Teamsters United, 2017 ESD 384

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: TEAMSTERS UNITED,                 )           Protest Decision 2017 ESD 384

                                                                        )           Issued: February 15, 2017

            Protestor.                                           )           OES Case No. P-394-101916-FW           

____________________________________)                      

Teamsters United filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Teamsters United campaigners were denied campaign access rights in violation of the Rules.

            Election Supervisor representatives Chris Mrak and Deborah Schaaf investigated this protest.

Findings of Fact and Analysis

The protest, filed October 19, 2016, alleged campaigning and access violations at several employers under the jurisdiction of Local Union 305.  Our representatives investigated all of the allegations and interviewed all witnesses presented.

This protest arose in the context of the International officer balloting administered under the Rules and Local Union 305’s officers election administered under the IBT constitution.  Ballots in the International officers election were mailed October 6, 2016, with counting of ballots to commence on November 13, 2016.  Ballots in the local union officers election were mailed October 13, 2016 and were to be counted November 4, 2016.

            Two slates competed in the local union officers election.  The Members United slate was roughly aligned with the Teamsters United slate of candidates for International office.  The Team 305 slate was roughly aligned with Hoffa-Hall 2016. 

            We detail our findings with respect to the alleged Rules violations at each work location.

            Toyota Logistics.  At this employer on October 14, 2016, Teamsters United campaigners arrived to canvass employees in the parking lot.  Toyota security contacted management, and the campaigners were escorted onto the lot and permitted to station themselves adjacent to the door to the facility that employees used to enter and exit the workplace.  During their time canvassing, the campaigners observed that some members exiting the facility were carrying Hoffa-Hall 2016 flyers.  The campaigners saw the car of local union business agent Chris Campbell in the parking lot and became suspicious that he was campaigning inside the facility in violation of the Rules. 

Campbell denied campaigning to our representative, denying further that he had any campaign literature with him that day.  He stated that he had a 30-minute meeting with Toyota management on October 14 to discuss four grievances and, following that appointment, met with stewards in the facility’s lunchroom for 30 to 45 minutes.  The Toyota manager with whom Campbell met corroborated the meeting to our representative, but stated he was unaware of Campbell’s activities after the meeting.  We found no witness who contradicted Campbell’s denial of campaigning in the lunchroom during his meeting with stewards.  Accordingly, we DENY this allegation for lack of sufficient evidence to establish that Campbell campaigned on time paid for by the union or used his union status to gain access to a portion of the facility where campaigning would not be permitted.

Dannon YoCream.  Teamsters United campaigners were directed to leave the employee parking lot when campaigning there on October 11.  The campaigners alleged that local union business agent Konopa interfered with their campaign rights by getting management to remove them.  Konopa denied doing so.  Dannon’s HR manager corroborated Konopa’s denial, stating that Dannon received bad legal advice from their labor lawyer, which the lawyer reversed promptly after being informed by OES of the Rules and the court order permitting parking lot access.  We considered this aspect of the protest RESOLVED when the employer promptly reversed its position and permitted the campaigners to return to the employee parking lot.

Darigold.  In the course of the investigation of this protest (filed October 19), a witness asserted that in September he and others were directed to leave an employer parking lot, in violation of the Rules.  They moved to the street.  They did not protest or otherwise seek OES help in regaining access at the time of that incident. We DENY any relief for this incident because it was not protested timely. 

On October 14, the business agent responsible for servicing Darigold, Steve Pickles, was on a vacation day to run some errands.  He stopped at Darigold to address some scheduling issues with the HR manager there.  While at the site, he spoke with two stewards to inform them of the results of his meeting with HR.  He told our representative that he “may have” given the stewards some campaign flyers during that discussion.  On these facts, we find insufficient evidence to substantiate a Rules violation, the evidence establishing that Pickles was on personal time and suggesting that delivery of campaign literature was incidental to the union business he was conducting that day.  Accordingly, we DENY this aspect of the protest.

