IN RE: ROME ALOISE and,
HOFFA-KEEGEL 2011, Protestors.
Protest Decision 2010 ESD 22
Issued: August 27, 2010
OES Case Nos. P-008-071210-FW
& P-011-071410-FW
Rome Aloise, member and principal officer of Local Union 853 and president of Joint Council 7, timely 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 Lucio Reyes, principal officer of Local Union 601 and candidate for IBT vice president for the West region, violated the Rules in several respects, including improper use of union resources, coercion and intimidation, attempted circumvention of campaign contributions limits, improper inducement to sign accreditation petitions, and retaliation for exercise of political rights.
Hoffa-Keegel 2011 timely filed a pre-election protest alleging that Reyes is aligned with the Gegare campaign and that the violations alleged by Aloise require a remedy against both Reyes and the Gegare campaign.
These protests were consolidated for investigation and decision. Election Supervisor representatives Christine Mrak, Rochelle Goffe, and Michael Miller investigated these protests.
Findings of Fact
Local Union 601's principal office is in Stockton, California; it maintains a satellite office in Yuba City, some 90 miles to the north. The local union's membership ranges between 6,000 and 7,000 members during the period July through October annually, the peak of the agricultural season. During the balance of the year, the membership drops to approximately 2,800. The bulk of the membership is employed in agricultural canneries, although the local union represents some non-agricultural bargaining units as well. Roughly half of the members speak Spanish as a first language.
Respondent Lucio Reyes has been principal officer of Local Union 601 continuously since 1992. He is a candidate for re-election to that office in elections scheduled to take place this Fall. Further, he is a candidate for local union delegate and for IBT vice president for the West region.
In addition to Reyes, the Stockton office is staffed with 3 business agents: Reyes' son, Juanlucio Reyes; Paul Montano; and Maria Ashley Alvarado, who also serves as the local union's president. The balance of the Stockton staff consists of officer manager Patty Shock, TITAN operator Delia Perez, and office clerical Adrianna Verdin. The Yuba City office is staffed by business agents Burl Hammons and Rosa Carillo and office clerical Magdalena Navarro.
Work hours for all staff in both offices are from 8 a.m. to 5 p.m. weekdays with 1 hour for lunch and 2 breaks of 15 minutes each; in addition, business agents often work evening hours to service members who work during that period. The local union has no compensatory time policy, so all staff are required to be in their respective offices at 8 a.m. on weekdays. Reyes convenes staff meetings at that hour 2 to 3 times per week in the Stockton office; Yuba City staff members attend these meetings by telephone link. The meetings typically last 15 to 60 minutes, but occasionally run up to 1½ hours.
Local Union 601 is a member of Joint Council 7, of which protestor Aloise is president. Aloise filed his protest after business agent Alvarado and clerical Verdin from the Stockton office, business agent Hammons from Yuba City, and local union trustee Ted Parmentier contacted him with complaints about Reyes. Aloise's protest, dated July 11, 2010, alleged the following Rules violations:
- Reyes, who had self-declared as a candidate for IBT Vice-President, "has held numerous staff meetings and has threatened directly and indirectly the jobs of various officers and business agents of Local 601 if they did not produce signed Candidate Petitions for him and/or contribute to his campaign."
- Reyes "has offered to launder campaign funds by telling staff that he would reimburse them any money that they contributed to his campaign."
- Reyes "has ordered the office staff of Local 601 to perform activities and tasks while they were on the payroll of Local 601, and while they were using Local 601 computers and materials."
- Reyes "has ordered business agents and staff to go to their various job sites where they are the representatives, in order to get the Candidate Petitions signed for his candidacy."
- Reyes, "in order to obtain signatures of members working at Diamond Walnut, has told them that if they are unlawfully in this country that he would get them their 'papers,' but only if they signed the Candidate Petition. This happening while on Union paid time."
Aloise's protest further stated that "[t]he members who contacted me are fearful of losing their jobs at Local 601, and also have indicated to me that they are also fearful that physical harm may come to them for disclosing violations of the Election Rules and for running as delegates and alternate delegates to the IBT Convention. * * * In an effort by the officers and business agents to protect themselves further, they have declared themselves candidates for either delegate or alternate delegate against Mr. Reyes, and plan on informing him by facsimile and hand delivered letter, either today [July 11, 2010] or tomorrow. They believe that there will be immediate retaliation and are very fearful of the consequences of coming forward with this information." (Original emphasis.) Aloise attached to his protest a hand-written "authorization," signed by Alvarado, Parmentier, Hammons and Verdin, by which they gave their consent to Aloise "to file a complaint with the election officer on our behalf for issues and concerns we have regarding and [sic] upcoming delegates election at Local 601."
Hoffa-Keegel 2011 adopted the allegations of the Aloise protest by reference. In addition, the Hoffa-Keegel 2011 protest alleged that all of the Rules violations committed by Reyes were done on behalf of Fred Gegare, Brad Slawson, and Fred Zuckerman and should be attributed to them as well.
