Sanchez, 2021 ESD 86

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: JAVIER SANCHEZ,                       )           Protest Decision 2021 ESD 86

                                                                        )           Issued: March 16, 2021

Protestor.                                           )           OES Case No. P-104-031121-FW

____________________________________)

Javier Sanchez, member 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 campaign stickers were affixed to employer property in violation of the Rules.

Election Supervisor representative Jim Devine investigated this protest.

Findings of Fact and Analysis

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

Protestor Sanchez, a delegate candidate on the Members for Members 542 slate, protested that stickers advocating for the Teamsters 542 Members First slate were affixed to lockers in the employees-only breakroom of the Costco store on Morena Blvd in San Diego CA.  He first observed them when he reported for work there on Wednesday, March 10, 2021.  Photos the protestor supplied verified that stickers were affixed to at least 10 lockers in that area.  Each sticker was 2-color process, goldenrod over deep red, die-cut in the irregular shape of the IBT horses-and-wheel logo, measuring approximately 4 inches high by 2½ inches wide, and bearing the inscription “Teamsters 542 Members First Slate.”

Investigation showed that Edmond Swank, candidate for alternate delegate on the Teamsters 542 Members First slate and a shop steward at Costco, distributed the stickers when campaigning in the employee parking lot at the Costco-Morena Blvd store where he is employed.  Although he distributed the stickers to members as they were heading into the store, Swank claimed to our investigator that he asked members not to use them in the building.  He acknowledged that many members placed the stickers on their lockers in the employee break area but argued that he could not control what members did with the stickers.  Swank stated further that he did nothing to remove the stickers from the lockers, stating that members would get upset if he “messed with” their lockers.

An assistant warehouse manager for Costco told our investigator that stickers on employee lockers violated Costco standards.  He stated that he instructed maintenance staff to remove the stickers, which was accomplished on Friday, March 12, 2021.

We have held repeatedly that posting campaign material on employer property violates the Rules.  Teamster Power, 2020 ESD 3 (July 3, 2020); Hoffa-Hall 2016, 2016 ESD 64 (January 8, 2016).  Partisan stickers on employer assets and fixtures have the effect of causing the employer to make an improper campaign contribution and giving the false impression of an employer endorsement.  The Rules hold candidates and slates strictly liable for receiving the impermissible employer contribution.  Article XI, Section 1(b)(13).

Swank, a candidate, acted irresponsibly by distributing stickers to members on their way into the workplace.  Although he claimed to our investigator that he hoped members would put the stickers on their cars, they were walking away from their cars when he gave them the stickers.  Not only was it foreseeable to Swank that members would put the stickers on their lockers, it is difficult to conceive that individual stickers carried into a workplace would be put aside for use elsewhere.  For this reason, Swank violated the Rules.  He compounded the violation by failing to take prompt action to remove the stickers himself, once he saw they had been put on the lockers.  His failure to accept responsibility for his action compounded the strict liability the Rules already place on him and his slate.

Swank is a member of a slate of candidates.  His Rules violation is attributable to the slate.

Accordingly, we GRANT the protest.

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).

            We order Edmond Swank and the Teamsters 542 Members First slate to cease and desist from distributing campaign stickers where it is foreseeable they will be affixed to employer assets.  Violation of this order will risk more severe remedial action.

            We order Local Union 542 to post the notice attached to this decision on all union bulletin boards at the Costco, located at 4605 Morena Blvd, San Diego CA, and maintain that posting until April 14, 2021, the date ballots are tallied in the local union delegates and alternate delegates election.  The notice must be posted within two days of the date this decision issues.  Within two days following the posting, the local union must submit a declaration of compliance to the OES.  The purpose of the notice posting is to educate the membership of what the Rules require and that Swank and the Teamsters 542 Members slate have violated them.

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 86

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

Javier Sanchez

javstrz@gmail.com

Edmond Swank

Eswank44@gmail.com

Jaime Vasquez

jvasquez@teamsters542.org

Derek Correia

Dmcorreia13@aol.com

Jim Devine

jdevine@ibtvote.org

Michael Miller

Miller.michael.j@verizon.net

Deborah Schaaf

dschaaf@ibtvote.org

Jeffrey Ellison

EllisonEsq@gmail.com