Protest Decisions

              March 14, 1996

VIA UPS OVERNIGHT

Chris Mihalow

March 14, 1996

Page 1

Chris Mihalow

11726 Bogardus Avenue

Whittier, CA 90604

Raul Lopez Slate

c/o Raul Lopez, Secretary-Treasurer

Teamsters Local Union 396

880 Oak Park Road, Suite 200

Covina, CA 91724

Bobby Kikuchi, President

Teamsters Local Union 396

880 Oak Park Road, Suite 200

Covina, CA 91724

Luis Anaya

Teamsters Local Union 396

880 Oak Park Road, Suite 200

Covina, CA 91724

Chris Mihalow

March 14, 1996

Page 1

Re:  Election Office Case Nos.              P-522-LU396-CLA

P-528-LU396-CLA

Gentlepersons:

Chris Mihalow, a member of Local Union 396 and a candidate on the Members’ Voice slate, filed two pre-election protests, pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).  Because these protests involve common parties they have been consolidated for decision.

In P-522-LU396-CLA, Ms. Mihalow makes two sets of allegations.  She claims that Raul Lopez, secretary-treasurer of Local Union 396 and a candidate for delegate on the

Raul Lopez slate, drastically reduced the duties of Shop Steward Maurice Watson and replaced him with two new shop stewards.  The protester contends that this action was in retaliation for Mr. Watson’s candidacy on the Members’ Voice slate and therefore was in violation of

Article VIII, Section 11(f) of the Rules.

The charged parties, Mr. Lopez and others on his slate, deny that Mr. Watson’s duties were in fact reduced, and contend instead that his responsibilities were expanded to include supervision of the two new interim shop stewards.

Chris Mihalow

March 14, 1996

Page 1

Ms. Mihalow’s protest also alleges that Bill Ulloa, a Local Union 396 business agent, while on work time, contacted member Mike Peck at this work place, to arrange to leave campaign fliers with Mr. Peck.  Ms. Mihalow further alleges that Mr. Ulloa delivered the fliers to Mr. Peck at his home using a car owned by the local union, in violation of

Article VIII, Section 2(b) of the Rules.

In P-528-LU396-CLA, Ms. Mihalow alleges that Mr. Lopez withheld the information sent to candidates about Local Union 396’s procedures for mailing campaign literature, that the information about the procedures for mailings she did receive was delayed and misleading, and that as a result, she experienced considerable uncertainty as to whether her mailing would be timely.  Accordingly, she chose to forego a second mailing for fear that the problems would recur.  These allegations involve violations of Article VIII, Section 7 of the Rules, which require processing such mailing requests in a complete and timely manner.

Mr. Lopez responds that any delay in receipt of the mailed information was because of an incorrect zip code for Ms. Mihalow’s address in the “Rolodex” of the Local Union 396’s office manager.  When the mistake was discovered, a second mailing of the information promptly remedied the problem.  Mr. Lopez further responds that Ms. Mihalow’s campaign literature was in fact mailed to the local union’s members on the date that she had designated.  Finally, he states that any misinformation was due to a misunderstanding of the Rules.

Regional Coordinator Dolly Gee and Adjunct Regional Coordinator Michael D. Four investigated the protests.

1.  Allegations of Retaliation Against Mr. Watson

Interviews with both union and management, as well as documents, show that the following facts are not subject to dispute.  Additional interim stewards were appointed by

Mr. Lopez.  Mr. Watson’s duties, however, were increased rather than decreased and the manner in which Mr. Watson was notified of these appointments was in accordance with the practice for similar appointments of interim stewards at other work locations.  The Election Officer finds that there is no evidence that he was singled out for discriminatory treatment when his duties as steward were changed, or when the interim stewards were appointed.  Therefore, the Election Officer concludes that no retaliation occurred.

2.  Allegations Concerning Campaigning by Mr. Ulloa

Ms. Mihalow’s protest of Mr. Ulloa’s alleged use of the union-issued car raises issues which were, in part, decided in Mihalow, P-467-LU396-CLA (March 7, 1996).  There, the Election Officer found that even if the use of the car were established (despite conflicting accounts as to whether it was the union-issued car or Mr. Ulloa’s personal car), dropping off campaign-related materials was at most “incidental to regular Union business” and therefore not in violation of Article VIII, Section 11(b) of the Rules.