Our investigation has found evidence: 1) that Reyes engaged in campaign activity on union time and urged or directed others to do the same; and 2) that union equipment (e.g., computers, phones, copiers) was used by Reyes (or at Reyes's direction) for campaign purposes. Officers and staff at Local Union 601 ultimately complained to their Joint Council president about this activity and this protest followed. Our investigation also gathered evidence on the alleged Rules violations based on allegations of improper campaign finance activity, misleading campaign statements, and retaliation. The findings of fact relating to all of the allegations are set out below.
A. Alleged use of union resources to campaign
On or about January 6, 2010, Reyes circulated a memo to staff in Stockton and Yuba City advising "of the following procedures we need to follow for the 2010 election":
Campaigning is not to be done during working hours. No fundraising of any kind is allowed during working hours. No office equipment will be used for any type of election materials.
Investigation showed several instances in which Reyes conducted campaign activity using union resources. The activity occurred from at least early June 2010 up to shortly before this protest was filed in July 2010. The specific activities included Reyes soliciting support for his own candidacy during working hours; the organization and execution of accreditation petition drives during working hours and with union-paid staff; and the use of union equipment in aid of campaigning.
Witnesses told out investigators that, from early June 2010, Reyes wanted business agents to circulate accreditation petitions for his candidacy for IBT vice president, and that he made that a frequent topic of his morning Local Union 601 staff meetings. Reyes presided over these meetings in person at the Stockton office and Yuba City personnel attended by phone. Thus, Alvarado told our investigator that during June and early July, Reyes was focused on trying to get as many petition signatures as possible. Alvarado stated that during staff meetings Reyes spoke often and at length about his campaign, urging business agents and staff to get 100 signed petitions each, and asking each how many he or she had collected.[1] Alvarado and Verdin told our investigator that Reyes often got upset when staff told him that they had collected few or no signed petitions. Verdin estimated that Reyes' campaign monologues lasted 10 to 30 minutes in each staff meeting held in June or early July. Perez, the Stockton office TITAN operator, said that Reyes spent 5 to 10 minutes per meeting stressing to staff the need to gather petition signatures.
Hammons, of the Yuba City office, stated that Reyes spoke in every staff meeting in June of the need to gather accreditation petition signatures; Reyes urged staff to take vacation time to go to the plants and get signatures. Carillo, a Yuba City business agent, kept notes on some of Reyes' campaign talks during staff meetings. From her review of those notes, Carillo was able to tell our investigator that, on June 17 and 22, Reyes told the staff that it was very important to get signatures. On June 22, Reyes stated that each staff member needed to produce 100 petitions or if not, according to Carillo's notes, "it's going to be our jobs." Reyes asked how many petitions each had. Navarro told him she had 2; Rosa Carillo said she had 3; the remaining staff had none.
Stockton office manager Shock stated that at many of the staff meetings in June and early July Reyes discussed accreditation petitions. She said that he thanked staff members during the meetings for getting them completed, advised staff of the deadline for completing petitions, and took "inventory" regarding which staff members collected petitions and how many they collected.
Juanlucio Reyes is a Stockton office business agent who is also Reyes' son and campaign manager. He told our investigator that in mid-May Reyes announced his candidacy for IBT office during a staff meeting; at that time, Reyes asked the staff if they would support him, asking each individually in the presence of the others for his/her support. All agreed to support Reyes. Juanlucio Reyes also told our investigator that, starting in June, Reyes stated often at staff meetings that it was important to get petitions signed; according to Juanlucio, Reyes gave "words of encouragement" (Juanlucio's phrase) that "if you don't work on it you might not keep your job." Juanlucio explained that Reyes' words were not a threat but rather reflected the reality that appointed business agents may be replaced if the person responsible for their appointment is not elected.
Against the evidence provided by Alvarado, Verdin, Perez, Hammons, Navarro, Carillo, Shock, and Juanlucio Reyes, only Reyes denied that he used staff meetings to urge business agents and other staff to circulate accreditation petitions for him and to obtain signatures. Reyes stated that he frequently told staff members not to use union resources for campaigning. Montano, the remaining person present for these meetings, told our investigator that he did not recall Reyes speaking about petitions at staff meetings.
Evidence showed that Reyes conducted campaign activity on union-paid time outside of the morning staff meetings. Thus, during work hours and in the office on June 28, Reyes' asked the Stockton business agents (Alvarado, Montano, and Juanlucio Reyes) about their progress in obtaining petition signatures. When Montano stated he was waiting to hear back from the stewards, Reyes replied that they should keep a notebook of names and phone numbers of stewards and call them daily to push them. The business agents said that Reyes showed them a stenographer's notebook he said he used to keep track of the number of petitions he gave each person and how many had come back. The next afternoon, June 29, again on work time, Alvarado stated Reyes called the 3 Stockton business agents into his office. He was upset at the lack of response in getting petitions signed. Noting that the self-imposed end of July deadline for returning signed petitions was approaching, Reyes asked Alvarado and Montano how many they had; each said none. When Montano said he was going out that night to get petitions signed, Reyes yelled at him: "You're not doing your job. It should have been done yesterday. You need to show leadership and get the job done or I don't need you. You don't have any brains in your head. You're a baby. I have to hold your hand." Questioned about this incident, Juanlucio Reyes did not deny that the incident occurred, but offered a different interpretation of it. He told our investigator that Reyes' emotions can change quickly and that he can overreact. Juanlucio told our investigator that he believes Reyes properly criticized Montano because Montano often needs correcting; the criticism of Montano's lack of leadership concerned Montano's stewards "breaking the rules in the shop and we can't jeopardize the election by breaking rules." Reyes denied using his authority as principal officer to compel any staff member to campaign on union time, including threatening them with job loss if they did not produce signed petitions. He also denied keeping a notebook of petition circulation.
