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Office of the Election Supervisor for the International Brotherhood of Teamsters

              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. Funks employer, Southwest Administrators (the local unions 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. Funks 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 unions 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. Funks 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. Funks protest (P-539) is that soon after she made her eligibility protest, Mr. Justus and Ms. Edgmon started contacting Ms. Funks 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

Page 1

 

 

Ms. Funk had falsely accused them by filing a protest over their contacts with Southwest Administrators.  They further stated to Ms. White that Ms. Funks 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. Funks protest, the Election Officer finds that Mr. Justus and

Ms. Edgmon made their accusations to Ms. White in response to Ms. Funks protected action in filing her eligibility protest and the current protest.  Those accusations involved Ms. Funks 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

Page 1

 

 

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. Funks 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 RulesSee 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. Funks 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

Page 1

 

 

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