Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: MERRILEE ZERROUGUI          )           Protest Decision 2016 ESD 354

            and RON RUELAS,                         )           Issued: December 22, 2016

                                                                        )           OES Case No. P-400-102116-FW

            Protestors.                                          )          

____________________________________)                      

Merrilee Zerrougui and Ron Ruelas, members of Local Union 287, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Local Union 287 business agent Jerry Sweeney and president Robustino Copado retaliated against them for protected activity, in violation of Article VII, Section 12(g) of the Rules.

            Election Supervisor representative Deborah Schaaf investigated this protest.

Findings of Fact and Analysis

This protest arose from events detailed in our decision in Teamsters United, 2016 ESD 295 (September 30, 2016).  There, we found that Local Union 287 business agent Jerry Sweeney violated the Rules by using local union stationery and office facilities to transmit a campaign contribution to Rome Aloise, then a candidate for International office on the Hoffa-Hall 2016 slate.  We did not find a corresponding Rules violation by Aloise or the Hoffa-Hall 2016 slate with respect to the contribution because Sweeney misaddressed the envelope and it was never received by Aloise at Aloise’s union work address.  Instead, it was returned to sender as undeliverable.

The envelope in which Sweeney mailed the intended contribution to Aloise listed Local Union 287 as the sender; the envelope was returned to Local Union 287 at the union hall address listed on the envelope.  The outside of the envelope did not identify the person who had mailed it, so an office staff member of the local union opened the envelope to ascertain to which officer or staff member it should be returned.  Sweeney’s personal check and the letter from Sweeney to Aloise on local union letterhead were found inside the envelope.

A photocopy of the letter and check, made together in one image, was faxed to OES.  It also apparently was sent to Teamsters United, which responded by filing the protest that was decided in ESD 295.

Sweeney filed an internal union charge against Merrilee Zerrougui and Ron Ruelas, the protestors here, alleging they violated the IBT constitution and local union bylaws by sending the copy of the letter and check to OES and to Teamsters United.  The charge also alleged that Zerrougui and Ruelas distributed the letter and check “via text, e-mail and handouts to the employees at Central Concrete and to MV Employees and others.”  Sweeney further alleged that Zerrougui and Ruelas “deliberately and knowingly distributed and posted on a bulletin board my personal Banking information without my authorization.”

On October 17, 2016, Local Union 287’s executive board mailed written notice to Zerrougui and Ruelas that Sweeney had filed his charge, setting the matter for trial on November 10, 2016.  This protest was timely filed following receipt of the local union’s notice of charges and hearing.

The protest alleged that Sweeney’s internal union charge constituted retaliation prohibited by Article VII, Section 12(g) because “one of the stated bases for this internal union charge is Sweeney’s allegation that Zerrougui and Ruelas provided the Fred Zuckerman Teamsters United slate and the Election Supervisor with the information that resulted in his being found to have committed a Rules violation.  The charge directly infringes on members’ rights under Article XIII of the Rules to file election protests and communicate information to the Office of the Election Supervisor.” 

After the protest was filed, Sweeney withdrew and refiled his charge against Zerrougui and Ruelas, removing the allegation that they had violated the IBT constitution and local union bylaws by providing the letter and check to OES and Teamsters United, and limiting the charge to the distribution of the letter and check to local union members at specified worksites thereby exposing Sweeney’s personal banking information.  The local union executive board canceled the hearing on the original charge and set hearing on the amended charge for December 15, 2016. 

The protestors presented evidence to our representative that the photocopy of the letter and check did not expose Sweeney’s personal banking information because they redacted Sweeney’s home address, the check number, the bank routing number, and Sweeney’s checking account number from the image of the check before copying the page for distribution.  Sweeney, through his counsel, has made a general demurral to this evidence but has not produced evidence to the contrary.  At this juncture, we make no factual finding on the question of whether Sweeney’s personal information was redacted from the photocopies that Zerrougui and Ruelas distributed or caused to be distributed, concluding for purposes of this decision it is unnecessary to do so.

We find that Sweeney’s original internal union charge that asserted that Zerrougui and Ruelas violated the IBT constitution and local union bylaws by forwarding the photocopy of the letter and check to OES and to Teamsters United constituted retaliation prohibited by Article VII, Section 12(g).  We find that the purpose for forwarding this item to these recipients was protected by Article XIII of the Rules, which is the protest procedure used to enforce conduct in the International officers election.  We further find that Local Union 287’s executive board joined in and supported Sweeney’s prohibited retaliation by setting the original charge for hearing rather than dismissing it outright.  See Bales, 2011 ESD 286 (June 28, 2011); see also, IBT Constitution, Article XIX, Section 1(b) (“Prior to notifying a member or officer that charges are filed, the Local Union Executive Board, Joint Council Executive Board, or General Executive Board with which the charges have been filed shall review the charges and dismiss them if the charges have not been timely filed or if the act complained of does not constitute a violation subject to discipline under this Constitution or Bylaws of the appropriate union entity.”).

Accordingly, we GRANT the protest.  In doing so, we find that Sweeney mitigated his conduct by amending the charge to remove the allegation that the protected activity of forwarding the page to OES and Teamsters United violated the IBT constitution and local union bylaws.  We further note that the amended charge has been heard by the local union executive board, and a decision on it is pending.

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.  “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.”  Hailstone & Martinez, 10 EAM 7 (September 14, 2010).

            Because proceedings on the amended charge are not complete, we DEFER our decision on remedy at present.  We will examine the findings of the local union executive board for any violation of the protected campaign rights of Zerrougui and Ruelas, in addition to the violation of their protected protest rights already found.  Members have the right under Article VII, Section 12(a) to support or oppose any candidate.  At the time the page containing Sweeney’s letter and check was distributed, the International officers campaign was ongoing.  Activity that has the purpose, object, or foreseeable effect of supporting or opposing a candidate for International office is protected by the Rules.  Distribution of the page, which showed Sweeney’s attempt to use union resources to support Aloise, at the time a candidate on the Hoffa-Hall 2016 slate, constitutes campaign activity relating to the International officers election.  Accordingly, we will assess the trial findings to determine whether any remedy to protect Zerrougui and Ruelas’s campaign rights under the Rules is necessary.

            We order the executive board of Local Union 287 to transmit its written decision on Sweeney’s internal charge against Zerrougui and Ruelas to our representative within two working days of the date it issues.

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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2016 ESD 354

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