Investigation showed that Reyes also authorized or directed staff to campaign on union-paid time out of the office. Alvarado stated that on July 8, Reyes directed Alvarado to go to the Eckert plant in Escalon, a 1½ hour drive from the Stockton office, to circulate petitions. According to Alvarado, Reyes released her from work at 4 p.m. to make the drive. She asked Reyes if she should tell officer manager Shock to deduct an hour's pay from her time; he told her no and no deduction has been made. Reyes also told Alvarado that the canneries would soon ramp up for the season and he wanted her to circulate petitions during afternoon shift change, between 2:00 and 2:30 p.m. When she pointed out that shift change was during her work time, he replied that they were running out of time to get the petitions done and needed to hit all the shifts. He told her to take 3 hours off, saying, "Don't worry, I'll compensate your hours later."
Reyes conducted steward training meetings twice in June. On June 5, he held a 3 hour meeting for about a dozen stewards at the Yuba City hall, followed by dinner at an area restaurant. Between the end of the training meeting and the dinner, Hammons observed Reyes printing copies of the accreditation petition form on the union fax machine. Reyes then gave copies of the petition to a steward who was not attending the dinner. Reyes distributed the remaining petitions at the dinner. Carillo corroborated Hammons' statement. In addition, Carillo stated that from 5:00 to 5:30 p.m. (when she left), Reyes addressed the dinner, speaking only about circulating the petitions. Navarro corroborated Carillo concerning Reyes' campaign speech at the dinner. The dinner was paid for with union funds. Reyes denied copying the petitions on union equipment. However, he had no record reflecting commercial copying of the petitions.
Alvarado stated that a second steward training session was held at the Stockton hall on June 12. At the conclusion of the session, the group adjourned to an area restaurant, where Reyes addressed them about his campaign. Reyes gave the stewards packets of petitions, explaining how the petitions were to be completed and where they were to be sent. About 30 stewards and local union staff attended this dinner, which was paid for with the union credit card.
Navarro stated that in early June, Reyes instructed her to translate to Spanish Fred Gegare's 2-page letter to James Hoffa in which he announced his candidacy. She used the union computer and about 4 hours of work time to do so. Carillo assisted her. This letter was provided to us as an electronic document. The document properties indicate that it was created June 3, 2010. Verdin told our investigator that in the last week of June she heard Reyes instruct Perez to translate to Spanish instructions on how to access the Gegare campaign website and download petitions. Verdin stated that Perez did so during her work hours immediately after a morning staff meeting and that she assisted Perez with some of the translation. Verdin also stated that Perez typed a list of names and home addresses of local union staff on work time. Perez initially told our investigator that she prepared, in handwriting, a translation of instructions for circulating the petition and had done that work on her lunch hour. She subsequently provided a more specific, and different, account. She said that Reyes had instructed her to do the campaign work, that she did some of it on union-paid time on union equipment and had done additional work by hand on her lunch hour. She recalled preparing the translation and a paragraph-long set of instructions on how to access the accreditation petition form on the Gegare website by typing on the union computer. Perez also used a union computer to type a list of names and addresses of local union staff and executive board members for the Gegare campaign, and did so on work time. Alvarado stated that after the protest was filed she heard Reyes instruct Perez to delete the translation and the list from her computer. Reyes denied that he instructed Perez to do campaign work on union-paid time or to delete such work from the union computer. Perez denied that Reyes told her to delete the campaign documents from her computer, stating that she simply failed to save the documents when she initially prepared them.
Evidence was presented that while at the Yuba City stewards meeting on June 5, Reyes instructed Carillo to add Reyes' name to the Gegare accreditation petition. She did so during work time at the typewriter at Navarro's workstation. Carillo's notes substantiate this action. In addition, some petitions submitted to OES show that Gegare's name was printed by a laser or inkjet process while Reyes' name on the same petitions was typewritten.
Evidence was also presented that Reyes used union telephone equipment for campaign activity. In addition to the frequent staff meetings that the Yuba City staff attended by phone during which Reyes spoke at length about his campaign, he called Navarro or Carillo at work on the union phone on June 29 and 30 and July 1, 7 and 8 to urge them to turn in signed petitions. Notes Navarro and Carillo maintained substantiated the calls of June 29 and 30. In response to Reyes' requests, Navarro mailed petitions to Reyes at the Stockton office using union-paid postage and envelope.
Finally, Navarro and Hammons told our investigator that on June 29, Reyes met them at a Yuba City area restaurant for a working breakfast to prepare for an FMCS mediation session. Navarro, an office clerical, had no role in the mediation or the preparation for it. She stated that Reyes told her to come to the breakfast to give him her signed petitions. The breakfast took place during work hours and was paid for with union funds. A second breakfast was held on July 8 following early morning campaigning at the Diamond Walnut plant in the Stockton area. Present at this breakfast were Reyes, Alvarado, Juanlucio Reyes, and Reyes' son-in-law Jonathon Hernandez (an IBT organizer). The breakfast took place during work hours and the Diamond Walnut campaigning was discussed. The meal was paid for with Reyes' personal funds. However, no pay or vacation time was deducted from the compensation of local union staff members.
