IN RE: MIKE HURTADO, Protestor.
Protest Decision 2006 ESD 214
Issued: May 4, 2006
OES Case No. P-06-248-032906-FW
Mike Hurtado, a member and delegate candidate from Local Union 572, 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"). The protest alleged that individuals removed campaign literature from the general use bulletin boards at his place of employment, in violation of the Rules.
Election Supervisor representative Michael D. Four investigated this protest.
Findings of Fact
The protestor alleges that at several intervals during his campaign for delegate, he posted campaign literature behind a locked board in the frozen foods department of Ralph's Grocery and that the literature was subsequently taken down. Business agents and shop stewards have access to the locked board in the frozen food department. Hurtado alleges that his posted campaign material was repeatedly removed within 48 hours of posting.
In the frozen foods department breakroom are an open multi-purpose board, a small bulletin board, and a locked bulletin board; the last of these is used exclusively for official union notices.
Hurtado and Frank Halstead, a shop steward and political ally of Hurtado, alleged that Tait Skifstrom, a local union business agent, removed the literature from the locked board because he is the only person not an ally of Hurtado who had a key to the locked board. Skifstrom admitted removing the campaign material from the locked bulletin board, which he claims is used only for official union business, and reposting it immediately on the small board next to the locked board. Skifstrom said that campaign material was posted on the locked board once in a previous election and that the campaign material was similarly removed immediately. There is neither allegation nor evidence of any other campaign literature being posted on the locked bulletin board during this election.
Our investigation found no evidence to contradict the preexisting practice limiting use of the locked board to official union notices.
Analysis
Article VII, Section 12(d) of the Rules provides that "no restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity." The definitions define "Union bulletin board" as "any bulletin board to which the International Union or Local Union has access for the purpose of posting information concerning the business and/or activities of the union and includes bulletin boards at the office of the Union as well as bulletin boards located on employer premises."
Where there has been a practice of using a union bulletin board for general purposes, union members have a right to use it for campaign purposes even if the board has not previously been so used. Cassella, P794 (July 15, 1996). The bulletin board at issue here was behind locked glass, a barrier that effectively blocked use of it by rank and file members of the local union. Access to the board was limited to local union business agents and shop stewards and only for official union notices. Further, immediately adjacent to the locked board was an acknowledged multi-purpose board, which Hurtado could have used to post campaign literature. Indeed, we note that Skifstrom did not dispose of Hurtado's campaign flyer; he merely moved it from the locked board to the multi-purpose board immediately next to it.
The right to post on bulletin boards is determined by past practice. Rodriguez, P348 (February 1, 1996). Where there is no past practice, then absent present discrimination against a candidate there is no Rules violation when access to union or employer bulletin boards is denied. Lambert, P359 (February 26, 1996). The past practice indicates that the glass-encased bulletin board at Ralph's Grocery store was used only once previously for a campaign purpose, and similar to the case at bar, the material was immediately removed because it was "not official Union business." Past practice on this bulletin board indicates that this board is for official union business only. Because no campaign literature of any candidate was allowed on the glass-encased bulletin board, we find no evidence of discrimination against the protestor and therefore no violation of the Rules.
Accordingly, we DENY the 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, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, 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
2006 ESD 214
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Mike Hurtado
2703 Warwood Street
Lakewood, CA 90712
fwhalstead@hotmail.com
Tait Skifstrom
9052 Hyde Park
Huntington Beach, CA 92646
Rick Middleton
Secretary-Treasurer, Local Union 572
450 Carson Plaza Drive
Carson, CA 90746
Michael D. Four
Schwartz, Steinsapir, Dohrman & Sommers, LLP
6300 Wilshire Blvd. Suite 2000
Los Angeles, CA 90048-5202
mdf@ssdslaw.com
Christine Mrak, Esq.
2357 Hobart Avenue, SW
Seattle, WA 98116
cmm@wmblaw.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com