July 1, 1996
VIA UPS OVERNIGHT
Bruce Blake
July 1, 1996
Page 1
Bruce Blake
1101 West Road
La Habra Heights, CA 90631
Pat Miraglio, Secretary-Treasurer
Teamsters Local Union 439
1531 E. Fremont Street
Stockton, CA 95201
Certified Grocers
2000 Wilcox Road
Stockton, CA 95205
Bill Rose, Director of Labor Relations
Certified Grocers
2601 S. Eastern Avenue
Los Angeles, CA 90040
Debby R. Hambleton
Rexon, Freedman, Klepetar &
Hambleton
12100 Wilshire Boulevard
Suite 730
Los Angeles, CA 90025
Bruce Blake
July 1, 1996
Page 1
Re: Election Office Case No. P-767-LU439-CSF
Gentlepersons:
Bruce D. Blake, a member of Local Union 848, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election ("Rules") alleging interference with "our rights to communicate with our co-workers about the Union election" at the Stockton facility of Certified Grocers of California ("Certified"). He states that pro-Carey campaign materials that he posted on bulletin boards and left in non-work areas at the facility were not there when he returned several days later. He further states that upon returning he found a stack of fliers that criticized Local Union 439's pro-Carey slate of Convention delegates. Mr. Blake protests the contents of the flier and questions whether it had been prepared and distributed using local union resources. He does not name any respondents.
This protest was investigated by Regional Coordinator Matthew D. Ross and Adjunct Regional Coordinator Victoria Chin.
Bruce Blake
July 1, 1996
Page 1
Mr. Blake is a Certified employee whose duties routinely take him to the Stockton facility. He states that while he was there on May 6, 1996, he spoke with the manager of the night shift for the frozen-deli facility. Mr. Blake explained to him that he was going to post campaign literature for the Teamster election and also was going to leave copies of the Convoy Dispatch newspapers in the break rooms. Mr. Blake states that when he returned to the Certified facility on May 9, 1996, he noticed that the literature he had posted on the union bulletin boards in the Frozen-Deli division, dry grocery warehouse division, and for the transportation employees was missing.
Mr. Blake also states that upon returning, he discovered a stack of fliers entitled "Making Sense!" on a shelf in the drivers' room. The flier criticizes the five Convention delegates that Local Union 439 elected on April 8, 1996. Without naming names, the flier identifies delegates by work site, local union membership history, or nickname. It variously accuses them of being "user friendly" with management, having credibility problems, being inexperienced, and not being dedicated to the local union. Mr. Blake contends that the disappearance of his pro-Carey material, combined with the presence of fliers critical of the local union's pro-Carey delegates, shows interference with the campaigning and communication rights of supporters of Mr. Carey.
In Rodriguez, P-241-LU630-CLA (January 17, 1996), the Election Officer found that the Rules protected the right of members employed by Certified to post campaign materials on union bulletin boards at a Los Angeles facility. An earlier protest filed by Mr. Blake, Miraglio, P-650-LU439-CSF, et seq. (April 3, 1996), extended that right to Certified's Stockton facility.
As explained in Rodriguez and Miraglio, the postings on the bulletin board were protected activity. "The removal or defacement of properly posted campaign literature is a serious violation of the Rules." Amodio, P-1073-LU182/317-PGH (November 20, 1991); Teller, P-945-LU741-PNW (October 14, 1991); Fleeger, P-876-LU988-SOU (September 11, 1991). Thus, the Election Officer finds that the disappearance of Mr. Blake's postings between May 6 and May 9 indicates a violation of the Rules.
However, the Election Officer's investigation did not reveal the identity of the violator or violators. Mr. Blake was unable to produce evidence on this issue. During the investigation, one of the persons interviewed, Local Union 439 member Bill Schrader, stated that he saw the local union's vice-president, Mike O'Brien, remove pro-Carey literature from a local union bulletin board near the facility's shop area. Mr. Schrader contends that he spoke with Mr. O'Brien about it and that Mr. O'Brien said that campaign material should not be posted on local union bulletin boards. Mr. O'Brien, however, denied removing campaign material from any bulletin board and denied the conversation with Mr. Schrader. The Election Officer's representative also inter-viewed Local Union 439 Secretary-Treasurer Pat Miraglio, who stated that he informed local union personnel that members may post campaign literature at the Stockton facility after that right was affirmed in Miraglio.