Candidates have been instructed to make a single submission of accreditation petitions to OES for review when the candidate believes there are sufficient signatures collected: OES does not collect and hold petitions on a "rolling" basis. Nevertheless, some accreditation petitions bearing the names of Gegare and Reyes were submitted to OES prematurely. While they have not been considered yet for accreditation, and the originals were returned to the Gegare campaign, our records reflect that 58 petition pages were submitted with the names of Gegare and Reyes, bearing 646 signatures from Local Union 601 members, 83 signatures from Local Union 948 members, three signatures from Local Union 439 members, and two signatures from locals not within Joint Council 7. Most petitions had no date; the few that had legible dates were all dated before July 12, 2010.
B. Alleged subversion of campaign contribution limits
Evidence was presented that Reyes used union staff meetings to solicit campaign contributions. Witnesses stated that on July 1, at the conclusion of a staff meeting in Reyes' office and after the Yuba City staff had hung up, Reyes continued to address the assembled Stockton staff regarding campaign contributions. Alvarado stated that Reyes told the staff that each could contribute $2,000 to his campaign and could do so in installments. Verdin, Perez and officer manager Shock all stated that Reyes told Perez that if she could not afford the contribution, either he would reimburse her for the contribution or someone such as himself who had made the maximum contribution could make a contribution in her name. Reyes denied to our investigator that he solicited campaign contributions during staff meetings. He also denied stating that a contribution could be made in another member's name. He stated that, in response to a question about contributions after a meeting, he merely told staff that they could contribute to the campaign if they wanted.
Reyes and Juanlucio Reyes denied that Reyes made these statements. Montano, the remaining person present for these meetings, told our investigator that he did not recall Reyes speaking about campaign contributions at a staff meeting.
A review of the OES Campaign Contribution and Expense Reporting System ("CCERS") shows, to date, no reported contributions from Reyes, or any of the Local Union 601 members discussed in connection with this investigation.
C. Alleged misleading campaign claims
Alvarado stated that in the early morning of July 8, she, Reyes, Juanlucio Reyes, and Reyes' son-in-law Jonathan Hernandez (an IBT organizer) were at the front entrance of the Diamond Walnut plant gathering petition signatures. Alvarado observed Reyes approach Spanish-speaking members, many of whom may be undocumented workers, and ask them to sign English petitions which he described to them in Spanish, as follows: "This is so I can sit with Obama and pass immigration laws so undocumented people here can stay with their families and become legal." At Reyes' direction Alvarado made a similar pitch. She stated members signed the petition thinking it was for immigration reform.
Reyes denied the allegation. He stated he came late to the petition solicitation and spoke to only a few people about things other than the petition. He acknowledged that he has told members that he supports immigration law reform and amnesty for undocumented workers, and that the petition would allow him to run for International VP so he could meet with Obama and legislators to help get immigration reform passed which would help them stay in this country and keep their families together. Reyes denied that he ever told any member that he could get them papers to make them legal. Juanlucio Reyes stated he did not hear his father say anything about undocumented workers other than Obama and legislators were working on the problem.
D. Alleged intimidation, coercion and threatened retaliation for exercise of political rights
On July 12, 2010, the same day the Aloise protest was filed with our office, a typewritten letter signed by Alvarado, Parmentier, Hammons and Navarro was hand-delivered to Reyes. The letter stated, "[w]e the undersigned are running for Delegates and Alternate Delegates against you for the Delegates' Election 2011, in accordance with the International Constitution. We hereby caution you to abide by all the rules and regulations governing this election."
Investigation showed that, at about 8 a.m. on July 12, 2010, Alvarado handed Reyes the announcement of candidacies of Alvarado, Parmentier, Hammons and Navarro. When he received it, Reyes immediately went to the office of office manager Shock and called in TITAN operator Perez. According to Perez, Reyes announced, "We're on break," and then began to discuss Alvarado's letter. Shock told our investigator that Reyes announced to her and Perez that Alvarado and the others were running against "us," although neither Shock nor Perez were or would become candidates in the delegates and alternate delegates election. Reyes told both that he was waiting to hear from the local union's attorney, Ken Absalom, regarding how to handle the situation.
Perez was then dismissed from the meeting and Verdin, one of the four who had authorized Aloise to file the protest, was called in. According to Verdin, Reyes showed her the Alvarado-Parmentier-Hammons-Navarro letter of candidacy and told her that Alvarado was running against him. Although Verdin knew this information already, she feigned surprise. Shock told Verdin that Alvarado's letter meant that "she'll run against Lucio in the local union officer election" too. According to Verdin, Reyes appeared upset. He said he would find a way to "get rid" of Alvarado, Parmentier, Hammons and Navarro. He said he called attorney Absalom to get his advice. In the meantime, Reyes instructed Verdin not to talk to Alvarado and the others at all about the election, and not to discuss the election with anyone else except during lunch and break. Verdin returned to her desk.
