in a “free country” to attend any meeting he wanted without having to wonder why his union boss knew about it and was calling his attendance into question.  Lorek said he had seen the notice posted from our decision in 2011 ESD 269, and was annoyed that Mendez had apparently “not learned his lesson.”

During their call, Lorek did not ask Mendez, and Mendez did not offer, how he knew about the meeting.  Lorek said he had noticed, however, that a man and his family had come into the restaurant after the meeting had begun, and apparently waited for the particular table next to his.  Lorek said he had a “bad vibe” about the way the man kept eyeing them and listening to what they were talking about.  He assumed that the man was the source of Mendez’ information that Lorek had been present at the meeting.

Bill Hastings, a Keebler driver, told our investigator he had attended several of Russo’s monthly meetings but did not attend the one on August 21.  During the week of August 22, however, Hastings said that Mendez called him during working hours and left a message that he wanted to talk to Hastings “about [his] dues situation.”  Hastings pays cash dues, and he has maintained that his dues record is inaccurate.  He said he has called Mendez multiple times over several months about the matter, leaving messages that he said Mendez never returned.  Now, unexpectedly, Mendez called about the matter.  When Hastings called back the next day after his night shift was over, he said that Mendez did not want to talk about dues, but instead immediately started questioning Hastings about the off-site meetings.  According to Hastings, Mendez said that he “couldn’t believe that [Hastings was] attending these meetings,” and tried to argue with him about them.  Hastings told our investigator he thought that Mendez was out of line, particularly because Mendez said he “had a plant at the meeting – the guy at the next table with a wife and two kids.”  According to Hastings, Mendez seemed proud of that fact and wanted Hastings to know that he and the others were being watched, and that Mendez “knew what [he was] up to.”

Mendez denied to our investigator that he had a “plant” at the August 21 or any other meeting that Russo had called.  Although he claimed not to know what transpired at the meetings, he questioned the Election Supervisor’s jurisdiction of the protest, insisting that the meetings had “nothing to do with Sandy Pope or Hoffa – they’re simply to discredit me.”  He claimed he had heard about the meetings from other members, but he refused to identify them, saying they wanted to stay “out of the picture.” 

Mendez acknowledged that he called Lorek in the few days following the August 21 meeting, but said that he and Lorek are friends and talk all the time.  He denied that he called Lorek to intimidate him or even to talk about the meeting, but rather to talk about other things, which he did not specify.  He said that Lorek, not he, brought up the August 21 meeting, and that Mendez responded by assuring Lorek that “you guys have an open door” to his office.  Pressed on this point, Mendez acknowledged that he probably told Lorek he was “surprised” that Lorek had attended the meeting but insisted he had no intention of intimidating Lorek by saying this, but only to address any concerns Lorek might have. 

With respect to Smith, Mendez said, that Smith, not he, mentioned that Smith had gone to the meeting, to which said Mendez responded simply with, “I know about the meetings.”  Mendez acknowledged that he approached Smith as he was leaving the union office a few days after the August 21 meeting because he “made a point to introduce [himself] to any member who came into the office that [he] didn’t know.”  He denied that he was tipped off by another staffer that Smith was in the office and was one of the meeting attendees.  He said that he and Smith spoke mostly about Smith’s request that the membership meetings be rescheduled to a time and day when more members were not working so that they could attend.  Mendez denied saying that Russo “better be careful” or making any other negative reference to him, other than to say that the members should give the new steward who recently unseated Russo a chance.  He told Smith that he had heard Russo had taunted business agent Richard Hurd, saying “we are going to vote you out” using expletives at the Pepsi plant recently, and that if Hurd had responded angrily or unprofessionally to this, Mendez agreed that Hurd behaved inappropriately.

With respect to the call to Hastings, Mendez said he attempted to reach him to discuss the protracted dues posting problem and not to discuss the subject meeting.  He said that Hastings brought up the August 21 meeting.  Mendez denied telling Hastings that he had a “plant” of a man, his wife and two children monitoring the meeting from an adjacent table.  He also denied saying that he knew what Hastings, Russo, and Leal were up to. 

Analysis

As we noted in Leal, supra, 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).

            We found in Leal that Mendez interfered with the rights of those who attended the February 5 meeting to participate in campaign activities and to aid or campaign for any candidate by interrupting the meeting and loudly arguing with the participants.  We concluded that Mendez’ behavior there was objectively intimidating.  As remedy, we ordered Mendez to cease and desist from interfering with members’ right to engage in campaign activity; we further ordered Local Union 683 to post a remedial notice.

            In this protest, three members describe Mendez taking affirmative steps to contact each of them and raising the August 21 meeting in discussion.  For each, the contact was unexpected or an unusual departure from what they knew as Mendez’ past practice.  Each understood Mendez to have contacted them to discourage the organizing and discussion that occurred on August 21 and at the other Russo meetings.  Mendez, as principal officer of Local Union 683, has proper reasons to talk to members, to ask their views on union management, to listen to their concerns and dissatisfactions, and to try to persuade them to support him and his policies.  We do not mean to bar such proper discussion and interaction.  In this case, however, Mendez’ unusual efforts to contact members on the heels of a meeting that visibly involved some discussion of an International officer candidate supports a finding that his conduct was provoked in part by Rules-protected activity and aimed to suppress that activity. 

            We therefore conclude that Mendez again violated members’ rights under Article VII, Sections 12(a) and (g) by gathering information on the August 21 meeting and confronting several attendees about the meeting.  We find that Mendez identified meeting attendees and obtained information on subjects they discussed.  We further find that Mendez sought out the attendees whom he believed were susceptible to challenge and told them he knew of the “secret meeting,” that he was surprised they had attended, and that he knew who they were and what they were up to.  These encounters were, in part, to intimidate the attendees and interfere with their protected right to engage in campaign activity.

            We reject Mendez’ assertion that we lack jurisdiction of this case.  We find that topics discussed at the meeting included the International officer election and the Pope campaign, which are within our jurisdiction.

            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 again order Mendez to cease and desist from interfering with members’ right to engage in campaign activity.  As Mendez has disobeyed our previous cease and desist order on this subject, we order Mendez to pay a fine of $100 to the Office of the Election Supervisor.  The fine is strictly remedial in nature and is intended to compel Mendez’ compliance with our order. 

            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 November 23, 2011.  Within two days of completing the posting, the local union shall submit an affidavit of compliance to our office.

Compliance with the fine and the posting must be completed within two working days of the date of this decision.  Within one day following payment of the fine, Mendez must provide an affidavit stating that the fine to OES was paid solely from his personal funds, that no other person, IBT member, candidate, slate, or campaign has transferred or contributed any funds to him for the purpose of paying all or part of the fine, and that he will refuse any such offer, transfer, or contribution.  Within one day following completion of the posting, Local Union 683 shall provide an affidavit demonstrating that the posting has been completed.

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