Vasquez, 2021 ESD 104

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

 

IN RE: JAIME VASQUEZ,                         )           Protest Decision 2021 ESD 104

                                                                        )           Issued: April 9, 2021

Protestor.                                           )           OES Case No. P-114-031721-FW

____________________________________)

 

Jaime Vasquez, member and principal officer of Local Union 542, 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 members and supporters of the Members for Members 542 slate have repeatedly violated the Rules by using subterfuge to gain entry to employer worksites for the purpose of campaigning.

 

Election Supervisor representative Michael Miller  investigated this protest.

 

Findings of Fact

 

The Rules permit only two forms of access by non-employees to employer premises:  (1) the “parking lot rule,” Article VII, Section 12(e), which creates a limited right for non-employees to campaign in parking lots where members park their cars;[1] and (2) the “pre-existing right” rule, Article VII, Section 12(d), which affirms the right of non-employees to access other parts of employer premises under a “preexisting” right or practice or where they have been granted access on a non-discriminatory basis expressly for the purpose of campaigning.  Gasman, P-966 (October 14, 1996); Thomas, P-922 (September 30, 1996); Morales & Kowalski, 2021 ESD 77 (March 10, 2021).  Where a right exists under Article VII, Section 12(d), the provision declares that “[n]o restrictions shall be placed upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature … or engage in similar activities on employer … premises.”  To find such a past practice, “the evidence must show knowledge and toleration on the part of the employer.  Evidence of unauthorized and unknown incidents is insufficient.”  McDonald, P-1014 (October 15, 1996); Batham, 1996 EAM 225 (August 16, 1996) (requiring “concrete evidence that the employer representatives at the site knew about, and permitted,” the campaign activity alleged to constitute a past practice).

 

The protest here alleged that members of a particular slate have gained access to employer premises beyond the employee parking lot not by exercising a preexisting right or by explicitly requesting campaign access.  Rather, the protest alleged that members of that slate used false pretenses to gain access to employer premises and, once inside, they engaged in campaign activity in areas where there was no preexisting right to do so.

 

Local Union 542 will elect 10 delegates and 6 alternate delegates to the IBT convention.  The Members for Members 542 slate, comprised of rank-and-file members, is competing against the Teamsters 542 Members First slate, consisting of local union officials and rank-and-file members.  The protestor here is the lead delegate candidate on the Teamsters 542 Members First slate.

 

The protest identified three instances in which candidates on the Members for Members 542 slate improperly gained access to work premises or sought to do so.  We investigated each instance.  In the course of addressing other protests arising out of this local union’s delegates and alternate delegates election, we identified and investigated other instances where the Members for Members 542 slate gained improper access at other locations. 

 

Praxair.  Candidates on the Members for Members 542 slate visited this facility, on Newton Avenue in San Diego CA, on March 16, 2021.  The protest alleged that they identified themselves as “with the union” and requested permission to enter the premises for the purpose of inspecting the union bulletin board.  Once inside the workplace, however, the candidates engaged in campaign activity.

 

Facilities manager Chris Troemel told our investigator that four men appeared at his office and asked to inspect the union bulletin board.  The men identified themselves as “with the union.”   Troemel did not know the men and had not seen them before.  Nonetheless, the men told him Local Union 542 was in the midst of an election, and they needed to verify the accuracy of the bulletin board postings.  Troemel told our investigator he took one of the men to the bulletin board, located in a room which serves both as the route room for drivers and their breakroom.  Troemel showed the man the board and then returned to his office, leaving the man to do the inspection he requested.  When Troemel returned to the route room after the men had departed the facility, he saw that the “union man” had left campaign flyers and voting postcards on the route table in the breakroom where drivers pick up their work assignments.  Troemel said company policy prohibited any kind of political activity on the premises, so he removed the campaign material.  

 

Derek Correia, lead candidate on the Members for Members 542 slate, told our investigator that he and other slate members visited Praxair that day.  Correia is employed by UPS, not by Praxair.  He said they spoke with the front desk clerk, who referred them to the manager.  They told the manager they “were Local Union 542 members and wanted to check out the delegate list.”  The manager told Correia he could “go right on back,” and Correia proceeded to walk back there.  He found the list posted in good order, then walked back out. He denied placing campaign flyers or slate cards in the breakroom where the board was located.  The men then went outside, saw there were no members to canvass, and went on to their next campaign stop.