Minutes later, Verdin was called to Reyes' office, to which Shock and Reyes had moved. By this time, Reyes had received the Aloise protest from our office by email, with the signed, handwritten "authorization" attached to it. Verdin was one of the authorizers. Shock said she was surprised to see Verdin's name on the authorization and thought that Aloise had intended to list the name of Magdalena Navarro from the Yuba City office instead. Reyes looked at Verdin and said, "Tell me the truth. Is this your signature?" Verdin replied that it was. Reyes then responded, "Oh shit!" Verdin told him that if he had any questions he should contact the Election Supervisor. Verdin then left the office. Later that day, Reyes instructed that Verdin was no longer to open mail addressed to him; instead, she was to date-stamp the unopened envelopes and place them on his desk. This change in her duties did not affect Verdin's pay or status within the office.
At about 4:15 p.m. on July 12, a man claiming to be a carpet cleaner arrived at the Stockton office of Local Union 601. He wore an Enterprise Car Rental shirt and arrived in an SUV with no logo. He identified himself to Verdin, the office clerical who greeted him, as "Jesus" and said he was there to see Reyes. Verdin told our investigator that he looked intently at her and had "an attitude." Reyes took the man back to his office and closed the door. While the two were in Reyes' office, Verdin confirmed with Shock, who normally arranges for carpet cleaning, that she had not contacted a cleaning service. After some time, Jesus emerged from Reyes' office with a pad and pen he had not possessed when he arrived, did no measuring or inspection of the carpeted areas of the building, and again looked intently at Verdin before leaving the premises. These facts, along with Reyes' statement that he intended to "get rid" of the employees who opposed him, led Verdin to suspect that Jesus might intend to do her harm. Verdin spoke with Alvarado about Jesus. After work, Verdin and Alvarado went to the police to report the suspicious behavior. Absent a direct threat, however, the police declined to investigate.
Jesus Rodriguez, the man who had identified himself to Verdin, told our investigator that he is a part-time mechanic at Enterprise and that he has a personal business license for "Express Carpet Cleaning." Internet research revealed a carpet cleaner by that name at a Kimball Hill Circle address in Stockton. However, the phone number shown for Express Carpet on yellowpages.com is listed to "S M Huerta," not Express Carpet or Rodriguez, and it is not the phone number at which our investigator reached Rodriguez. While Rodriguez submitted a bid for the carpet cleaning job, he refused to give any other information to our investigator about his business or his bid. On July 13, the local union received 2 additional bids for carpet cleaning on July 14. Of the 3 bids, Rodriguez's bid was the highest and he was not awarded the job. Verdin has not seen Rodriguez since July 12. Reyes told our investigator that he knew Rodriguez from the gym where both work out.
At the issuance of this decision, all staff who authorized the filing of this protest and all staff who have been nominated for delegate or alternate delegate remain employed by the local union with no change in their salaries, benefits or status.
Analysis
The matters investigated will be analyzed in the order presented in the preceding section.
A. Impermissible use of union resources
The Rules prohibit campaign activity on time paid for by the union. Article VII, Section 12(b). They also prohibit use of union funds, facilities, equipment and personnel to assist in campaigning. Article VII, Section 12(c). We find that Reyes actually knew the substance of these prohibitions because he distributed to staff a memo reminding them that campaigning and campaign fundraising could not occur on work hours and that office equipment could not be used to prepare campaign materials.
Despite this knowledge, Reyes committed numerous violations of these prohibitions in the following particulars:
- Using frequently-held staff meetings to discuss the needs of his campaign, in particular the need to circulate and obtain accreditation petitions;
- Directing staff to circulate accreditation petitions on time paid for by the union;
- Directing staff to translate campaign materials from English to Spanish on time paid for by the union and with union equipment;
- Soliciting campaign contributions during staff meetings on union time in the union hall;
- Inquiring of staff in the union hall on work time about their progress in collecting petition signatures;
- Using union equipment to reproduce petitions;
- Directing staff on union time to use union equipment to add his name to petitions;
- Directing staff on union time to use union equipment to prepare a list of names and addresses for a campaign purpose;
- Using union funds to pay for meals during which he addressed those in attendance concerning his campaign;
- Directing a staff member to attend a meeting where the sole purpose of that employee's presence was to deliver to him signed accreditation petitions;
- Directing staff in Yuba City to mail signed accreditation petitions to him at the Stockton union hall;
- Using union telephone equipment on union time to inquire of staff employees concerning the status of their efforts to collect accreditation petitions
In finding that Reyes committed the foregoing acts, we credit the overwhelming evidence presented by Alvarado, Hammons, Navarro, and Verdin. We acknowledge that Alvarado, Hammons and Navarro are candidates opposing Reyes in the election for delegates and alternate delegates and stand to benefit from a finding against Reyes. Their allegations were corroborated, however, in several important instances by persons who either are Reyes loyalists, including his son and campaign manager Juanlucio and officer manager Shock, or have stated no partisan preference, such as Carillo and Perez. In contrast to this evidence, Reyes' denials of improper activity ring hollow.
Accordingly, we GRANT this aspect of the protests.
