June 19, 1996
VIA UPS OVERNIGHT
Bruce Blake
1101 West Road
La Habra Heights, CA 90631
Paul Kenny
Teamsters Local Union 630
750 Stanford Avenue
Los Angeles, CA 90021
Re: Election Office Case No. P-785-LU630-CLA
Gentlemen:
Bruce D. Blake, a member of Local Union 848 and shop steward at a Certified Grocers of California ("Certified") facility, filed a pre-election protest pursuant to Article XIV,
Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election ("Rules") against Local Union 630 member Paul Kenny, who is the coordinator for Local Union 630's business representatives at that facility and others. Mr. Blake alleges that
Mr. Kenny retaliated against him for filing an earlier protest.
In his earlier protest, Blake, P-712-LU630-CLA (April 29, 1996), Mr. Blake charged that Mr. Kenny retaliated against him for supporting General President Ron Carey and the Teamsters for a Democratic Union by: (1) accusing Mr. Blake of improperly soliciting grievance reports from Local Union 630 members and (2) complaining about this alleged solicitation to Certified. The Election Officer denied the protest for Mr. Blake's failure to produce evidence that his political views were a motivating factor in Mr. Kenny's actions. The Election Appeals Master affirmed (96 - Elec. App. - 185 (KC) (May 10, 1996)).
Bruce Blake
June 19, 1996
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In the current protest, Mr. Blake charges that Mr. Kenny subsequently issued a notice to all Local Union 630 members at Certified that continues to suggest that Mr. Blake has interfered with Local Union 630's grievance process. Mr. Blake alleges that the bulletin constitutes another act of retaliation: "to most unbiased individuals there is no real purpose for this bulletin from Paul Kenny to Local #630 members except to retaliate against me for filing protest #712."
Mr. Kenny responds that his notice was issued in response to rumors and discussion at Certified following the initial round of dispute. He states that his notice was factual and even-handed. Mr. Kenny further states that he only distributed the notice to 10 shop stewards who serve the facility in question and two others. He had intended them to post the notice, but through miscommunication, none did. Mr. Kenny states that after learning of Mr. Blake's current protest, he instructed the stewards not to post the notice.
This protest was investigated by Associate Regional Coordinator Michael D. Four.
The investigation revealed that Mr. Kenny's notice was not distributed to all Local Union 630 members at Certified. It was placed on the windshield of Mr. Blake's vehicle in Certified's parking lot by one of the 10 recipients, Local Union 630 Shop Steward
Raul Rodriguez, who thought that Mr. Blake should know about it.
The text of the notice was as follows:
This is a reminder that Local 630 members should file their grievances solely through Local 630 Shop Stewards and not through stewards of other Locals or Unions. This is necessary to assure proper processing of Local 630 grievances by Local 630.
A Local 848 steward, Bruce Blake, filed charges with the IBT Election Officer against myself and Local 630 contending that he was being retaliated against and harassed in violation of the IBT Election Rules when I followed up on a complaint that Mr. Blake was soliciting Local 630 members to file their grievances through him. He, like any member, can file any charges and support any candidate. All Charges filed against myself and Local 630 have been DISMISSED by the Election Officer, and Blake's appeal was also DENIED.
The grievance procedure is the method for resolving disputes with the Company. Grievances should be filed with the shop steward of the involved Local regardless of who they support in the IBT Election. Let's keep the grievance procedure free from International Union politics.
Article VIII, Section 11(f) of the Rules states:
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June 19, 1996
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Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules is prohibited.
In evaluating charges of retaliation, the Election Officer has stated that allegations cannot be sustained “unless there is some evidence which connects, expressly or through reasonable implication, the protested conduct with the exercise of a guaranteed right under the Rules.” Mango, P-673-LU726-CHI et seq. (May 29, 1996); Hammond, P-250-IBT-SCE (January 2, 1996). Unless there is such a connection, the Rules do not reach the protested conduct, and the Election Officer will deny the protest.
In this matter, the Election Officer finds that Local Unions 630 and 848 both represent drivers at the Certified facility. Local Union 630 states that "[t]here are currently jurisdictional disputes between Local 630 and Local 848 that go back several months regarding Certified's assignment of driver work . . ." Such issues are of course outside of the scope of the Rules, unless there is evidence that actions ostensibly taken in the course of such a dispute were in fact motivated by politics in the International union delegate and officer election. Finding a lack of such evidence, the Election Officer denied Mr. Blake's first protest without reaching a determination on the merits of the dispute.
The retaliation that Mr. Blake alleges in this protest is that Mr. Kenny had "no real purpose" for issuing his notice "except to retaliate against me for filing protest #712." Retaliation for filing a protest is clearly prohibited under the Rules. "The 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.”
Upon careful consideration, however, the Election Officer finds that Mr. Kenny's notice lacks retaliatory intent or substance. While Mr. Blake states that Mr. Kenny had "no real purpose" for issuing the notice except retaliation, the investigation revealed that
Mr. Kenny had become aware of rumor and discussion at Certified about Mr. Blake's first protest and the dispute over Mr. Blake's alleged solicitation of grievances. The Election Officer has often stated that the Rules do not prohibit local union officers and officials from communicating with members on legitimate issues of ongoing concern. See, e.g., Martin,
P-010-IBT-PNJ, et seq. (August 17, 1995) (decision on remand), aff'd 95 - Elec. App. - 18 (KC) (October 2, 1995); Carter, P-377-LU71-SEC (February 16, 1996) (Notice to members regarding protest filed by member did not violate Rules where it accurately reported on protest). Thus, the Election Officer finds that Mr. Kenny had a legitimate right to address Local Union 630 members on such matters. This finding is supported by the text of
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June 19, 1996
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Mr. Kenny's notice, which acknowledges Mr. Blake's rights to protest and campaign under the Rules: "He, like any member, can file any charges and support any candidate."
The notice also lacks retaliatory substance, in that it makes no threat against Mr. Blake. The Election Officer has found in speech cases that even "heated debate" between members does not cross the line to retaliation unless it embodies a palpable threat of actual harm. See Dunn, P-110-LU25-BOS (July 28, 1995), aff'd 95 - Elec. App. 8 (KC) (August 21, 1995); Kelly, P-600-LU705-CHI et seq. (March 27, 1991); Schweitzer, P-672-LU896-CLA
(March 25, 1991), aff'd 91 - Elec. App. - 118 (SA) (April 3, 1991). In In Re: Sullivan,
95 - Elec. App. - 2 (KC) (July 14, 1995), the Election Appeals Master decided that a local union secretary-treasurer did not violate the Rules when he responded to a member's protest in a "colorful and emotional" manner from the podium at a local union meeting because the speaker did not overtly or implicitly threaten the member. Here, Mr. Kenny does not even criticize Mr. Blake directly.
Mr. Blake contends, however, that Mr. Kenny's notice nevertheless cast him in a bad light by falsely suggesting that he interfered with Local Union 630's grievance procedures. He states that such false allegations may chill his ability to participate in political activities under the Rules, presumably as a supporter for candidates in the International officer election. Such an argument, however, would potentially turn every dispute between union members into an election issue. The Election Officer finds that it would not serve the purposes of the Rules to expand their coverage so dramatically.
For the reasons stated above, 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
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June 19, 1996
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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
Michael D. Four, Associate Regional Coordinator