 

Craig Chappell, delegate candidate on the Members for Members 542 slate, told our investigator that he was with Correia during the Praxair visit.  Chappell is employed by YRC, not by Praxair.  He said his slate has been campaigning at “well over 40” worksites over many weeks.  He said the group typically arrived at a worksite unannounced and approached the management office, saying that they wanted to inspect the union bulletin board.  When our investigator asked repeatedly how they identified themselves to the manager, Chappell consistently stated he could not recall precise language.  At Praxair on March 16, Chappell said they met the facilities manager, who agreed to let them see the board. Chappell said he “could not remember exactly” what they told the manager by way of identification.  Chappell remained at the front of the facility while Correia went back to inspect the board.  Chappell said he did not know what Correia did inside the facility.  When asked if Correia left campaign flyers and slate cards in work areas and/or in the break room, Chappell responded “not that I know of.”

 

We credit Troemel and reject the statements of Correia and Chappell.  Troemel’s evidence established that the men identified themselves as “with the union,” and purported to enter the premises for the purpose of inspecting the union bulletin board to insure that it contained appropriate notices.  They did not disclose that their purpose was to campaign.  We further credit Troemel’s evidence that he found campaign flyers and postcards in the route room after the men had left, and we conclude that Correia left them there.  On these facts, we find that Correia gained access to a work area—the route room, frequented by employees—and he did so for the purpose of leaving campaign material that they would find.  The campaigners used the phrases “with the union” and “inspect the bulletin board” as a ruse to gain entry to work areas they had no right to access.  We find no evidence of a preexisting right to access this portion of the employer premises; to the contrary, we credit Troemel’s evidence that campaigning inside the workplace is prohibited.

 

In crediting Troemel, we find that Correia and Chappell falsely denied their actions.

 

LBC Mundial.  As documented in Correia and Sauceda, 2021 ESD 97 (April 9, 2021), candidates on the Members for Members 542 slate visited this worksite on March 16, 2021 “to check the Union Bulletin board to verify if the Delegate list for the upcoming election was posted.”  LBC Mundial is a Philippines-based small package courier with retail offices in 30+ countries, including the US.  The office in National City CA is located in a strip mall and caters to retail customers.  Local Union 542 has 6 members employed at this location, 3 office clerks and 3 courier drivers.

 

One of the office clerks, a 15-year employee, is the steward responsible for maintaining the union bulletin board.  She told our investigator that she was working the front customer service intake desk on March 16 when two men in black Members for Members 542 t-shirts came inside, approached the counter, and said they were “with the union.”  She said they asked to see the union bulletin board.  She had never seen them before and did not know who they were.  They assured her they were “from the Teamsters,” so she told them they could come behind counter, and she escorted them to the board in the rear of the building, near the employee breakroom.  She would not have permitted customers, people off the street, or even campaigners into the back because the nature of LBC Mundial’s business requires that security be maintained.  Because she understood that the men were with the union on business, she took them to the bulletin board and returned to staff the front counter.  She did not know what the men did in the back.  They left after only a few minutes.  When she went to the breakroom a brief time later, she found campaign flyers for the Members for Members 542 slate that had not been there before the men’s visit.  The clerk told our investigator the men had deceived her, that their true purpose was to gain campaign access to the work area under the guise of inspecting the union bulletin board.  

 

Correia denied to our investigator that he misrepresented himself as a union official or on official union business to gain access to this facility or the “30 to 40” other facilities where he said he had checked the union bulletin boards over the past several weeks.  He stated that he often walked into these facilities to check the boards while carrying his campaign flyers, but flatly denied passing flyers out to workers once inside or leaving copies of flyers in break rooms or work areas.  When our investigator pressed Correia on how he identified himself to gain access inside all these facilities where he did not work nor had ever been, Correia acknowledged that he sometimes said he “was part of Local 542,” but he said he never identified himself as a business agent.   