B. Subversion of campaign contribution limits.
We find that Reyes offered to reimburse Perez for any campaign contribution she made. Such an arrangement, if carried out, would represent a serious violation of the Rules. There is no reason for anyone to make a contribution and have that amount reimbursed by a third party other than to conceal the true source of the contributed funds.
We addressed a similar issue previously. In Certain Campaign Contributions by Officers and Employees of Local Union 853, 2006 ESD 341 (August 23, 2006), appeal withdrawn, 06 EAM 66 (September 25, 2006), we found that a campaign fund maintained by Rome Aloise at Local Union 853 violated the Rules because, among other things, it used money from third parties to reimburse persons for their campaign contributions. The contributions had been reported under the name of a member eligible to contribute, but that false reporting hid the true source of the funds. By using such a scheme, a candidate could evade limitations on sources of funds and individual contribution limits.
Had Reyes carried out the scheme with respect to Perez, he would have violated the Rules. There is no evidence, however, that Reyes actually carried out the scheme. Accordingly, we DENY this aspect of the protests. In doing so, we remind Reyes and all other candidates that OES regularly investigates and audits the campaign contributions and expenditures of candidates for International office and has the authority to do so with respect to candidates for delegate and alternate delegate. Proof that such a scheme has been consummated by any candidate will be dealt with firmly.
C. Misleading campaign claims
The protests alleged that Reyes "in order to obtain signatures of members working at Diamond Walnut, has told them that if they are unlawfully in this country that he would get them their 'papers,' but only if they signed the Candidate Petition." There is no evidence that Reyes engaged in a quid pro quo to obtain immigration papers for undocumented workers in exchange for their signatures on accreditation petitions. Not even the accusing witness for the Diamond Walnut campaigning, Alvarado, supports this allegation. Alvarado, Reyes, and Juanlucio Reyes agree that a pitch Reyes (and Alvarado as well, at Reyes' direction) made to Diamond Walnut members to gain their petition signatures was that Reyes, if elected, could sit with President Obama to convince him of the need for immigration law reform and amnesty for undocumented workers. It has long and often been held that the Election Office does not regulate the content of campaign speech, whether written or oral. Claims made in campaign rhetoric, even aggrandized or defamatory assertions, are permissible under the Rules. Accordingly, we DENY this aspect of the protest.
D. Intimidation and retaliation
The Rules protect the right of eligible IBT members to run for delegate, alternate delegate, and International office. As the Election Officer has stated:
Since the Rules protect campaign activity as a personal right of members, the exercise of that right cannot be interfered with by labor organizations or employers, including the IBT as an employer.
Hoffa, P812 (August 16, 1996). Therefore, the IBT or any local union is "prohibited from using the electoral preferences or activities of its employees as factors in any employment-related decision." Pope, 2000 EAD 39 (October 17, 2000), aff'd, 00 EAM 11. Article VII, Section 12(g) of the Rules states this protection: "Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or any 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 is prohibited."
The Rules also protect the right of members to file protests. Thus, Article XIII, Section 1(a) provides:
Any member … may file a protest with the Election Supervisor alleging noncompliance with these Rules … free from any direct or indirect retaliation or threat of retaliation by any Union officer, member, candidate or independent committee, or by any other person or entity for such filing.
To prevail on a claim of retaliation, "the evidence must demonstrate that 1) the alleged victim engaged in activity protected by the Rules, 2) the charged party took adverse action against the alleged victim, and 3) the protected activity was a motivating factor in the adverse action." Cooper, 2005 ESD 8 (September 2, 2005). The Election Supervisor will not find retaliation if he concludes that the union officer or entity would have taken the same action even in the absence of the protestor's protected conduct. Gilmartin, P32 (January 5, 1996), aff'd, 95 EAM 75. See Leal, P51 (October 3, 1995), aff'd, 95 EAM 30; Wsol, P95 (September 20, 1995), aff'd, 95 EAM 17.
Here, Alvarado, Hammons, Parmentier, Navarro, and Verdin satisfy the first element of their retaliation claim because they engaged in activity protected by the Rules: Alvarado, Hammons, Parmentier and Navarro announced their candidacies for election to delegate and alternate delegate. Further, Alvarado, Hammons, Parmentier, and Verdin authorized Aloise to file a protest on their behalf.
With respect to the second element - adverse employment action - we have previously held that discharge, removal from appointed position, and the transfer of membership from one representative to another can satisfy the adverse action element of a retaliation claim. Williams, 2001 EAD 152 (February 8, 2001); Thornsberry, 2001 EAD 172 (February 16, 2001); and Bundrant, 2005 ESD 19 (October 25, 2005), aff'd, 05 EAM 4 (November 15, 2005). Here, we find that none of the 5 has suffered adverse action.
We do find that Reyes threatened to "get rid" of the 4 candidates for declaring their candidacies, and extended that threat to Verdin for authorizing that the protest be filed. We construe Reyes' words as a declaration of intent to discharge the employees rather than to cause them to suffer other harm. We reach this conclusion because of his stated intention to contact the local union's attorney for advice on how to accomplish his goal. We are not dissuaded from this conclusion by the fact that Parmentier as a local union trustee was not an employee who could be discharged. Reyes had the authority of the employer over the remaining 4 and was speaking in broad terms when stating that he would get rid of them.
