IN RE: GERALD MOERLER, Protestor.
Protest Decision 2006 ESD 365
Issued: October 5, 2006
OES Case No. P-06-336-092206-FW
Gerald Moerler, a member of Local Union 848, 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 Vons' personnel pulled down campaign material, in violation of the Rules.
Election Supervisor representative Bill Kane investigated this protest.
Findings of Fact
On or about September 15, 2006, Moerler posted two items on the employee bulletin board at the Vons El Monte facility. The first was a newspaper article regarding an assault on a Leedham delegate at the 2006 IBT convention; the second was an article obtained from the internet dealing with elections. The items were physically attached to each other. On the second item, Moerler handwrote, "Dump Hoffa and his gang, vote for Leedham." Also on the second item, Howard Palmer, a Leedham supporter, typed out: "Howard Palmer wants you to know that he posted this information. He doesn't want the wrong [union] member to be assaulted."
Vons supervisor Brenda Montoya pulled down both items on or about September 19, 2006. On September 20, when Moerler discovered that Montoya had removed the materials, he contacted her to learn why she had done so. According to Moerler, Montoya said she pulled the items down because she was afraid that the terms "gang" and "assault" could have led to a physical altercation among the employees.
Moerler told our investigator that Vons censored only Leedham campaign literature. Vons allowed a Hoffa campaign flyer depicting Tom Leedham hanging by the neck from a rope to remain posted.
Moerler reposted the original flyers on or about September 24, 2006. He deleted "gang" from the first flyer, so it read "Dump Hoffa, vote for Leedham." On the second flyer, he crossed out "assaulted" and made no other change.
Analysis
Article VII, Section 12(d) of the Rules provides in relevant part: "No restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity."
Further, we have repeatedly held that the censorship is not tolerated on campaign literature. See Sanford, 2006 ESD 142 (April 3, 2006), and cases discussed there. "The Rules are not intended to censor … or ensure the accuracy and truth of campaign materials." Yolland, P660 (April 3, 1996); Hoffa 2006, 2006 ESD 360 (September 29, 2006).
Montoya and Vons had no authority to censor or remove campaign literature from the bulletin board. Vons' argument that the campaign literature in question contained objectionable phrases is unacceptable. In addition to the principle that employers have no legitimate role in the process by which union members select their leaders, this case points up the further problem employer interference presents where one flyer is removed because it contains the word "gang" while another depicting the lynching of a candidate for General President is permitted to remain. Any such employer interference has either a discriminatory purpose or a foreseeable discriminatory effect and will not be tolerated.
Accordingly, we GRANT the protest.
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.
Montoya's conduct was mitigated in part by the reposting of edited flyers within a few days. Nonetheless, we order Montoya and Vons not to interfere with or impede the posting or distribution of any campaign literature during the remainder of the IBT International Officer election. We further order that the notice attached to this decision be posted on all general purpose bulletin boards at the El Monte facility and that the posting be maintained through and including November 14, 2006.
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 365
NOTICE TO ALL IBT MEMBERS EMPLOYED AT THE
EL MONTE FACILITY OF VONS GROCERY
FROM IBT ELECTION SUPERVISOR
RICHARD W. MARK
The Rules for the 2005-2006 IBT International Union Delegate and International Officer Election ("Rules") permit members to support or oppose any candidate and to exercise their pre-existing rights to use employer bulletin boards for campaign publicity. The Rules prohibit employers from interfering with or removing campaign publicity from such bulletin boards.
The Election Supervisor has found that Vons Grocery supervision removed campaign literature from an employee bulletin board at the El Monte facility, in violation of the Rules.
The Election Supervisor will not tolerate such employer interference.
The Election Supervisor has ordered Vons Grocery to cease and desist from interfering with members' rights to post campaign literature on employer bulletin boards.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with Richard W. Mark, Election Supervisor, 1725 K Street, Suite 1400, Washington, D.C. 20006, telephone: 888-IBT-2006, fax: 202-454-1501, email: electionsupervisor@ibtvote.org.
__________________________________
Richard W. Mark
IBT Election Supervisor
Dated:
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters. It must remained posted through November 14, 2006 and must not be defaced or covered up.
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
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Jim Santangelo
Secretary-Treasurer, Local 848
818 Oak Park Road, Suite 200
Covina, CA 91724
Vons Grocery Corporate Headquarters
618 Michillinda Avenue
Arcadia, CA 91007
Brenda Montoya
Vons Grocery, El Monte Facility
4300 Shirley Avenue
El Monte, CA 91731
Brenda.montoya1@safeway.com
Michael Four
Schwartz, Steinsapir, et. al
6300 Wilshire Blvd., Suite 200
Los Angeles, CA 90048
mdf@ssdslaw.com
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
cmm@wmblaw.net
Bill Kane
242 Old Haymaker Road
Monroeville, PA 15146
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com
Gerald Moerler
21131 E. Calora Street
Covina, CA 91724