IN RE: MARIA ASHLEY ALVARADO, Protestor.
Protest Decision 2010 ESD 36
Issued: October 12, 2010
OES Case No. P-038-100810-FW
Maria Ashley Alvarado, member, president and delegate candidate from Local Union 601, 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, delegate candidate and principal officer of Local Union 601, retaliated against her because of her candidacy.
Election Supervisor representative Rochelle Goffe investigated this protest.
Findings of Fact
Protestor Alvarado heads a slate of delegate and alternate delegate candidates called the No Mas Lucio slate. Reyes heads a slate of delegate and alternate delegate candidates called the We Don't Make Promises, We Deliver slate. Alvarado is an appointed business agent in the local union. Business agents perform their duties both in the local union office and at employer worksites, where they meet with members and with management to solve employment problems, police and enforce existing collective bargaining agreements, and negotiate new ones. Business agents use their own vehicles for worksite visits and are provided a monthly car allowance of $650 by the local union to cover expenses.
On October 7, 2010, Alvarado's vehicle did not start. As a result, she requested a ride back to the Stockton office from a pre-arbitration meeting in Modesto. Paul Montano, another business agent present at the meeting, gave her the ride. The next morning, October 8, Alvarado's car again would not start. She telephoned Reyes and left a message that her car was not working and that she would get a ride to work. Reyes replied to the message by phone, asking Alvarado if she would have a vehicle she could use to perform her business agent duties. Following Alvarado's first message, another person was able to get her car started with jumper cables, and she drove it to the mechanic's shop adjacent to the local union hall for diagnosis and repair.
Alvarado requested that Reyes put in writing the telephone exchange between the two of them. What commenced as a single memo from Reyes grew to an exchange of four memos, all dated October 8. Reyes' first memo documented that Alvarado's car was not running on October 7 and did not start on October 8. The memo recounted that she had been given a ride from the pre-arbitration meeting to the office on October 7. Further, the memo stated that when the car did not start on the morning of October 8, Reyes asked how long it would take to have the car repaired; Alvarado's reply, according to the memo, was that she did not know. Reyes' memo stated that, "[b]etween yesterday and today it has been a reasonable amount of time without [a working car]. Our job consists of servicing the members in the plant and you need to have transportation." The memo concluded with a "friendly reminder that a Business Agents Auto Allowance is to be used for such things as this."
Alvarado replied in writing, disputing that she had told Reyes that she did not know when her car would be fixed, stating that another person had gotten the car to start for her on the morning of October 8, and that she had made a second call to Reyes to tell him that she was bringing the car to the mechanic's shop next door to the local union hall for service. Her memo stated that Reyes called her "harassing me about my car not working and telling me that I was getting car allowance and that I needed to have a car." Her memo concluded with a statement that she had delivered the car to the mechanic's shop. An estimate was attached to her memo. It showed that her vehicle is a 2002 model year with 214,908 miles on it.
Reyes replied to Alvarado's memo as follows:
Through this correspondence I want to clear the record that the note I provided for you this morning was at your request and it was a friendly reminder as the note states clearly in the last paragraph.
I want to make sure that I also make it clear that you have been having problems with your car for two consecutive days, I asked you on the phone if you knew how long it would take to get your car back, and you responded that you didn't know. This was the only reason I reminded you about having a car as a business agent.
At no time did I harass you, in fact it was you who started to argue and raise your voice to me when I was making a reasonable request. We all have to be responsible to continue to provide services to the membership together. And, communication is the most effective way to work with each other. I have also, in the past, brought this issue many times to all business agents working for Local 601.
Alvarado replied to Reyes the same date, stating, "I respectfully request that you be so kind and allow me to do my work today. You keep harassing me, using the issue of my car trouble to keep the harassment going." Alvarado further stated that Reyes has harassed her continuously since July 12, the date she announced her candidacy for delegate and formation of a slate of candidates opposing Reyes' slate. In addition, she denied that she "was yelling" at Reyes, as she said Reyes claimed, and promised that she will communicate with Reyes in writing to prevent misunderstandings. Alvarado concluded with the following:
When you say that you were making a reasonable request, I respond that I have been giving you a reasonable answer. I am exercising a democratic right protected under Federal Law and this is to run for Delegate with my slate. All of this will be over soon, please be patient.
Reyes did not respond to Alvarado's second memo.
Alvarado faxed this collection of memos to our office with a cover sheet stating, "Secretary-Treasurer Lucio Reyes is being very abusive to me this morning. I fear he is trying to find an excuse to terminate me. Please keep this correspondence between Mr. Reyes and I [sic] for your records. Please help if you can."
We contacted Alvarado and asked if she intended that we docket her fax as a protest. She replied that she did.
Reyes told our investigator that Alvarado is not the first business agent to have car trouble. In other instances, Reyes said he has given oral reminders to the agents that they must have transportation available to them to perform their duties. Alvarado conceded this point to our investigator. Reyes stated that he had never previously placed such a reminder in writing to a business agent. However, he did so with Alvarado because she expressly asked him to, a point Alvarado conceded as well.
Alvarado stated that other business agents had received help bringing their malfunctioning cars to the mechanic and she did not. She conceded that she received a ride to the local union hall on October 7 from another business agent, that on October 8 she was able to drive her car to the mechanic after another person jump-started it for her, and that she did not ask for help beyond the ride she received on October 7.
Although nothing in the exchange of memos or the fax cover sheet suggests it, Alvarado told our investigator that Reyes was "violent" when reminding Alvarado that she needed to have a working car. When pressed by our investigator, Alvarado denied any physical contact between them but said that Reyes had "a mean face" and a "mad" demeanor. Alvarado offered no witness to corroborate her claim that Reyes was "violent," and we take her failure to claim violence in her memos as a tacit admission that Reyes was not.
Alvarado was not reprimanded, suspended, discharged or otherwise disciplined concerning her car.
Analysis
The Rules, at Article VII, Section 12(f), prohibit "retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee" when directed toward the exercise of any election-related right. See Parisi, P1095 (December 2, 1991). A protest claiming retaliation cannot be sustained unless a threat or an actual act of retaliation is established. Giacumbo, P100 (October 13, 1995), aff'd, 95 EAM 27 (October 25, 1995).
To demonstrate retaliation, a protestor must show that conduct protected by the Rules was a motivating factor in the decision or the conduct in dispute. 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 protected conduct. See Gilmartin, P32 (January 5, 1996), Leal, P51 (October 3, 1995), aff'd, 95 EAM 30 (October 30, 1995); Wsol, P95 (September 20, 1995), aff'd, 95 EAM 17 (October 10, 1995); Miner, 2005 ESD 1 (May 27, 2005). Cf., Wright Line, 251 NLRB 1083 (1980), enf'd, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).
Here, Alvarado suffered no retaliation or harassment. We find that Reyes' "friendly reminder" to her that she needed to have transportation in order to carry out her business agent duties stated a condition of employment that was applicable to and enforced with respect to every business agent, whether or not the agent engaged in activity protected by the Rules. Reyes did not threaten Alvarado directly or indirectly with reprimand, suspension or dismissal, nor did he threaten her physically. Instead, he advised her of her responsibility to maintain her transportation so that she could provide service to local union members.
Alvarado cannot use her candidacy for delegate as a shield against the reasonable directives of her employer that are applicable to her and others within her job title, even here where the person who administers and enforces the employment directives for the local union is her political opponent.
Accordingly, we DENY this protest.
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
2010 ESD 36
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
kirchmanb@yahoo.com
Scott D. Soldon
Previant Goldberg
1555 North River Center 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
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
rochellegoffe@gmail.com
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com