Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR for the INTERNATIONAL BROTHERHOOD OF TEAMSTERS

 

IN RE: SANDY POPE,                                  )           Protest Decision 2011 ESD 334
          (After Remand),                                   )           Issued: September 29, 2011
                                                                        )           OES Case No. P-320-083011-FW
            Protestor.                                            )               
____________________________________)

 
            In Pope, 2011 ESD 325 (September 15, 2011), we found that Todd Mendez, principal officer of Local Union 683, impermissibly gathered information on a campaign meeting of Pope supporters and subsequently harassed them for attending the meeting, in violation of the Rules.  We found that Mendez’s conduct violated a cease and desist order against interfering with members’ campaign rights that we issued against him in Leal, 2011 ESD 269 (May 31, 2011).  To remedy the repeat violation found in Pope, we ordered Mendez again to cease and desist and to pay a fine to OES of $100; we also ordered Local Union 683 to post a remedial notice on all worksite bulletin boards.

            Mendez appealed, contending that our decision was factually wrong and had exceeded our jurisdiction.  The Election Appeals Master affirmed the finding of a Rules violation as follows:

The protest and decision in this matter raise extraordinarily serious questions about the conduct of the principal officer of Local 683, Todd Mendez.  The Election Supervisor has for the second time found, upon a highly persuasive evidentiary record, that Mendez has interfered with the rights of Local members to participate, free of his implied threats and coercion, in campaign activity fully protected by the International Election Rules and the United States District Court in New York, under a long standing Consent Decree to which the International Brotherhood and the United States Government are parties.

Mendez’s arguments are unavailing and frivolous.

The Election Appeals vacated the monetary penalty, concluding it was too small to remedy the conduct found.  Thus:

The monetary fine of $100 imposed upon Mendez by the Election Supervisor may well be seen by the membership of Local 683 as trivial and unlikely to deter Mendez from such behavior in the future.  The consequences may have a chilling effect upon the exercise of guaranteed campaign rights by members of Local 683.

Accordingly, the monetary remedy is vacated and the matter is remanded to the Election Supervisor for further consideration of an effective monetary remedy adequate to protect the campaign interests of Local 683’s members in the ongoing election campaign for International Brotherhood of Teamsters Officers.

11 EAM 58 (September 27, 2011).

            Monetary fines imposed on individuals serve the remedial purpose of demonstrating to the respondent the seriousness of the Rules violation and deterring further violations.  In the current election cycle, we have imposed fines on individuals in the following cases:

§  In Pope, 2011 ESD 309 (August 5, 2011), we fined a member $250 for retaliation by intentionally knocking another member to the floor.

§  In Deszcz et al, 2011 ESD 310 (August 12, 2011), appeal withdrawn, we fined a member $500 for intentionally grabbing two political opponents and violently yanking them off of barstools.

§  In Reyes, 2011 ESD 281 (June 18, 2011), aff’d, 11 EAM 50 (June 24, 2011), we fined principal officers of two local unions $500 each for using union resources to support the campaign activity of one of the officers under circumstances where that officer had, with “an astonishing display of hypocrisy,” accused her opponent of impermissibly using union resources to campaign.  We also disqualified her from taking her delegate seat at the convention.

§  In Hoffa-Hall 2011, 2011 ESD 323 (September 11, 2011), aff’d, 11 EAM 57 (September 16, 2011), we fined a local union officer $500 for making false statements to our investigators during a protest investigation.

§  In Nichols et al, 2011 ESD 306 (August 5, 2011), aff’d, 11 EAM 55 (August 16, 2011), we fined two local union officials $500 each and a candidate for International office $1,000 for significant and prolonged use of union time to construct a campaign website and for campaigning at a union membership meeting.

§  In Gegare, 2011 ESD 289 (June 29, 2011), appeal withdrawn, 11 EAM 52 (July 5, 2011), we fined a candidate for International office $1,000 for misconduct during his acceptance statement on the floor of the IBT convention.

§  In Bales, 2011 ESD 286 (June 28, 2011), we fined a candidate for International office $5,000 for bringing internal union charges against a member for protected speech, under circumstances where the candidate was a repeated violator of the Rules.

This Rules violation is the second by Mendez in this election cycle, and is retaliatory conduct similar in nature to his earlier violation.  See Leal, 2011 ESD 269 (May 31, 2011).  By committing a repeat offense, Mendez has demonstrated that a cease and desist order is insufficient to cause him to conform to the Rules.  The Election Appeals Master has concluded that the fine of $100 we imposed will be seen by the membership as a trivial amount that is unlikely to correct Mendez’s conduct.  Counsel for Mendez has suggested as an alternative that the fine by increased to $125, apparently suggesting that the additional $25 fine will be the incremental enhancement necessary to accomplish the remedial purpose.  We reject this suggestion as specious.

            In accordance with the mandate of the Election Appeals Master, we impose a fine on Mendez of $1,000 to be paid from personal funds.  We select this figure as one that reflects the seriousness of Mendez’s repeated misconduct, deters further misconduct on his part, and demonstrates to the membership that Mendez’s actions will not be tolerated.

            As the Election Appeals Master remanded solely on the amount of the monetary remedy, we do not disturb the cease and desist order or the notice (except to correct the amount of the monetary remedy imposed).

Compliance with the fine and the posting must be completed within two working days of the date of this decision.  Within one day following payment of the fine, Mendez must provide an affidavit stating that the fine to OES was paid solely from his personal funds, that no other person, IBT member, candidate, slate, or campaign has transferred or contributed any funds to him for the purpose of paying all or part of the fine, and that he will refuse any such offer, transfer, or contribution.  Within one day following completion of the posting, Local Union 683 shall provide an affidavit demonstrating that the posting has been completed.

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, NY 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
            2011 ESD 334

 

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