January 10, 1996
VIA UPS OVERNIGHT
Luis Ortiz
January 10, 1996
Page 1
Luis Ortiz
3924 W. Muriel Drive
Glendale, AZ 95308
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Rod Brasch, Vice President
Teamsters Local Union 104
1450 S. 27th Avenue
Phoenix, AZ 85009
Richard Esquivel, Secretary-Treasurer
Teamsters Local Union 104
1450 S. 27th Avenue
Phoenix, AZ 85009
Luis Ortiz
January 10, 1996
Page 1
Re: Election Office Case No. P-275-LU104-RMT
Gentlemen:
A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Luis Ortiz, a member of Local Union 104. Mr. Ortiz alleges that he has been denied access to an employer- maintained bulletin board by Rod Brasch, a business representative of Local Union 104. The protester further alleges that he has been threatened with retaliation for election-related activity, in violation of the Rules.
This protest was investigated by Regional Coordinator Jonathan Wilderman.
For the past 20 years, Mr. Ortiz has been employed by Ryder at a car-haul facility located in Phoenix, Arizona. He is the elected steward of a 17-member bargaining unit.
Luis Ortiz
January 10, 1996
Page 1
On December 11, 1995, Mr. Brasch traveled to the Ryder facility at which Mr. Ortiz is employed. The purpose of his visit was to discuss some dispatch rule changes. Upon his arrival, Mr. Brasch took notice of a picture of James P. Hoffa placed on the inside of a locked, glass union bulletin board in the driver’s room. The photograph, which was taken during the recent car-haul strike, was endorsed with the phrase “To my friends at Ryder, Restore the Pride, Fraternally, Jim Hoffa, Jr.” Mr. Brasch told Mr. Ortiz to remove the picture. As the steward, Mr. Ortiz has the key to the locked union bulletin board. Mr. Ortiz stated that he had been given the photograph by another member with instructions to put it in a safe place. Explaining that according to the collective bargaining agreement “nothing should be in there but official Union notices,” Mr. Brasch repeated his instruction to remove the picture.
This official union bulletin board is maintained by Ryder pursuant to a provision in the National Master Freight Agreement with the IBT. Article 12, Section 2 of that agreement provides as follows:
The Employer agrees to provide suitable space for the Union bulletin board in each garage, terminal or place of work. Posting by the Union on such boards is to be confined to official business of the Union. The Union bulletin board shall be glassed-in with a lock for which the Employer and the steward shall have a key.
Another bulletin board exists in the facility, also located in the driver’s room. It is not locked and its use is not restricted by the applicable collective bargaining agreement. Local Union 104 does not object to the posting of campaign-related materials like the photograph of Mr. Hoffa on the general purpose bulletin board.
Mr. Brasch returned to the Ryder facility on December 13, 1995 to post several notices. The picture of Mr. Hoffa had not be removed from the locked bulletin board. Mr. Brasch located Mr. Ortiz and asked him why he had failed to remove the photograph. Mr. Ortiz declared that he would not remove it. Mr. Brasch then instructed Mr. Ortiz to remove the photograph or “I will have to take further action.” After his conversation with Mr. Ortiz, Mr. Brasch spoke with the terminal manager and demanded that the bulletin board be opened and the picture removed. The manager, being unwilling to involve himself and Ryder in what he considered an “internal union matter,” refused. Mr. Brasch later stated that unless Mr. Ortiz gave him the key to the bulletin board, he would “bring in a bolt cutters and open the goddamn thing myself.”
Mr. Ortiz was on vacation from December 21, 1995 to approximately December 27, 1995. Upon his return, he noted that the locked union bulletin board had been opened and the picture of Mr. Hoffa had been removed. Mr. Ortiz placed a new picture of Mr. Hoffa in the locked, glass union bulletin board. This second photograph contained a personal message to
Mr. Ortiz.
Rich Esquivel, secretary-treasurer of Local Union 104, was alleged by the protester to have instructed and authorized Mr. Brasch to demand removal of the photograph. No evidence of this accusation was presented. Mr. Esquivel does state that the glassed-in union bulletin board is only for official union business and is consistently used for notices bearing Local Union 104's letterhead, TITAN messages, dispatch rules and the like. The general purpose bulletin board in the driver’s room is used for a wide variety of notices.
Luis Ortiz
January 10, 1996
Page 1
In 1991, Mr. Ortiz’s predecessor, now International Representative John D. Reynolds, posted a picture of Ron Carey in the locked, glass bulletin board. Mr Carey was at that time a candidate for general president. Officers of Local Union 104 requested that Mr. Reynolds remove the picture and post it on the general purpose bulletin board. Mr. Reynolds complied with this request.
There is no dispute that the pictures of Mr. Hoffa were campaign pictures. The Rules, at Article VIII, Section 11(d) provide that “pre-existing rights” to post campaign materials on employer bulletin boards may not be restricted. Here, the collective bargaining agreement restricts the use of the glassed-in bulletin boards for official union business. A pre-existing right may exist when sufficient evidence demonstrates that a bulletin board has been used for other more general purposes than those set forth in the collective bargaining agreement. See Meyer,
et al., P-130-LU600-MOI et seq. (October 12, 1995). The only evidence of past practice submitted was the posting of the picture of Mr. Carey on that same official union bulletin board by Mr. Reynolds in 1991. No pre-existing right to use the official union bulletin board was established by this evidence since Mr. Reynolds was requested to remove the picture.
Article VIII, Section 11(f) prohibits retaliation by “any member of the IBT against any Union member for exercising any right guaranteed by” the Rules. In order to sustain such a claim, the protester is obligated to establish a connection between the action to which he objects and an election right. See Giacumbo, P-177-IBT-PNJ (November 2, 1995), aff’d, 95 - Elec.
App. - 38 (KC) (November 28, 1995). While the conversations between the protester and
Mr. Brasch were certainly not pleasant, the evidence establishes that the “further action”
Mr. Brasch was planning was to meet with the terminal manager. There is no evidence that
Mr. Brasch’s remarks were made to affect the election-related rights of the protester. Rather, his efforts were directed at enforcing the applicable provision of the collective bargaining agreement.
For the foregoing reasons, the protest is DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham and Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Luis Ortiz
January 10, 1996
Page 1
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Jonathan Wilderman, Regional Coordinator