IN RE: GERALD MOERLER, Protestor.
Protest Decision 2006 ESD 367
Issued: October 5, 2006
OES Case No. P-06-338-092606-FW
(See also Election Appeals Master decision 06 EAM 74)
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 Ray Oroñoz, a shop steward at Local Union 848, removed campaign flyers from car windshields, in violation of the Rules.
Election Supervisor representative Bill Kane investigated this protest.
Findings of Fact
On September 22, 2006, the protestor placed 5-page Leedham campaign packets on employees' parked vehicles at the Santa Fe Springs, California facility of Vons Grocery. Moerler went directly to members' cars because this facility does not have an employee bulletin board for posting campaign material. Moerler and Howard Palmer then witnessed shop steward Ray Oroñoz remove the flyers from employee vehicles.
Oroñoz admitted to our investigator that he did remove the campaign literature from "8 or 9 vehicles." Oroñoz claimed that he had a "pact" with several members to remove any literature placed on their personal vehicles. Oroñoz denied the allegation by Moerler and Palmer that he went "row by row" and removed the packets from all vehicles in the parking lot.
The employer does not have a policy prohibiting leafleting of vehicles in employee parking lots. One week prior to the incident at issue here, Hoffa supporters held a rally in the same parking lot, during which they placed campaign literature on the vehicles parked in the lot. Oroñoz attended this rally as a Hoffa supporter.
Analysis
The Rules guarantee each member the right to support or oppose any candidate and to distribute campaign literature free from interference. Rules, Article VII, Section 12(a). Further, members "have the reciprocal right to hear or otherwise receive such campaign advocacy." Id.
Article VII, Section 12(e) of the Rules permits members to distribute literature and otherwise solicit support in connection with the International Officer election in any parking lot used by IBT members to park their vehicles in connection with their employment.
While an employer may prohibit campaigners from placing leaflets on the windshields of vehicles parked in the employer's parking lot, Maxwell, P731 (April 25, 1996), such prohibition must be announced and must be enforced on a non-discriminatory basis by the employer, not by a partisan member or agent of the local union. Hardison, 2006 ESD 116 (February 27, 2006).
Here, Vons had no policy prohibiting leafleting of employee vehicles in Vons parking lots, and the leaflets were not removed by the employer enforcing such non-existent policy. Rather, shop steward Oroñoz decided on his own to remove leaflets placed by another member in support of a candidate Oroñoz opposed. Oroñoz's action impermissibly interfered with the right of that candidate to campaign and the reciprocal right of members to receive that campaign advocacy. Oroñoz' explanation that he had a "pact" with certain members is not credible. He gave no practical reason as to why such members would have sought out an arrangement to have Oroñoz remove literature from their vehicles when they are capable of doing so themselves. Equally incredible is Oroñoz' claim that he removed the Leedham packets from only 8 or 9 vehicles, as photographic evidence supplied by Moerler and Palmer make plain.
Even had the employer established a policy restricting the leafleting of cars parked in the employee parking lot, a union official such as Oroñoz (or any union member) could not enforce it on the employer's behalf. Absent such an employer policy, the Rules' guarantee that members may receive or hear campaign advocacy prohibits any union official or member from intercepting the literature before members have the opportunity to review it.
Accordingly, we GRANT this 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.
We order Oroñoz to cease and desist from interfering with the campaign rights of members to distribute or receive campaign literature or other advocacy.
In addition, we order Local Union 848 to post on all union bulletin boards at all Vons Grocery facilities under its jurisdiction the notice attached to this decision. This posting must be completed no later than Monday, October 9, 2006, and an affidavit of compliance supplied to our office no later than Wednesday, October 11, 2006. The posting must be maintained for a period of 30 consecutive days.
Finally, to remedy the improper interference that Local Union 848 steward Oroñoz committed with respect to the Leedham campaign material and to restore a level playing field, we order Local Union 848 to pay the full cost of duplicating and mailing to the full membership of Local Union 848 employed at the Sante Fe Springs facility of Vons Grocery a one-page, two-sided campaign flyer to be supplied by the Leedham campaign. Such flyer shall be mailed no later than Saturday, October 7, 2006 by first-class mail. The local union shall supply its membership list for the members at this facility, current as of the date it supplies it, to the mail house selected by the Leedham campaign in a form (label or electronic) designated by the Leedham campaign. The local union shall tender payment of the costs identified in this paragraph within 2 working days of receipt of documentation showing duplication and mailing costs. The Leedham campaign shall be permitted reimbursement for the costs of printing (including plate-making, 4 colors maximum), ink, paper and envelope stock, folding, stuffing, and postage. The Leedham campaign shall be responsible for the art and typesetting costs associated with the flyer. We order this remedy pursuant to Article XIII, Section 4(h) of the Rules, which authorized the Election Supervisor to "requir[e] the Union to mail or otherwise distribute, at its own expense, candidate campaign materials," and Section 4(m), under which the Election Supervisor may "require[e] the Union to provide candidate(s) with specific goods or services." We hold Local Union 848 responsible for Oroñoz' action because of his status as a shop steward. In that capacity, Oroñoz was the ranking union official at the facility and had a special responsibility to insure that his actions complied with the Rules.
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 367
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
Gerald Moerler
21131 E. Calora Street
Covina, CA 91724
(By fax and UPS overnight)
Ray Oroñoz
20114 Willow Road
Walnut, CA 91789
(By UPS overnight)
Jim Santangelo
Secretary-Treasurer, Local 848
818 Oak Park Road, Suite 200
Covina, CA 91724
(By fax and UPS overnight)
Vons Grocery Corporate Headquarters
618 Michillinda Avenue
Arcadia, CA 91007
(By UPS overnight)
Dolly Gee
Schwartz, Steinsapir, et al
6300 Wilshire Blvd., Suite 200
Los Angeles, CA 90048
dmg@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