 

Norman Sauceda, another candidate on the Members for Members 542 slate, was with Correia for the LBC Mundial visit.  Sauceda is employed by UPS, not by LBC Mundial.  He told our investigator that either he or Correia told the female clerk that “they were with Local 542” and they wanted to inspect the union bulletin board.  Immediately after he made this statement to our investigator, Sauceda corrected himself, said he wanted to retract the statement, and stated instead that he “can’t remember” exactly what he or Correia told the front desk clerk.  He asserted, however, that they told the clerk they “were delegates.”  Sauceda said the clerk agreed to take the men behind the counter, and she walked them back to the board.  Sauceda stated that while in the back they did not speak with any other employees; instead, they merely inspected and took photos of the board, and left.  Sauceda denied that they left campaign flyers in the back of the facility.  

 

On these facts, we credit the LBC Mundial clerk and reject the statements of Correia and Sauceda.  Factors leading to our conclusion are the clerk’s evidence, the campaign flyers she found in the breakroom, and the dissembling statements of Correia and Sauceda.  In crediting the clerk, we find no preexisting right to campaign inside the employer’s premises and no express grant of campaign access.  Further, we find that Correia and Sauceda falsely denied their actions.

 

YRC Otay.       On February 24, 2021, Chappell went to the YRC terminal in Otay CA to campaign.  As noted previously, Chappell is employed by YRC but at a different terminal.  Otay terminal manager Guillermo Soriano told our investigator that Chappell came into his facility with about 3 to 4 other men, asking to talk with members “about union business.”  Soriano knew Chappell as a union safety trainer and YRC driver from the company’s Terminal 641 MiraMar facility, so he saw no reason to decline Chappell’s request.  He let him come inside and went back to his office in the front of the building.  Soriano later learned that Chappell had spent the next 10 to 15 minutes, while the men were on employer-paid time but before they were dispatched, soliciting campaign support for some kind of political activity.  YRC prohibits any such activity inside its facilities, including on the truck dock; it also prohibits campaign activity directed to workers who are on the clock.  

 

A member of Local Union 542 employed at the Otay terminal provided corroborating evidence.  He told our investigator that Chappell and another man entered the terminal and approached the front office clerk’s desk, telling the clerk, “We’re here campaigning, have some donuts, can you help us?  It will only take a minute.”  The clerk then showed them into the branch manager’s office, and the member heard Chappell tell Soriano, “We want to talk to the members.  I’m here with Local 542.”  The branch manager let them in and from that point on, according to the member, they had free run of the facility, talking with members, passing out their flyers and cards.  The member told our investigator, “They were walking all over the place,” passing out donuts along with their campaign material.  The member did not know how long the campaigners stayed because he had to get to his rig to leave.  He stated, however, that, “Everyone inside was on the clock.”  Before he left on his route, the member noticed that the campaigners went out on the dock and gathered about 5 drivers for politicking.

 

Another member arrived for work after the campaigners had left and was surprised to see campaign material “all over the inside of the dispatch room,” where members have to come and go to get their delivery assignments every day.  The member affirmed that the company does not allow any kind of campaigning on the premises except in the parking lot.

 

Chappell told our investigator he knew campaigning was not allowed in work areas where members were on the clock and where company policy prohibited on-site campaigning.  He said he did not break those rules.  He stated further that he usually did not have to identify himself at the facilities that he visited, because most people knew who he was, especially in the trucking division where he had worked for so long.  He stated he did not remember if he or his group identified themselves as “from the union,” and repeated that at the trucking facilities he visited with his team “introductions were not necessary” because “everybody knows me.”  Chappell stated that any member who said he found campaign material in the dispatch room was “a liar” but said he “can’t remember” if he campaigned to members there who were “on the clock.”

 

On these facts, we credit Soriano and the two corroborating witnesses and reject Chappell’s statements.  We find no preexisting right to campaign in the workplace of YRC Otay to employees on the clock, a fact that both Soriano and Chappell agreed upon.  While one witness stated that Chappell told the clerk he was there to campaign, facility manager Soriano credibly denied learning that was Chappell’s purpose until after Chappell had left the premises. 