A threat to get rid of employees of a local union based on political opposition or protest activity during an active campaign period, made by that union's principal officer with authority to hire and fire business agents and clerical staff, has the purpose or effect of inhibiting the exercise of protected activity. Accordingly with respect to candidacy, a threat is anti-democratic because it suppresses political opposition. With respect to protests, a threat inhibits the reporting of suspected Rules violations, which undermines the goal of a free and fair election.
We find that Reyes violated the Rules by threatening to get rid of Alvarado, Hammons, Parmentier, Navarro and Verdin for their protected activity. Accordingly, we GRANT this aspect of the protests.
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.
To remedy the impermissible threat of retaliation Reyes made against Alvarado, Hammons, Parmentier, Navarro and Verdin, we order Reyes to cease and desist from retaliation and threats of retaliation for conduct that is protected by the Rules. This bars any adverse action on account of those individuals exercising their rights to compete as candidates in the election for delegates and alternate delegates, or on account of any election protest activity.
We find that Reyes used union resources to support his petition drive across the jurisdiction of Local Union 601, that this activity occurred from at least early June through July 8, 2010, and that it involved multiple and repeated acts of union-funded support. Each such act aimed to generate support for Reyes' candidacy for International office. The immediate impact of these acts included the following: 1) diverting member-funded resources from grievance administration and contract enforcement to campaign activity on behalf of Reyes; 2) conveying to members their local union supported the Reyes candidacy; and 3) granting advantages to Reyes that were not granted to others by promoting his candidacy and obtaining petition signatures on his behalf.
The campaign of Fred Gegare also stood to benefit from Reyes' petition drive, because the petitions Reyes circulated listed his name beneath that of Gegare.
These violations require remedies from Local Union 601 and from the Reyes and Gegare campaigns.
We order Local Union 601 - and Reyes in his capacity as principal officer of the local union - to cease and desist from providing union support to any candidate, whether for International office or for delegate or alternate delegate to the IBT convention. Specifically, we order the local union, its officers, agents, chief stewards, stewards, and members to refrain from any campaign activity on union- or employer-paid time (except vacation or paid lunch or break time), and from using union- or employer-provided facilities, equipment, and other resources for such campaign activity (except as permitted by the Rules in employer parking lots).
We further order Local Union 601 to post the notice attached to this decision on all bulletin boards on which union notices are posted at each and every worksite under the jurisdiction of either local union and to maintain such posting through December 15, 2010. The notice shall be posted in both English and Spanish. The purpose of this notice is to educate the members of each local union of the Rules' requirements, to notify them that their local union's principal officer violated the Rules, and to inform them that their local union cannot and does not support any candidate or slate of candidates for International office. A widely posted notice will provide a deterrent to further misuse of union-provided resources to campaign. These notices must be posted within 5 business days of the date this decision issues. Within 3 business days thereafter, Reyes must file an affidavit of compliance with our office attesting that the notice was posted as required, identifying the bulletin board sites at each worksite on which it was posted and the name and title of the individual with responsibility for posting the notice at each site. Once posted, no notice may be defaced or covered up and must be maintained for the posting period. Notices that are defaced must be replaced promptly.
To date, no accreditation petitions submitted by Gegare or Reyes have been accepted under Article X of the Rules for checking and validation. OES will, however, reject any accreditation petition submitted under Article X, whether an individual candidate petition or a slate accreditation petition, that lists Reyes as a candidate and that contains the signature of any members of Local Unions 439, 601 or 948, unless the submitting candidate can demonstrate that the signature was collected after July 12, 2010. This includes any petition listing Gegare as a candidate to which Reyes' name was added. We order this remedy because of the pervasive use of union-funded time, facilities, equipment, and other resources to obtain the signatures and the substantial likelihood that such signatures were obtained through the impermissible use of these resources. In the event that Reyes seeks accreditation petition signatures from members employed under the jurisdiction of the identified local unions for himself or a slate of which he is a member following the date this decision issues, he must do so using petitions that are readily distinguishable, by distinctive format and dating, from those we find invalid here.
The invalidation seeks to eliminate any benefit Reyes (and the Gegare campaign) would have obtained from those accreditation petitions. The remedy does not, however, undo the benefit Reyes (and the Gegare campaign) obtained from the campaign activity associated with the petition circulation, much of which occurred using union-funded time, facilities, equipment, and other resources. Thus, union employees on union time and using union equipment, acting at Reyes' direction, sought petition signatures and exhorted stewards to obtain them as well. Such campaign activity calls for a remedy addressed to the campaign message communicated to members at stewards workshops and at worksite canvassings through the use of union resources that supported the Reyes and Gegare campaigns for International office. Under the circumstances presented here, we find that the best tool available to us to level the playing field between the Reyes campaign and other candidates for International office is to require the Reyes and Gegare campaigns to pay the expenses of a mailing to all members of Local Union 601. We so order.