Bruce Blake
July 1, 1996
Page 1
In view of the conflicting evidence, the Election Officer does not attribute the removal of Mr. Blake's campaign postings to Certified, the local union, any member, or any other individual. That removal, however, was a serious violation of the Rules. To inform members of their posting rights and to warn members and other persons of the serious nature of removing or defacing such postings, the Election Officer will order the posting of an official notice, in the form set out below, explaining such rights and responsibilities. All persons at the Stockton facility are hereby put on notice that interference with posting rights will not be tolerated.
The investigation was also unable to shed light on the removal of the Convoy Dispatch publications that Mr. Blake left in non-work areas. With respect to that material, however, the Election Officer cannot conclude that removal indicates a violation of the Rules. Mr. Blake left those publications for other members to take, and perhaps members did so. The Election Officer has also recognized that materials left in non-work areas may be removed in the normal course of cleaning, and materials that end up on the floor may be swept up. Haefling, P-978-LU135-SCE (October 28, 1991), aff'd, 91 - Elec. App. - 221 (SA) (November 7, 1991). In the absence of any evidence of wrongdoing, the Election Officer finds that further action on this allegation is unwarranted.
With respect to the "Making Sense!" flier, Mr. Blake asks that the Election Officer order: (1) written apologies for certain statements, and (2) a financial disclosure, "[i]n order to insure that no union resources or members dues money was used in the preparation or printing." As noted above, Mr. Blake's protest names no respondents from whom the apologies or disclosure should be ordered.
With respect to Mr. Blake's request for apologies, the Election Officer has consistently held that the Rules “neither prohibit nor regulate the content of campaign literature.” Rogers,
P-518- LU373-SOU (February 21, 1991). Rather, as the Election Officer has stated, “[t]he goal to be protected is free speech.” Newhouse, P-388-LU435-RMT (February 21, 1996). See Landwehr, P-201-LU795-MOI (November 15, 1995); Braxton, P-304-LU623-PHL (May 21, 1991) (“The model for free and fair Union elections is that of partisan political elections . . . The cardinal principle is that the best remedy for untrue speech is more free speech, with the electorate being the final arbiter”).
As to Mr. Blake's request for an order requiring "financial disclosure" in connection with the flier, Article XIV, Section 1 of the Rules places the burden on the complainants “to present evidence that a violation has occurred.” Further, the Election Appeals Master has stated that the protester bears the initial burden of proof to offer evidence substantiating his allegations. In Re: Chentnik, 95 - Elec. App. - 52 (KC) (January 10, 1996). Mr. Blake did not produce evidence that the "Making Sense!" flier was produced using union resources or that it was distributed at Certified using union resources or on union time. The Election Officer's investigation also did not produce evidence of any impropriety.
For the foregoing reasons, the protest is DENIED.
Bruce Blake
July 1, 1996
Page 1
Although the protest has been denied, the Election Officer finds that the incidents of the described in the protest may be avoided if members are made more aware of the Rules in this regard. Therefore, the Election Officer orders Local Union 439 to post official notice informing members and other persons of the right to post campaign material on local union bulletin boards and "that the removal, defacement or destruction of campaign literature . . . of IBT members constitutes a most serious violation of the Rules . . ." Teller (wherein the former Election Officer ordered a similar posting when campaign materials were removed by unknown persons). In so doing, the Election Officer is not finding that Local Union 439 engaged in misconduct.
The Election Officer orders Local Union 439 to post a copy of the attached notice on each local union bulletin board at the Stockton facility of Certified Grocers of California within five (5) days of the date of this decision. Within five (5) days of the completion of posting, Local Union 439 shall file an affidavit with the Election Officer demonstrating compliance with this posting requirement.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).
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
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
Matthew D. Ross, Regional Coordinator
Victoria Chin, Adjunct Regional Coordinator
NOTICE TO TEAMSTER MEMBERS
FROM
BARBARA ZACK QUINDEL, ELECTION OFFICER
You have the right to participate in campaign activities on behalf of candidates for International Officer in the IBT.
You have the right to post campaign material on union bulletin boards since such bulletin boards have been used in the past for similar postings.
The Election Officer has found that properly posted campaign materials have been removed by a person or persons unknown.
No member is to interfere with the posting of campaign material. Members shall not remove or deface any campaign material posted on the bulletin boards. Any such activity is a serious violation of the Election Rules.
Any protest you may have regarding your rights to engage in campaign activities or interference with those rights under the Rules should be filed with the Election Officer within the time period prescribed by the Rules.
_________________________
Barbara Zack Quindel
Election Officer
This is an official notice and must remain posted for 30 consecutive days from the day of posting, and must not be altered, defaced or covered by any other material.