March 13, 1996
VIA UPS OVERNIGHT
Bob Justus, et al.
March 13, 1996
Page 1
Bob Justus
262 N. Cholla
Mesa, AZ 85201
Jacque Edgmon
1512 W. Garden Street
Mesa, AZ 85201
Kimberly Ann Funk
4832 N. 88th Avenue
Phoenix, AZ 85037
Luis Ortiz
3924 W. Muriel Drive
Glendale, AZ 95308
Richard Esquivel, Secretary-Treasurer
Teamsters Local Union 104
1450 S. 27th Avenue
Phoenix, AZ 85009
Bob Justus, et al.
March 13, 1996
Page 1
Re: Election Office Case Nos. P-462-LU104-RMT
P-539-LU104-RMT
P-559-LU104-RMT
Gentlepersons:
Related pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”).
In P-462-LU104-RMT, Robert Justus and Jacque Edgmon, members of Local
Union 104 and candidates for delegate on the Arizona Teamsters Restore the Pride (“Pride”) slate, charge that Local Union 104 member Kimberly Ann Funk violated the Rules when she used their Social Security numbers in filing an eligibility protest against them and others.
See Funk, E-086-LU104-EOH (February 20, 1996). Ms. Funk is a candidate for alternate delegate on a rival slate: the Teamsters For Reform (Supporting the Ron Carey Slate) (“Reform”). Mr. Justus and Ms. Edgmon also charge that Ms. Funk’s employer, Southwest Administrators (the local union’s insurance plan), violated the Rules by giving Ms. Funk access to their Social Security numbers.
Bob Justus, et al.
March 13, 1996
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In P-559-LU104-RMT, Ms. Funk’s use of Social Security numbers is protested by
Luis Ortiz, a Local Union 104 member and candidate for delegate on the Pride slate.
Mr. Ortiz also charges that Richard Esquivel, secretary-treasurer of Local Union 104 and candidate for delegate on the Reform slate, violated the Rules by allowing Ms. Funk access to local union records in filing her eligibility protest.
In P-539-LU104-RMT, Ms. Funk charges that Mr. Justus and Ms. Edgmon violated the Rules by contacting her employer and falsely accusing her of using employer records to obtain Social Security numbers for her eligibility protest.
Because these protests arise from the same set of facts, the Election Officer has
consolidated them for decision.
These protests were investigated by Regional Coordinator Jonathan Wilderman.
Local Union 104 held its nomination meeting at the local union hall on February 3, 1996. Ms. Funk took extensive notes, including names and Social Security numbers of nominators and seconders as they were stated out loud by Regional Coordinator Wilderman. These notes became the basis of an eligibility protest dated February 5, 1996, which she filed against six members, including Mr. Justus and Ms. Edgmon.
Ms. Funk admits she obtained additional information for her protest from Local
Union 104 records. At the nomination meeting, she did not record Mr. Justus’ Social Security number. On the morning of February 5, she asked to see the local union’s membership list, which includes such information. She states that she did not copy the number from the list, but memorized it and copied it down later. Ms. Funk also asked Local Union 104 Office Manager Vicky Armstrong for dues-payment history on certain members. Ms. Armstrong gave her that information.
The protests of Mr. Justus, Ms. Edgmon and Mr. Ortiz arise from the fact that protest filings are public documents. Therefore, the effect of Ms. Funk’s protest was to make public the information she included, such as Social Security numbers. The protesters contend that Social Security numbers are highly confidential and that this information gives the Reform slate an unfair campaign advantage.
The basis of Ms. Funk’s protest (P-539) is that soon after she made her eligibility protest, Mr. Justus and Ms. Edgmon started contacting Ms. Funk’s supervisor at Southwest Administrators, Sandra White, and accused Ms. Funk of improper conduct with respect to confidential Social Security numbers. Mr. Justus and Ms. Edgmon suggested to Ms. White that Ms. Funk should not have the right to obtain such information from Southwest Administrators. Mr. Justus and Ms. Edgmon admit that they had no basis for accusing
Ms. Funk of using the resources of her employer to obtain this information. However, even after Ms. White investigated their accusations and informed them by telephone and letter that she had cleared Ms. Funk, they called Ms. White again on February 29 to complain that
Bob Justus, et al.