The remedial mailing we order here is available to any candidate for IBT General President (other than Gegare) or, if a member of a slate for which a slate declaration form has been filed with our office, to the slate that includes the candidate for IBT General President (other than Gegare). Notice of intention to access the remedy ordered here may be given at any time but no later than November 15, 2010 by email to Reyes with copy to our office. The mailing may be completed at any time but no later than December 1, 2010. We place these time limits on the availability and accomplishment of the mailing because the violation we find here took place in the context of accreditation petition canvassing and we limit the remedy to the period during which accreditation petitions may still be circulated. As the Rules permit submission of accreditation petitions through December 15, 2010 (Article X, Section 3), a mailing occurring up to and including December 1 may still impact that effort.
Each candidate for IBT General President (other than Gegare) or slate that includes such a candidate is entitled under the remedy we order here to a mailing separate from the mailing granted to any other candidate for IBT General President or his/her slate. The expense for which the Reyes and Gegare campaigns are liable under this remedy is the cost of #10 envelopes, mailing labels or address-labeling process, paper and printing (including plate-making) for a one-sheet, two-sided flyer printed on white paper in black ink, and first class pre-sort postage. The Reyes and Gegare campaigns are not responsible for artwork or layout expense associated with the mailing. If any candidate or slate seeks to use other than white paper and/or ink in addition to or instead of black, the incremental cost, if any, of such enhancements is the responsibility of that candidate and not the Reyes or Gegare campaigns. Local Union 601 shall supply the address list of its membership (current within 30 days of the date the mailing is to take place) to the mail house designated by any candidate or slate accessing this remedy. The Reyes and Gegare campaigns shall provide such guarantee of payment as the designated mail house shall reasonably require and shall do so in a time that will not delay the mailing.
The remedial mailing ordered here is not available to candidates or slates who are competing solely in Local Union 601's delegates and alternate delegates election or in its officers election, as the violations for which the remedial mailing is ordered concern the International officer election only.
Investigation showed no evidence that the Gegare campaign was aware that Reyes was committing the Rules violations we find here. Nonetheless, the Gegare campaign benefited from the violations in that its campaign message was communicated through use of the union resources. The Rules impose strict liability on a candidate who receives such an improper benefit. Article XI, Section 1(b)(15). Given Reyes' responsibility, however, we order that the cost of the remedial mailing be apportioned between the Reyes and Gegare campaigns so that the Reyes campaign pays 90% and the Gegare campaign 10%.
A decision of the Election Supervisor takes immediate effect unless stayed. Lopez, 96 EAM 73 (February 13, 1996).
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, New York 10022
Fax: (212) 751-4864
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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2010ESD 22
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington,D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
Fgegare663@new.rr.com
Scott D. Soldon
Previant Goldberg
1555 North RiverCenter Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Rome Aloise
250 Executive Park Blvd., Suite 3100
San Francisco, CA 94134-3306
raloise@teamsters853.org
Lucio Reyes, Secretary-Treasurer
Teamsters Local Union 601
745 E. Miner Ave.
Stockton, CA 95202
lreyes601@sbcglobal.net
Maria Ashley Alvarado, President
Teamsters Local Union 601
745 E. Miner Ave.
Stockton, CA 95202
europeartmuseum@yahoo.com
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com
Rochelle Goffe
1234 22nd Avenue, E
Seattle, WA 98112
rochellegoffe@gmail.com
Michael J. Miller
1611 Granville Ave., #8
Los Angeles, CA 90025
miller.michael.j@verizon.net
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com
OFFICE OF THE ELECTION SUPERVISOR
for the INTERNATIONAL BROTHERHOOD OF TEAMSTERS
1801 K STREET, N.W., SUITE 421 L
WASHINGTON, D.C. 20006
202-429-8683
877-317-2011 TOLL FREE
202-429-6809 FACSIMILE
electionsupervisor@ibtvote.org
www.ibtvote.org
Richard W. Mark
Election Supervisor
August 27, 2010
TO: All members of Teamsters Local Union 601
FROM: Richard W. Mark,Election Supervisor
The Election Supervisor has determined that Local Union 601 Secretary-Treasurer Lucio Reyes used union-paid employees and union-supplied offices, telephones, and equipment to campaign for himself and for Fred Gegare.
The Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules") prohibit local union officers, business agents, and staff from campaigning for candidates for IBT International office on union time or using union facilities, equipment or personnel. Reyes' activity violates the Rules because local unions cannot take sides in any union election.
The Election Supervisor has also determined that Reyes threatened to retaliation against union employees for running for IBT convention delegate or alternate delegate against him and for protesting his violations of the Election Rules. These threats violated the Rules because retaliation or threats of retaliation against any member for running for office or filing an election protest are prohibited.
The Election Supervisor will not tolerate violation of the Rules. The Election Supervisor has ordered Reyes not to provide union-funded support to any candidate for IBT office and not to threaten any member for activity protected by the Rules. Local Union 601 has been ordered to post this notice on all worksite bulletin boards where members of this local union work.
The Election Supervisor has issued this decision in Aloise et al, 2010 ESD 22 (August 26, 2010). You may read this decision at http://www.ibtvote.org/protests/2010/2010esd022.htm.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, 1801 K Street, N.W., Suite 421L, Washington, D.C. 20006, telephone: 877-317-2011, fax: 202-429-6809, email: electionsupervisor@ibtvote.org.