April 17, 1996
VIA UPS OVERNIGHT
Keith Barros
16055 Via Del Sol
San Lorenzo, CA 94580
Marty Frates
Teamsters Local Union 70
70 Hegenberger Road
Oakland, CA 94621
Re: Election Office Case No. P-648-LU70-CSF
Gentlemen:
Keith Barros, a member of Local Union 70, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Marty Frates, a Local Union 70 business agent. The protester alleges that Mr. Frates retaliated against the protester by distributing to his co-workers copies of protests he has previously filed. The protester contends that the protest documents themselves and information included in the documents, including the protester’s home address and telephone number, are confidential. Additionally, he objects to Mr. Frates distributing the protests on union time.
Mr. Frates admits distributing protests filed by the protester and responds that such distribution does not violate the Rules.
Regional Coordinator Matthew D. Ross investigated this protest.
The protester was a candidate for delegate from Local Union 70 on the Ron Carey slate. Mr. Frates was a candidate for delegate on the opposing Hoffa-Mack slate. The Local Union 70 delegate election was held on March 12, 1996.
Keith Barros
April 17, 1996
Page 1
In addition to this protest, the protester previously filed P-601-LU70-CSF and P-604-LU70-CSF, both of which were decided in Schneider, P-453-LU70-CSF (April 12, 1996). In P-601-LU70-CSF, Mr. Barros alleged that Mr. Frates improperly campaigned on union time by wearing a Hoffa-Mack campaign hat and T-shirt when he visited Mr. Barros’s workplace. In P-604-LU70-CSF, Mr. Barros alleged that Local Union 70 Secretary-Treasurer Chuck Mack improperly used the local union telecopy machine to prepare and transmit a protest to the Election Office. Mr. Frates received copies of both protests from the Election Office.
After the election, on or about March 18, 1996, Mr. Frates handed out approximately 100 copies of P-601-LU70-CSF and P-604-LU70-CSF to union members working at the United Parcel Service facility in Oakland, California, where the protester works. When distributing the protests, Mr. Frates told employees, “Hey, here are some protests I thought you should know about,” or made a similar comment indicating that the protests were for the information of the employees. Although generally alleging a retaliatory act, the protester does not contend that Mr. Frates made any comments while distributing the protests that threatened the protester or encouraged anyone else to retaliate against the protester.
“[T]he right of IBT members to file, free from retaliation, election protests, even protests which are found to be non-meritorious, goes to the heart of the safeguards mandated by the Rules and the Consent Order.” In Re: Sullivan, 95 - Elec. App. - 2 (KC) (July 14, 1995) (citing Puglisi, P-1074-LU64-ENG (November 25, 1991), aff’d, 91 - Elec. App. - 242 (SA) (January 23, 1992), aff’d, 88 Civ. 4486, slip op. (S.D.N.Y. 1992)). The Rules explicitly provide, in Article XIV, Section 1, that “[a]ny member . . . may file a protest with the Election Officer alleging non-compliance with the Rules, free from retaliation or threat of retaliation by any person or entity for such filing.”
At the same time, union officials and members have free speech rights protected by the Labor-Management Reporting & Disclosure Act of 1959, as amended (“LMRDA”), 28 U.S.C. § 401(a)(2), which is incorporated into the Rules pursuant to Article XIII and provides, inter alia, that “[e]very member of any labor organization shall have the right . . . to express any views, arguments, or opinions . . .” In accommodating free speech rights with campaign limitations, the Election Officer has recognized the right of union officials to advise and report to the membership “on issues of general concern.” Martin, P-010-IBT-PNJ (August 17, 1995) (decision on remand) (quoting Camarata V. IBT, 478 F. Supp. 321, 330) (D.D.C. 1979), aff’d, 108 LRRM (BNA) (D.C. Cir. 1981). The protests filed here by a local union member alleging improper conduct by local union officials are of legitimate concern to local union members.
Keith Barros
April 17, 1996
Page 1
In In Re: Sullivan, supra, the Election Appeals Master held that a union officer’s “colorful and emotional” response to a protest objecting to conduct by the officer, delivered from the podium at a union meeting, did not retaliate against the member who had filed the protest. The officer identified the protesters and repeated each allegation in the protest and gave his response. The Election Appeals Master acknowledged that the officer had a right to defend himself from allegations of serious misconduct. The Appeals Master further noted that the officer did not create an atmosphere of hostility toward the protester, did not attack the protester, did not threaten him or encourage others to retaliate against him.
In this case, Mr. Frates, during the protested distribution of the protests, did not threaten the protester and did not encourage any union member to threaten or retaliate against the protester. Nor did he say anything derogatory about the protester or convey any hostility toward him. The Election Officer does not find that in the circumstances presented here, there is evidence that Mr. Frates retaliated against the protester by distributing his protests. While the protester protests that his right to confidentiality was violated by the distribution of the protest, Mr. Frates’ free speech rights protect that distribution. In Re: Sullivan, supra.
Lastly, the protester objects that Mr. Frates distributed the protests on union time. While the Rules prohibit a union official from campaigning on union time, the distribution of the protests by Mr. Frates, as described here, was not campaigning. Mr. Frates’s distribution of the protests filed by the protester to union members, under all of the accompanying circumstances, is protected and does not violate the Rules.
Based on the foregoing, the protest is 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
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
Matthew D. Ross, Regional Coordinator