Protest Decisions

              September 25, 1996

VIA UPS OVERNIGHT

Roman R. Garcia, Secretary-Treasurer

Teamsters Local Union 435

2941 W. 19th Avenue

Denver, CO  80204

Robert H. Newhouse

6486 S. Saulsbury Street

Littleton, CO  80123

Re:  Election Office Case No.  P-913-LU435-RMT

Gentlemen:

Roman R. Garcia, secretary-treasurer of  Local Union 435, 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”).  The protester alleges that Robert H. Newhouse slandered him by calling him a “rat” in a protest, demanded that persons, including General President Ron Carey, do certain things, and generally intimidated persons by handing out flyers and making statements intending to get a reaction out of the protester, which will disqualify him as a candidate.[1]

Mr. Newhouse responds that this is an internal matter involving Local Union 435 and has no bearing on the International officer election.

Associate Regional Coordinator Zeik Saidman investigated this protest.

Roman R. Garcia

September 25, 1996

Page 1

The Election Officer’s jurisdiction is limited to matters as stated in Article I of the Rules:

Pursuant to the Consent Order, the Election Officer has the authority to supervise all phases of the International Union delegate and officer election, including, where necessary, the authority to conduct, overturn or rerun any phase of that election. The Election Officer has the authority to hear and determine, with the Election Appeals Master, protests and appeals concerning the election. The Election Officer is authorized and obligated to certify election results.

Without a link to the International elections, the Election Officer has no jurisdiction over the protester’s allegations.  Swannie, P-856-LU31-CAN (September 12, 1996) (without link to election process or campaign of candidate, Election Officer is without jurisdiction); see also Doty, P-953-LU504-EOH (September 16, 1996) (investigation of charges where no violation of Rules is alleged is not within the Election Officer’s jurisdiction).

The Election Officer’s investigator contacted Mr. Garcia in order to determine whether his protest involves the International officer election.  In his protest, Mr. Garcia states that

Mr. Newhouse has “demanded persons, including General President Carey to do certain things, or he will take action.”  When questioned about this allegation Mr. Garcia was vague and did not give an example.  Article XIV, Section 1 of the Rules places the burden on the complainants “to present evidence that a violation has occurred.”  Further, the Election Appeals Master has stated that the protester bears the initial burden of proof to offer evidence substantiating his allegations.  In Re: Chentnik, 95 - Elec. App. - 52 (KC) (January 10, 1996).  Thus, the Election Officer finds that Mr. Garcia has not sustained his burden.

Mr. Garcia did state that he objected to Mr. Newhouse’s reference to him as “Roman ‘Rat’ Garcia” in the underlying protest in P-902-LU435-RMT.  The Election Appeals Master has stated, however, that “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).  Thus, referring to a union member by a derogatory name in a protest does not violate the Rules.

For the foregoing reasons, 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:

Roman R. Garcia

September 25, 1996

Page 1

Roman R. Garcia

September 25, 1996

Page 1

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

Zeik Saidman, Associate Regional Coordinator