 

Reddaway 47^th Street.  Terminal manager Chris Lines told our investigator that Chappell “and another guy” came into his facility unannounced and unexpected on “some kind of union business.”  Chappell said he wanted “talk to your people.”  Lines knew Chappell as a long term YRC driver from another facility, and figured that he was there on a legitimate union matter, so he told him he could go on in.  Lines said Chappell did not tell him he was there to campaign.  Lines allowed Chappell to go to the break room.  Lines went back to his office, leaving Chappell alone to do what he thought was union business.  Only later did Lines learn from his workers holding the campaign flyers that Chappell had been campaigning to them, all of whom were on the clock.  Lines estimated that Chappell met with at least half of the terminal’s 50 drivers.  Lines affirmed that the employer prohibits campaigning in the workplace and campaigning to employees on the clock.

 

A member told our investigator that Chappell and others entered the workplace through the loading dock and went into the drivers’ room, where they asked to speak with the terminal manager.  They went to Lines’ office, and Lines returned to the drivers’ room with Chappell and the others, then left them there to speak with employees.  After Lines left, the men started campaigning for their election.  All the employees they talked with were on the clock.  The campaigners collected names, email addresses, and mobile phone numbers for future campaign support.  They handed out flyers and slate cards to everyone in the room they tried to engage with.

 

Another driver told our investigator that he saw the men from the Members for Members 542 slate, some of whom he recognized from the 2019 officers election, campaigning in the drivers’ room late in the day.  They were passing out their campaign flyers and slate cards, promoting their candidacy, and taking down the members’ names and contact information on clip boards.

 

Chappell admitted that his purpose in visiting this and other worksites was to campaign.  When campaigning, Chappell and others passed out flyers and slate cards among the workers, and collected names, phone numbers, and email addresses for as many as would volunteer this information. 

 

Chappell admitted campaigning at Reddaway but said he “can’t recall” campaigning inside any work facilities, Reddaway included.  Chappell claimed his typical approach, which he suggested he repeated at Reddaway, was to ask where workers parked their cars so that he and his fellow campaigners could campaign in the parking lot. 

 

On these facts, we credit facility manager Lines and the two corroborating witnesses and reject Chappell’s statements.  We find that Chappell and others campaigned inside the Reddaway terminal to members who were on employer-paid time, and that there was no preexisting right to do so nor an express grant of campaign access. 

 

Costco.  Two witnesses, interviewed separately, told our investigator that candidates on the Members for Members 542 slate campaigned inside Costco stores.  One witness, an employee at the Costco store on E. H Street in Chula Vista CA, stated that on February 24, 2021, Members for Members 542 campaigners sought to enter the store, telling management they were on union business.  The store manager did not permit them to enter; instead, she informed them that they could campaign in the employee parking lot only.

 

A second witness, employed at the store on Broadway in Chula Vista (approximately 5 miles from the first) told our investigator that, on February 24, 2021, she was working the exit position at the store when 3 men, all wearing Members for Members 542 slate gear, entered through her position rather than the entry portal.  They were not employees of the Chula Vista store.  A while later, she took her authorized break and observed the campaigners speaking with employees who were on duty in the area of the employee time clock and in the store’s break room.  She said that the break room was full of employees, coming, going, and resting.  Campaigners were distributing campaign flyers and slate cards to the employees in the room, and also collecting their names and contact information on clipboards, telling employees “we need to update our information.”   The witness told one of the campaigners they were violating company policy.  He replied that the store manager had given them permission.  The witness subsequently described the situation to local union business agent Nicole Morena, who replied that the men should not be campaigning there.  Morena indicated that she would speak with the store manager.  Later the same day, the witness spoke with the manager, who said she “checked with corporate” and was advised that the campaigners were permitted in the employee parking lot only and not in the store or the breakroom.

 

Correia denied that his slate members campaigned inside the Chula Vista store on Broadway, stating that they had campaigned inside only one Costco store, in San Marcos, and had otherwise limited their Costco campaigning to employee parking lots.

