IN RE: YANKO FUENTES, Protestor.
Protest Decision 2006 ESD 263
Issued: May 22, 2006
OES Case No. P-06-283-051006-NE
Yanko Fuentes, a member and delegate candidate from Local Union 805, 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 Sandy Pope, local union president and delegate candidate, denied Fuentes access to union bulletin boards at Fordham University and directed the business agent to deny him access to the campus.
Election Supervisor counsel Maureen Geraghty investigated the protest.
Findings of Fact
Fordham University employs some 400 members of Local Union 805 and is the largest employer of this local union's members. The campus is not open to the public. Any persons seeking entry must show identification and be cleared by security. Persons who do not have official business on campus are not permitted access.
On May 8, 2006, protestor Fuentes and local union member Kevin Currie visited Fordham's main campus to post Fuentes' campaign literature on union bulletin boards. Fuentes spoke with Fordham security and requested and was granted access for that purpose.
At the main custodial building where most local union members clock in, Fuentes observed two bulletin boards. The postings on one were limited to official employer announcements and policies. The second, a glass-enclosed bulletin board, held campaign literature for the Pope slate and announcements of job openings at the university. The glassed board did not lock and was accessible to anyone seeking such access. However, Fuentes did not recognize this fact. His counsel's protest alleged that Fuentes "was denied equal access to the unions [sic] bulletin board" because Pope's campaign flyers were "behind the locked windows." Assuming incorrectly that the glass-enclosed board was locked, Fuentes placed a stack of his campaign literature on counter next to the time clock. He then left the building and, after brief campaigning outside, the campus.
Fuentes returned the next day with 3 supporters. All were permitted access by security without incident, and they returned to the custodial building. Fuentes observed that the stack of literature he had left for employees to take had been picked up. Fuentes produced no evidence that the literature had been disposed of improperly, and our investigation found none.
Fuentes then telephoned the local union offices and asked for the locations of the union bulletin boards on campus. The local union responded by faxing a list immediately to Fuentes' lawyer. Fuentes then asked an unidentified management employee in the custodial building to direct him to the union bulletin boards on campus. The employee replied that he did not know the location of any such union bulletin boards. Fuentes and his supporters then distributed campaign literature outside the custodial building.
Investigation showed that, while doing so, Fuentes encountered Enrique Martinez, local union business agent and Pope supporter, and the two had a loud argument about an incident that had occurred at another location earlier that day. Security intervened and directed Martinez to go about his union business and Fuentes and his supporters to leave campus. All complied.
Fuentes returned to campus with supporter Bobby Gonzalez the next day, May 10, and again was permitted access by security. The two met with university human resources representatives, gave the HR personnel some Fuentes campaign flyers, and asked that they be posted on union bulletin boards. The HR staffers replied that they did not believe Local Union 805 controlled any campus bulletin boards and, even if it did, they did not know the locations of the boards. As an alternative, the representatives agreed to transmit the flyers to the director of the custodial building for placement near the time clock, and this was promptly done. The HR personnel instructed Fuentes, however, that he was not permitted to roam the campus to campaign.
Investigation showed that the university and the local union disagree concerning the local union's claimed right to campus bulletin boards. The employer asserts that the union has no contractual bulletin board rights. The union counters that it has five such boards, and they are located at the custodial building, the boiler room, the student deli, McGinley building, and the facilities building.
On May 17, Local Union 805 business agent Jose Garcia met Fuentes on campus and walked him around to each of the five bulletin boards claimed and used by the local union. Fuentes elected to post his campaign material only at the McGinley center.
Fuentes does not contend, nor did our investigation find, that members have pre-existing rights to post materials on employer bulletin boards, or that the employer has granted the Pope slate the right to post there while denying Fuentes the same right.
Consistent with the HR representatives' advice to Fuentes, our investigation found no pre-existing right to campaign on Fordham's campus, except for the parking lot used by local union members. Moreover, we found that the university did not permit Pope or her supporters to campaign on campus while denying Fuentes the same right.
Fuentes has conducted two campaign mailings to local union members employed at Fordham, the first on May 7 and the second on May 16.
Analysis
Article VII, §12(d) of the Rules provides the following:
No restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity. Similarly, no restrictions shall be placed upon candidates' or members' preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fundraising events or engage in similar activities on employer or union premises. Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.
The evidence shows that the employer first permitted and subsequently facilitated Fuentes' placement of his campaign literature near the time clock in the custodial area for distribution to Local Union 805 members. The investigation also showed no evidence that the employer restricted Fuentes' effort to post campaign materials on bulletin boards, despite the dispute between management and union regarding whether the local union has a contractual right to campus bulletin boards.
Fuentes' allegation that the local union restricted his access to union bulletin boards is also not supported by the evidence. Local Union 805 promptly provided Fuentes' attorney with the locations of boards the union claimed to control. Further, a local union business agent escorted Fuentes to all such boards to facilitate his effort to post material, although this action was not required by the Rules. Fuentes chose to post a campaign flyer on only one board and declined the opportunity on the remaining four boards. Accordingly, we DENY the protest's claim that the employer or the local union denied, interfered with, or impeded Fuentes' right to post campaign materials on union bulletin boards. To the contrary, we find that the employer and the local union permitted and facilitated such activity.
With respect to Fuentes' claim that the local union, through business agent Martinez, caused his removal by campus security on May 10, we DENY this aspect of the protest as well. The evidence showed that Fuentes was removed from campus because he engaged in a heated argument that deviated from the limited purpose for which he was granted campus access. Moreover, we found no evidence that Fuentes had a pre-existing right to campaign on campus, aside from the limited right to post his materials on bulletin boards. Likewise, we found no proof that the employer permitted other employees to campaign on campus in the current delegate and alternate delegate election or in any previous union election.
Accordingly, we DENY this protest in its entirety.
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 263
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
Yanko Fuentes
233 Walker Street
West Babylon, NY 11704
Walter Kane
Cary Kane LLP
1350 Broadway, Suite 815
New York, NY 10018
Alexandra E. Pope
President, Local Union 805
44-61 11th Street, 3rd Floor
Long Island City, NY 11101
Louie Nikolaidis
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
lnikolaidis@lcnlaw.com
David F. Reilly
22 West Main Street
North Kingston, RI 02852
dreilly@rooltd.com
Maureen Geraghty
The Geraghty Law Firm
426 Old Salem Road
Winston-Salem, NC 27101
mg@geraghtylawfirm.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com