Chris Mihalow

March 14, 1996

Page 1

While a union staff person may not campaign during work, the Rules permit campaign activity that is incidental to work.  In Newhouse, P-253-LU435-RMT (January 4, 1996), the Election Officer determined that a local union staffperson who solicited an IBT member to circulate candidate accreditation petitions during the course of transacting legitimate union business while on union time did not violate the Rules.  Similarly, short campaign-related conversations between business agents and stewards which occur prior to commencement of contract negotiations do not violate the Rules.  Dillon, P-467-LU284-CLE (March 4, 1991).

It is not disputed that Mr. Ulloa called Mr. Peck at work to discuss dropping off leaflets for Mr. Peck to distribute.  The purpose of the call, however, was to schedule a time and place for Mr. Ulloa to deliver the leaflets to Mr. Peck.   It is also not disputed that

Mr. Ulloa left the leaflets at Mr. Peck’s home.  The short telephone call was incidental to union- and work-related business, and was not a violation of the Rules.  Mr. Ulloa states, and there is nothing to suggest otherwise, that he dropped off the leaflets at Mr. Peck’s home during his lunch break. Accordingly, the Election Officer finds that this campaign activity did not take place during work time.

The remaining issue is whether Mr. Ulloa used his own or a union car to drop the leaflets off.  As in the earlier protest, the Election Officer finds it unecessary to resolve this issue because the use of the car during a lunch break was incidental to union business and not in violation of the Rules.  See Mihalow, supra.

3.  Allegations Concerning Mailing Procedures

Ms. Mihalow protests the delay of her receipt of mailing procedures from the local union. The local union admits that the delay was caused initially by an error in transcribing the zip code for her address in a letter mailed February 8, 1996.[1]  Once the local union learned that Ms. Mihalow had not received the February 8 letter, it made several different efforts to remedy the situation.  A follow-up letter was mailed on February 15.  Mr. Lopez contacted Ms. Mihalow by telephone on February 13 or 14 and again on February 16; and a second set of  the mailing list procedures was sent by UPS on February 16.  Finally, Mr. Lopez himself completed the processing of the mailing labels on February 16 and personally delivered the labels to Ms. Mihalow on February 19.  Mr. Lopez’s efforts meant that the mailing house could and did complete processing of Ms. Mihalow’s mailing on February 21, the date she had requested.

Chris Mihalow

March 14, 1996

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Ms. Mihalow also complains that both the February 8 and February 15 letters from the local union on mailing procedures for campaign literature incorrectly stated that all such literature must be sent by first-class mail and that any mail distributed by bulk-rate permit shall state that it is campaign literature, the contents of which is not endorsed by the union.[2]

Ms. Mihalow contends that as a result of the delay in getting the initial procedures to her, the incorrect information about how the mailings would be made in the procedures and the confusing messages from the local union, she could not risk sending a second campaign mailing fearing that Mr. Lopez would deliberately hinder her campaign efforts.

As to the warnings from the local union concerning their ability to produce the labels on time, the Election Officer finds that these were appropriate warnings about a potential problem (which did not, in fact, materialize), rather than deliberate obstacles to the exercise of her rights protected by the Rules.

The Election Officer also finds that these misstatements concerning the mailing procedures in the correspondence to Ms. Mihalow, although technically inaccurate, were the result of a misunderstanding of the Rules, rather than an effort by Mr. Lopez to injure

Ms. Mihalow’s campaign.  Moreover, the Election Officer finds that there was no injury:  the labels were delivered and the literature mailed in a timely fashion.

Accordingly, the protests are DENIED.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Chris Mihalow

March 14, 1996

Page 1

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile

(202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:               Kenneth Conboy, Election Appeals Master

Dolly Gee, Regional Coordinator

Michael D. Four, Adjunct Regional Coordinator