 

The evidence of Javier Sanchez, a Costco employee at the Moreno Blvd. store in San Diego, differed from what Correia told our investigator.  Sanchez initially stated that he had limited his Costco campaigning to employee parking lots.  When pressed, however, he stated that he had campaigned inside 3 Costco stores, including his own, the San Marcos store Correia identified, and the Broadway store in Chula Vista.  At his own store, Sanchez said that his immediate supervisor, Brandon Ruiz, agreed to let him handbill in the break room.  When Sanchez attempted to campaign there again a few days later, the store general manager told him that campaigning inside the store was not allowed, overriding the permission Ruiz had granted.  At the store in San Marcos, where Sanchez is not employed, he said that a supervisor named Deborah agreed to let him campaign inside the break room.  Finally, he said that the store manager at the Chula Vista store on Broadway permitted him to campaign.  Sanchez admitted that, at each store, either the same manager who had permitted the campaign or a higher-ranking manager subsequently told him that campaigning inside stores was not allowed and that he needed to cease and, in the stores where he was not employed, leave.  When he sought permission from supervisors at stores where he was not employed, he said he was “with the union,” adding that he was employed at the Moreno Blvd. store.  When our investigator asked Sanchez why he persisted in attempting to campaign inside Costco stores after store management told him it was not allowed, he replied that he did not understand the question.

 

El Centro Regional Medical Center.  Campaigners led by Correia asserted the right to enter this worksite to inspect the union bulletin board.  Management refused them entry.  Instead, management transmitted a digital photo of the bulletin board to Correia.

 

City of Imperial.  Campaigners for the Members for Members 542 slate led by Correia visited the City of Imperial city hall on March 17.  Administrative Services Director Laura Gutierrez denied them access to city hall that day.  One of the campaigners recorded a 15-second video that captured the end of the conversation in which the city official denied them access.  The audio of that clip included the following exchange:

 

Correia: Ok, the other thing is we should be able to access the breakroom just to see if our lists –

Gutierrez: We’re not going to let you in the building right now.

 

            In fact, the campaigners, as non-employees of the city, had no basis under the Rules for contending that they “should be able to access the breakroom” to inspect the bulletin board. 

 

At the time our investigator interviewed him, Correia stated that, over the previous several weeks, he and his group had made about 30-40 campaign stops; of these, he claimed that in only “about 10 places” did they ask to go inside to inspect the bulletin boards.  At two places, El Centro Medical Center, and the City of Imperial, they were not allowed inside, but at all the other places, they were allowed access to inspect the board.  

 

Analysis

 

The evidence this and related investigations gathered showed that campaign groups led by respondent Correia routinely sought access inside employer workplaces, gaining it most of the time by making two claims – that they were “with Local 542” and that they needed to “inspect the bulletin board.”  Sometimes these claims were made to rank-and-file members, such as at LBC Mundial, while other times they were made to managers.  The assertions the campaigners made were calculated to give the impression that they were representatives of the local union seeking to conduct official business of insuring that the union bulletin board displayed the correct postings.  The campaigners, as non-employees, had no right under the Rules to enter the worksites, for any purpose, including so-called inspection of union bulletin boards.  In every instance our investigation uncovered where the campaigners gained access to worksites beyond the parking lots where employees parked their vehicles, they campaigned by distributing flyers and slate cards.  Notably, the campaigners never stated their true purpose when seeking entry, which was to campaign.  Rather, they cloaked their actions under a purported official purpose, intending to create the impression that they were conducting official union business.

 

Campaign groups led by Chappell used a variant of official purpose to gain entry to employer worksites.  While Chappell asked to inspect union bulletin boards, he generally relied on his profile as a union safety trainer to enter freight companies, telling the managers that “we want to talk to your guys.”  Because the managers knew Chappell as a trainer, they permitted him entry, believing that his purpose was to provide safety training from which both the workforce and the employer would benefit.  Instead of providing training, however, Chappell’s purpose was to campaign, which he and those who accompanied him did in the employer’s workplace while the employees they canvassed were on employer-paid time.  Like Correia, Chappell did not tell the freight managers he spoke with that his purpose was to campaign.

