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IN RE: ARMANDO ECHEVERIA, Protestor. Armando Echeveria, a member of Local Union 396, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election (“Rules”). He alleged that Santiago Torres interfered with his campaign rights and threatened retaliation for campaign activity in violation of the Rules. Election Supervisor representative Michael Four investigated this protest. Findings of Fact Investigation showed that, on December 2, 2005, Echeveria handbilled and solicited accreditation signatures in behalf of the Leedham slate in a UPS employee parking lot in Los Angeles. With him were Frank Halstead and Dan Kane. According to Echeveria, Torres, a shop steward at the facility, confronted the trio about the petitions. Torres yelled at the members the campaigners were soliciting, telling them: “Don’t sign that piece of crap;” “Don’t talk to them;” “Those guys are a bunch of outsiders;” “This is my house;” “TDU are liars and thieves;” and “Don’t sign the petition.” In addition, Torres threatened the members, yelling: “I will remember you inside if you sign [the petition];” “If you sign this, you are not going to get any backing from me.” To Echeveria, Torres said, “I’m glad you were not at the last [union] meeting because I was waiting to kick your ass over there.” To Kane, he said, “I’m going to kill your ass.” Torres then made a cell phone call to Enrique Cisneros, a business agent for the local union; Echeveria heard Torres say, “Get your ass over here now; I’m about to take some people out.” Kane corroborated Echeveria’s account. He told our investigator that Torres approached the three campaigners and appeared to be very angry. Torres yelled such things as “I will kick your ass;” “I should have gotten you at the Local meeting;” and “I don’t care if I lose my job; I am going to kick your ass.” Halstead substantiated these accounts. Halstead quoted Torres to our investigator as yelling, “This is my house;” “F-ck TDU;” and “This isn’t your local.” When Halstead tried to calm Torres, Torres responded, “F-ck you, four eyes.” Halstead said, “This is democracy;” Torres rejoined, “F-ck your democracy.” To Kane, Torres yelled, “Right now! Let’s go across the street. I will kill your ass.” To Echeveria, Torres yelled, “It was lucky you didn’t show up at the union meeting; I was waiting for you.” To the UPS employees arriving for work, Torres yelled, “Don’t talk to them. Don’t take their shit. I will remember who signed the petition inside.” These witnesses, interviewed by our investigator separately, said that Torres’ tirade ended when business agents Cisneros and Dave Castro arrived for a grievance meeting. When Cisneros arrived, Echeveria spoke with him privately and asked him to “put a stop to Torres’ conduct” or he would file a protest. According to Echeveria, Cisneros said he would talk to Torres. Torres, Cisneros and Castro then went inside the facility with Roberto Mayen, another member, and the incident ended. Torres admitted seeing the three campaigners at the facility that day. Torres also admitted approaching Kane, whom he knew well, and asking why he supported TDU. Torres stated that Kane got upset at that question and “got in my face,” although Torres could not recall any specifics of what Kane said or how he behaved. Torres asserted that, at that point, he walked away from the situation because he “didn’t want to get in any trouble.” Business agent Cisneros told our investigator that, when he arrived at the facility, Echeveria approached him and asked him to take Torres away because Torres was “disrespecting” him. Cisneros stated that Echeveria did not get more specific with him concerning Torres’ conduct. Cisneros further stated that he did not recall receiving a telephone call from Torres before arriving at the facility. Castro, the second business agent, told our investigator that, when he arrived at the facility, Torres, Castro and Roberto Mayen were waiting for him before proceeding into a grievance meeting. Castro stated that he saw the three campaigners and greeted Kane and Echeveria, whom he knew. He denied any discussion of Torres, and he further denied that Torres said anything about what transpired before Castro’s arrival. Finally, our investigator interviewed Roberto Mayen, who claimed that he did not have a good recollection of that day and stated that he would feel more comfortable discussing the incident if Castro were present. Mayen ended the call and could not be reached again. Analysis Article VII, Section 12(a) of the Rules states that “Union members retain the right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.” The same provision grants to members “the reciprocal right to hear or otherwise receive such campaign advocacy.” These provisions gave the Leedham supporters the right to solicit support for their candidate. They also gave Torres the right to oppose that candidate. Ramos, 2006 ESD 65 (February 3, 2006). Had Torres merely campaigned vigorously in opposition to the entreaties of the Leedham supporters, we would deny this protest. However, Article VII, Section 12(g) states that “[r]etaliation 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 for exercising any right guaranteed by this or any other Article of the Rules is prohibited.” Torres committed prohibited retaliation by threatening rank and file members with these coercive statements: “I will remember you inside if you sign [the petition]” and “If you sign this, you are not going to get any backing from me.” Torres was a shop steward. In that role, he was, alternately, the chief advocate and the first line of defense for members on the shop floor, for he possessed the authority to deal directly and immediately with management to enforce the collective bargaining agreement and work rules and to settle disputes between co-workers. In this context, a threat that “you are not going to get any backing from me” because the member has signed a petition wrongfully coerces that member not to exercise the right to support the candidate of his or her choosing, or coerces the member to avoid exercising protected political rights altogether. Rather than permit the members to support a candidate as each member may choose to do on their own, Torres sought to compel them not to exercise their political rights by threatening to withdraw union support if they showed support for a candidate Torres opposed. Such conduct violates the Rules because it constitutes a “palpable threat of actual harm.” Ostrach, 2000 EAD 57 (December 6, 2000), aff’d, 01 EAM 015 (January 19, 2001) Although Torres also threatened physical harm against Echeveria and Kane, the evidence demonstrates that the threats were contingent rather than immediate, and the stated contingencies did not occur. Thus, Torres told Echeveria that he would have “kicked your ass” had Echeveria appeared at a past union meeting that he did not in fact attend. Similarly, although Torres proposed to Kane that they “go across the street” where “I will kill your ass,” Kane did not accept the offer and cross the street. In sum, the physical harm that Torres threatened was not palpable. Accordingly, we GRANT the protest with respect to the coercive statements Torres made to rank and file members; we DENY the protest in all other respects. 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. We order Torres to cease and desist from making prohibited threats or otherwise retaliating against members based on their exercise of rights protected by the Rules. We further order Torres to sign the attached Notice and post it on all union bulletin boards at his workplace for a period of thirty consecutive days. 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 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,
1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the
time prescribed above. A copy of the protest must accompany the request for
hearing. cc: Kenneth Conboy
NOTICE TO TEAMSTER MEMBERS FROM
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