Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: RICHARD GALVAN,                   )           Protest Decision 2016 ESD 171

                                                                        )           Issued: April 13, 2016

            Protestor.                                           )           OES Case No. P-222-031416-FW

____________________________________)

            Richard Galvan, member of Local Union 396 and candidate for delegate and for International office, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that supporters of the opposition slate intimidated members, in violation of the Rules.

            Election Supervisor representative Denise Ventura investigated this protest.

Findings of Fact and Analysis

            Local Union 396’s election plan provided for the election of twelve delegates and fourteen alternate delegates to the IBT convention.  The January 31, 2016 nominations meeting resulted in a contested election between two full slates and no unaffiliated candidates.  Protestor Galvan led the Galvan Local 396 Teamsters United slate; local union principal officer Ron Herrera led the Ron Herrera Local 396 slate. 

            Galvan’s protest made two allegations.  First, he asserted that on March 4, 2016, ten days before the protest was filed, candidates and allies of the Herrera slate began appearing at the UPS Main Street facility where Galvan and his supporters were campaigning within about ten minutes of the arrival of the Galvan campaigners, and the number of Herrera supporters grew over the next hour.  The Herrera supporters spoke to members to whom Galvan and his allies had campaigned, sometimes loudly, disparaging Galvan and the message he was presenting.

            Article XIII, Section 2(b) requires pre-election protests to be filed within two working days of the date of the conduct protested.  Galvan had personal knowledge of the alleged incident; he offers no reason or excuse for the 10-day delay.  We deny the protest concerning the March 4 incident as untimely filed.

            Turning to the protest’s second allegation, Galvan asserted that on March 10, 2016, Herrera supporters repeated their conduct when Galvan and his allies were campaigning at the UPS Cerritos facility. 

            Galvan told our investigator that he arrived at UPS Cerritos at approximately 9:30 p.m., seeking to campaign to twilight employees who began clocking off duty around that time and to night shift employees arriving for a 10 p.m. start.  When he arrived with his flyers, Galvan said no known supporters of the Herrera slate were present.  He campaigned uninterrupted among departing and arriving UPS employees for more than an hour, joined by his allies at 9:45 p.m.  At about 10:05, David Enriquez, a UPS employee at the facility who also serves as a steward and is a known Herrera supporter, saw Galvan and his supporters campaigning.  Enriquez was working at the time he observed Galvan.  According to Galvan, Enriquez made a phone call, the content of which Galvan could not hear.  Enriquez did not engage Galvan, any other campaigners, or any members at this point.  At about 10:45, two local union business agents arrived, joined twenty minutes later by a third business agent and then Enriquez, who had finished his shift.  According to Galvan, only Enriquez had campaign flyers.  The conduct of the rest was verbal only, criticizing and disparaging Galvan and his slate aloud to members Galvan and his supporters were addressing.  According to Galvan, the conduct of the Herrera supporters made members to whom Galvan was campaigning reluctant to engage with him and to take his literature.

            With respect to the March 10 incident, our investigator interviewed Galvan and individuals who campaigned with him, as well as Enriquez and individuals who campaigned in support of the Herrera slate against Galvan.  We make no findings of fact in this case, concluding it is unnecessary to do so because the facts alleged by Galvan, assuming them to be true, do not state a violation of the Rules.

            The protest implicates members’ rights to campaign without interference and free from threat of retaliation.  Article VII, Section 12(a) of the Rules protects members’ right to campaign; it also grants “the reciprocal right to hear or otherwise receive such campaign advocacy.” 

Past decisions recognize that loud and sensational language is part of the election process, and the Rules do not bar zealous campaigning. Jorgensen, 2000 EAD 72 (December 26, 2000); Rodriguez, 2000 EAD 45 (November 3, 2000); Yocum, 2000 EAD 18 (September 1, 2000) (loud, rude and obnoxious behavior of union steward as member attempted to have other members sign petition not unlawful); Wasilewski, 2000 EAD 14 (August 14, 2000) (words exchanged between two sides in the context of petitions being signed); Rudolph, P861 (August 29, 1996) (no violation where tempers flared briefly on each side, words were exchanged and a few pushes); Zuckerman, 2005 ESD 38 (December 15, 2005) (no violation where campaigner’s conduct was “loud, rude and obnoxious” but stopped short of physical violence).  We look to the totality of the circumstances to determine whether vulgar or threatening language so interferes with the right to campaign that it violates the Rules. Williams, 2001 EAD 201 (February 27, 2001).

Conduct that goes beyond zealous campaigning and escalates to such a level that it drives union members away from the vicinity of campaign activity effectively deprives members of their reciprocal right to receive literature and/or solicitations of support.  We exercise care in evaluating such conduct, for members have the right to hear and assess campaign messages different from those published by the protestor.

In this case, we find the verbal criticisms Galvan alleged did not substantially interfere with or deny the right of the Galvan campaigners to campaign among the members employed at UPS Cerritos.  Rather, this is an instance of campaigns competing head-to-head.  Neither side could have an exclusive right to campaign in the area.  Members employed at UPS Cerritos received campaign literature as they entered and exited the facility.  Although Galvan asserted that some members shied away from campaigners to avoid being entangled in the banter or because Herrera campaigners were openly critical of the Galvan slate, we find that the anti-Galvan message the Herrera campaigners were expressing – or, from another perspective, the pro-Herrera message as reflected (for example) on campaign flyers – is communication protected by the Rules.  Moreover, Galvan campaigned at the facility for more than an hour uninterrupted on March 10 and continued to campaign even when Herrera supporters were present for some time.  Thus, we find he had ample opportunity to campaign throughout the evening.  Accordingly, we find that the Galvan campaigners were not denied their right to campaign at UPS Cerritos nor were members denied the opportunity to receive the Galvan campaign message.  Galvan, 2011 ESD 238 (April 27, 2011).

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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2016 ESD 171 

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