 

Article VII, Section 12(d) protects pre-existing rights to campaign in the employer workplace, whether established by past practice or by express permission granted by the employer.  The respondents presented no evidence that a past practice existed at any location discussed in this decision by which non-employees had a right to campaign in employer workspaces beyond the parking lot.  Respondents do not claim a pre-existing right; indeed, for many of the worksites at issue here, the respondents had never visited them previously and had no knowledge of whether a practice permitting campaigning existed.  The evidence our investigation gathered from managers and rank-and-file members alike showed that campaigning in those workspaces was prohibited. 

 

As such, the only basis by which respondents could establish a right protected by Article VII, Section 12(d) was where the employer granted them permission to enter for the purpose of campaigning.  In Zimmerman, 2001 ESD 542 (November 6, 2001), such access was granted.  There, a campaigner was admitted to various buildings by guards staffing lobby security desks, after she told them that her purpose was to campaign.  In that case, Election Administrator Wertheimer held that “[p]resumptive evidence that a preexisting right to campaign inside an employer’s facility under Article VII, Section [12](d) exists where the non-employee campaigner 1) presents herself to personnel authorized to secure the facility and to bar from it non-employees, 2) seeks entry for the express purpose of distributing campaign material, and 3) is permitted entry for that purpose.  Under such circumstances of employer consent, a campaigner may reasonably conclude that a preexisting right to campaign there is in place.”  However, where the campaigners here did not explicitly identify their campaign purpose but, instead, articulated a false rationale for permitting entry, or where they entered without express permission of a manager or security representative with responsibility for controlling access, they may not rely on that entry as permission to campaign.

 

For these reasons, we hold that the entry respondents made into Praxair, LBC Mundial, YRC Otay, and Reddaway and the campaigning they did there, whether simply leaving stacks of flyers or meeting face-to-face with members, violated the Rules.  With respect to these locations, we GRANT the protest.

 

With respect to Costco, we find that corporate policy permits campaigning only in parking lots where employees park and not within the workspace.  At 3 locations discussed in this decision, store managers first granted and then revoked permission, after their initial grants of permission were corrected by corporate labor relations.  Evidence demonstrates that after store management directed respondents to cease campaigning, they did so.  Under these circumstances, we DENY the protest with respect to those Costco locations.  This denial is not to be construed as permission to campaign inside the workspaces of Costco.

 

We turn now to the documented history of false statements respondents made to gain entry to employer workspaces in violation of Article VII, Section 12(d), and the false allegations and false evidence respondents have made to the Election Supervisor.  False statements made to gain impermissible campaign access distort the playing field on which the election is contested.  False allegations and false statements to the Election Supervisor undermine the fair administration of the protest procedure and, by extension, the election, and they are unacceptable.  Article XIII, Section 2(g) establishes that false statements to the Election Supervisor constitute a failure to cooperate under the Rules, which “may result in referral of the matter to the Government for appropriate action under law” or “such other remedy as the Election Supervisor … deems appropriate.”  We have disqualified candidates who made false statements to us.  See, e.g., Richards, 2001 EAD 328 (April 26, 2001), aff’d in relevant part, 2001 EAM 63 (May 14, 2001) (disqualification of candidate affirmed because he “obstructed the investigation and gave conspicuously unbelievable and false statements in the course of his interviews by investigators”); Reyes, 2011 ESD 281 (June 18, 2011), aff’d, 2011 EAM 50 (June 18, 2011) (elected delegate disqualified in part because she gave “evasive and misleading evidence” to the Election Supervisor). 

 

We find that respondents made false statements to the Election Supervisor with respect to how they gained access to employer workspaces at Praxair, LBC Mundial, YRC Otay, and Reddaway.  In addition, as documented in Correia & Sauceda, 2021 ESD 97 (April 9, 2021), we find that the protestors there made a false allegation that the notice of nominations meeting results was not posted on the union bulletin board at LBC Mundial.  In Correia & Robinson, 2021 ESD 98 (April 9, 2021), we found that protestors there made a false allegation that the worksite list supplied to it by Local Union 542 had incorrect addresses on it.  In Correia & Chappell, 2021 ESD 99 (April 9, 2021), we found that protestors there falsely alleged that the employer barred them from campaigning in the employer parking lot where employees park their vehicles.  In Chappell & Correia, 2021 ESD 102 (April 9, 2021), we found that protestors falsely alleged that a Facebook page containing partisan posts was owned by the employer and that a union member who posted there was a supervisor.  In Sanchez, 2021 ESD 103 (April 9, 2021), we found that the protestor made an allegation of Rules violation he knew to be false.  We will not tolerate such conduct.

