OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: JOSE PEREZ, ) Protest Decision 2020 ESD 34
) Issued: December 7, 2020
Protestor. ) OES Case No. P-043-120120-SO
____________________________________)
Jose Perez, member of Local Union 769 and candidate for delegate in the local union’s delegates and alternate delegates election, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that campaign material was impermissibly posted on the union bulletin board and on an adjacent wall at a Cemex facility in Miami, FL.
Election Supervisor representative Dolores Hall investigated this protest.
Findings of Fact and Analysis
On December 1, 2020, protestor Perez observed a campaign flyer on the union bulletin board at the Cemex-South Miami plant and another flyer immediately adjacent to the board. Perez is employed at the Cemex-Sweetwater plant; he had business at the South Miami facility, where he previously was employed. The union bulletin board at South Miami is clearly labeled in large letters “union board.” Investigation showed that the board is reserved exclusively for union business, with only the steward and the business agent permitted to post on it. However, the board is open and not glass-enclosed or locked; as a result, unauthorized postings may be made without detection. History shows that unauthorized postings are removed upon discovery. The flyer Perez observed posted to the board warned members not to support the slate he is a member of. A second flyer was placed on the wall immediately adjacent to the union board; this flyer advocated for another slate competing in the delegates and alternate delegates election.
Perez took a photo of the union board as proof of the impermissible postings. The photo’s digital properties showed that the photo was taken at 7:27 a.m. on December 1, 2020. Perez filed this protest the same date at 7:00 p.m.[1]
Unbeknownst to Perez, Dan Vera, the business agent responsible for Cemex-South Miami, reviewed the union board there at or shortly after 9:00 a.m. the same day, when he was at the facility for a meeting. He observed the campaign flyers and removed them.
After principal officer Josh Zivalich received the docketed protest on December 2, he phoned Vera to inquire about the campaign flyers on the union board and to instruct that they be removed. Vera replied that he had seen and removed the flyers the previous day. Zivalich instructed Vera to contact the steward at the facility to address the issue. Vera did so. The steward told Vera that he had no knowledge that campaign flyers were posted on the union board, learning it when Vera phoned him. The steward told our investigator that the board is located in the drivers’ breakroom, and he has infrequent reason to enter that room in the course of his workday. Vera instructed the steward to monitor the board more closely and to insure that only official union notices are posted there.
Article VII, Section 12(c) prohibits use of union assets for campaigning. Section 12(d) of the same article permits members to use union bulletin boards for campaigning if they had the preexisting right to do so. Past practice determines whether a union bulletin board may permissibly be used to campaign. Rodriguez, P348 (February 1, 1996); Blake, P953 (October 30, 1991); Meyer, P130 (October 12, 1995); Cooper, 2005 ESD 8 (September 2, 2005). Where there is no past practice, there is no right to post campaign literature on a bulletin board. Lambert, P359 (February 26, 1996); Bolen, 2006 ESD 73 (February 7, 2006); Deaver, 2006 ESD 74 (February 7, 2006).
The facts of this case demonstrate that no preexisting right to post campaign flyers on the union bulletin board at Cemex-South Miami existed because the board, despite being open and unlocked, had been maintained exclusively for official union notices over many years. Accordingly, posting of campaign flyers violated Article VII, Sections 12(c) and 12(d) of the Rules.
We find that Vera’s prompt removal of the campaign flyers upon discovery and before the protest was filed, as well as his instruction to the steward to monitor the board more closely for impermissible campaign material, remedies the violation found here. On this basis, we deem this protest RESOLVED.
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. Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i). All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Barbara Jones
Election Appeals Master
IBTappealsmaster@bracewell.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, all within the time prescribed above. Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Barbara Jones
2020 ESD 34
DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
braymond@teamster.org
Edward Gleason
egleason@gleasonlawdc.com
Patrick Szymanski
szymanskip@me.com
Will Bloom
wbloom@dsgchicago.com
Tom Geoghegan
tgeoghegan@dsgchicago.com
Rob Colone
rmcolone@hotmail.com
Barbara Harvey
blmharvey@sbcglobal.net
Kevin Moore
Mooregp2021@gmail.com
F.C. “Chris” Silvera
fitzverity@aol.com
Fred Zuckerman
fredzuckerman@aol.com
Ken Paff
Teamsters for a Democratic Union
ken@tdu.org
Jose Perez
jp305cemex@yahoo.com
Teamsters Local Union 769
office@teamsterslocal769.org
Josh Zivalich
jzivalich@teamsterslocal769.org
Roly Piña
office@teamsterslocal769.org
Dolores Hall
dhall@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com
[1] He apparently attempted to file the protest before 7:00 p.m. on December 1 but was unable to do so because of technical issues navigating the ibtvote.org website.