March 13, 1996
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Ms. Funk had falsely accused them by filing a protest over their contacts with Southwest Administrators. They further stated to Ms. White that Ms. Funk’s protest had involved
Ms. White and her office in the protest process.
Ms. Funk alleges that these actions of Mr. Justus and Ms. Edgmon constituted improper retaliation under the Rules. Although Ms. White found no on-the-job wrongdoing, Ms. Funk asserts that Ms. White has nevertheless asked her to refrain from all campaign activity at work, including campaigning “incidental” to work that the Rules would otherwise permit. Article VIII, Section 11(a).
1. Allegations Concerning the Use of Social Security Numbers
The protests of Mr. Justus, Ms. Edgmon and Mr. Ortiz are without merit. “The Election Officer has held repeatedly that the filing of a protest is protected, and does not constitute support for a candidate or campaigning under the Rules.” Kronhert,
P-489-LU843-PNJ (March 8, 1996); Cook, P-357-LU705-CHI (February 16, 1996) (appeal pending); Hoke, P-322-LU89-SCE (January 29, 1996); and Scalf, P-097-LU705-CHI (August 16, 1995). When Ms. Funk filed her eligibility protest, she was engaging in protected activity.
Furthermore, allegations of use of local union resources or employer resources do not transform a protected protest filing into a violation. In cases dealing with local union officials filing eligibility protests using local union resources, the Election Officer has stated, “[t]here are no restrictions concerning the protected right to file protests.” See Kronhert; Cook; Scalf. Moreover, the protections in Article VIII, Section 11 of the Rules with respect to the use of local union and employer resources are directed against campaigning. As previously noted by the Election Officer, filing a protest is not campaign activity. Nor does the Election Officer find that a local union employee is prohibited from providing a member engaged in filing a protest with information regarding the dues record of the challenged employee.
Moreover, in order to be nominated for a delegate or alternate delegate position, a member is required to provide his or her Social Security number. Therefore, for the election process, candidates’ Social Security numbers are not confidential information.
Accordingly, the protests in P-462-LU104-RMT and P-559-LU104-RMT are DENIED.
2. Allegations of Retaliation for Filing Protests
With respect to Ms. Funk’s protest, the Election Officer finds that Mr. Justus and
Ms. Edgmon made their accusations to Ms. White in response to Ms. Funk’s protected action in filing her eligibility protest and the current protest. Those accusations involved Ms. Funk’s job performance and were without basis. They continued even after Ms. White investigated the accusations and cleared Ms. Funk.
Bob Justus, et al.
March 13, 1996
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Under Article VIII, Section 11(f) of the Rules,
[r]etaliation or threat of retaliation by . . . any member of the IBT . . . against a Union member . . . for exercising any right guaranteed by this or any other Article of the Rules is prohibited.
The pattern of accusations made by Mr. Justus and Ms. Edgmon to Ms. White constituted retaliation for Ms. Funk’s protected activity of protest filing. See Thibault,
P-236-LU1150-ENG (December 11, 1995). The Election Officer also does not favor self-help by protesters when a properly filed protest will invoke the jurisdiction and investigatory powers of her office and give effect to the court-ordered process set forth in the Rules. See Passo, P-469-LU705-CHI, et seq. (February 29, 1996) (appeal pending).
Therefore, the protest in P-539-LU104-RMT is GRANTED.
When the Election Officer determines that the Rules have been violated, she “may take whatever remedial action is appropriate.” Article XIV, Section 4. In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.
The Election Officer orders that Mr. Justus and Ms. Edgmon cease and desist from contacting Ms. Funk’s employer with respect to matters involved in the protest decision.
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 & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Bob Justus, et al.
March 13, 1996
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Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 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