 

Remedy

 

When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.”  Article XIII, Section 4.  In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.  “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.”  Hailstone & Martinez, 10 EAM 7 (September 14, 2010).

 

            The investigation conducted here was wide-ranging, addressing a breadth of allegations of unfair campaign conduct occurring across multiple employers.  As a result, the list of witnesses who gave evidence was long, and evaluating that evidence and rendering a decision consumed much of the electoral period.  Investigation and analysis related to this protest consumed significant amounts of investigator time.  Ballots will be counted April 14, 2021, and we recognize that most of the ballots to be counted will have been mailed before the notice we order posted will be seen and read by members of Local Union 542.  Under these circumstances, the remedy we order here may prove to be interim.  Nonetheless, the conduct we find respondents engaged in here is wrong and was calculated to give respondents’ slate an unfair advantage in the election.

 

            We order the following:

 

1. We order the Members for Member 542 slate, its candidates, and its supporters to cease and desist from seeking and gaining entry to employer workspaces to campaign, beyond the parking lot where employees park their vehicles, unless they do all of the following:
   1. Inform the person in charge of controlling access, whether that person is a manager, a security person, or a person designated as in charge, that they are candidates or supporters of candidates in the local union delegates and alternate delegates election, that they seek entry for the purpose of campaigning, that they are not representatives of Local Union 542, they are not there to conduct union business, and that any campaign access the employer grants to them will also have to be permitted to other candidates or their supporters.
   2. Video-record the exchange with the person from whom campaign access is sought so that the person is visible in the recording and the person can be heard stating his/her name and position.

The purpose of this portion of the remedial order is to encourage compliance with the Rules, to deter violation of the Rules, and to establish that any access to employer workspaces that is sought is documented for review.  We will regard any failure to document a request for access to employer workspaces with the strict terms of this portion of the remedial order as proof of violation of this provision.

 

1. We order the Members for Member 542 slate and its candidates to produce to the OES bona fide and legible scanned copies of the clipboard sheets on which it obtained names and contact information at every worksite where campaigning occurred.  The slate and its candidates are directed to produce these copies no later than Tuesday, April 13, 2021.  The purpose of this portion of the remedial order is to assess whether the Rules violations found in this decision may have affected the outcome of the election.

 

1. We assess fines against each of the following candidates on the Members for Members 542 slate, in the amount opposite his name:

 

Derek Correia                          $500

Craig Chappell                        $500

Eric Robinson                         $200

Javier Sanchez                        $200

Norman Sauceda                     $100

 

      The fines must be remitted to the OES no later than Tuesday, April 13, 2021.  The fines are strictly remedial in nature and are intended to encourage compliance with the Rules, including the obligation to cooperate with the Election Supervisor by being truthful when making allegations and providing evidence to the Election Supervisor.  The conduct of Correia and Chappell established that they require especial encouragement in this regard.  Robinson, Sanchez, and Sauceda demonstrated lesser culpability, establishing to the Election Supervisor’s satisfaction that lesser fines are needed to obtain their compliance with the Rules.

 

1. We order Local Union 542 to post the notice attached to this decision on all union bulletin boards under its jurisdiction, with posting completed no later than Tuesday, April 13, 2021.  The purpose of this order is strictly remedial in nature and is intended to inform the membership of the requirements of the Rules and that candidates and supporters of the Members for Members 542 slate violated them.

 

1. We reserve further remedy until the ballots in the election have been tallied and we can determine whether the Rules violations found here may have affected the outcome of the election.

 

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

            2021 ESD 104

 

 

 

 

                                                                                                     

     

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

Jaime Vasquez

jvasquez@teamsters542.org

 

Michael Miller

Miller.michael.j@verizon.net

 

Deborah Schaaf

dschaaf@ibtvote.org

 

Jeffrey Ellison

EllisonEsq@gmail.com