Auto Warehouse.  Investigation showed that business agent Campbell was seen talking to employees about Hoffa in the secured parking lot that requires a key card to access.  Campbell told our representative he was conducting union business with a member in that lot.  He denied campaigning.  No Teamsters United campaigner had a key to the parking lot; they therefore campaigned on the street.  Investigation found no evidence that the Teamsters United campaigners requested access to the locked lot and were denied.  If evidence showed that Campbell was campaigning inside the secure lot and Teamsters United campaigners had sought and been denied similar campaign access, the employer might be liable under the Rules for permitting discriminatory access.  Without such evidence, we DENY this aspect of the protest.

Frito-Lay.  In the course of the investigation of this October-filed protest, a witness raised an incident at Frito-Lay in September when Teamsters United campaigners were directed to leave the employee parking lot.  OES was contacted at that time, intervened promptly, and obtained a resolution of the matter (without the filing of a protest) by which the employer agreed to permit parking lot campaign access if canvassers called to state they were en route.  More than a month later, a witness told our representative he was denied entrance to the secured facility; however, no evidence was presented that he called to gain access or sought OES’s intervention to assure compliance.  The witness stated that while he waited outside the gate, a local union officer with business agent responsibilities at the facility entered the gate.  Investigation showed that the business agent conducted union business during the visit.  He denied campaigning during his visit, denying further that he had campaign flyers with him.  There is insufficient evidence to counter this denial.  Accordingly, we DENY this aspect of the protest.

Waste Management.  In the course of the investigation of this protest, an allegation was made that the employer impermissibly surveilled Teamsters United campaigners at Waste Management.  The employer’s district director told our representative that he observed four to six people he did not recognize show up in his parking lot.  He approached them to ask their business.  They replied they were from Local Union 305 and were there to campaign.  He asked for authorization; they returned with the OES advisory on parking lot campaigning.  The manager reviewed the advisory and determined it was sufficient to permit them to campaign there, so he left them to their business. 

Approximately one week later he saw campaigners again, this time across the street from the parking lot on the property of another employer.  The manager took a photo of the campaigners but did nothing with it and did not remain outside watching them.

The manager stated that, with the first group, he told them he had been in the bargaining unit for 15 years.  He also brought the campaigners water.  On these facts, we find no Rules violation and DENY this aspect of the protest for lack of evidence.

Safeway.  The protest alleged that on October 17, 2016, local union business agent Kevin Oakley campaigned for the Hoffa-Hall 2016 slate inside the employer’s facilities at Safeway, another employer under the local union’s jurisdiction.  Evidence established that business agent Oakley used Safeway’s locked mailboxes on October 17 to distribute Hoffa-Hall 2016 literature.  Safeway maintained the locked mailboxes for official purposes; it also permitted the local union to use the boxes for distribution of similar official material.  Video evidence showed the business agent opening and placing campaign flyers in the mail boxes.  A Safeway manager told our representative that union use of the mailbox privilege was not permitted for partisan campaign material.  Accordingly, Oakley’s use of the mailboxes violated the Rules.

During October 2016, Safeway drivers were transitioning to work at Albertson’s at a different worksite, the result of a merger between the two grocery chains.  As of October 17, some 14 drivers remained at the Safeway worksite; these individuals had mailboxes in the bank of such boxes into which Oakley inserted partisan flyers, a number that was down from the 22 who previously had mailboxes there.  We examined the voting participation by the 14 drivers who received the partisan material.  Six did not return a ballot.  The ballot of one was received at the ballot count site in Alexandria VA on October 17, the same date Oakley placed the flyers in the Albertson’s mailboxes.  The ballot of three voters were received in Alexandria on October 19, two days after the date of the flyer distribution.  USPS service standards indicate that a first class letter mailed in Portland OR is expected to be received in Alexandria VA three days after mailing.  The ballots of the remaining four voters were received on October 21 or 25; we conclude that only these four members mailed their ballots after the date Oakley placed campaign flyers in their mailboxes.  Because use of exclusive employer apparatus for a campaign purpose risks communicating to employees the employer’s support for a candidate, Oakley’s conduct violated the Rules.  However, we evaluate this conduct in a post-election context, pursuant to Article XIII, Section 2(f).  We may remedy a Rules violation in a post-election context only if the conduct may have affected the outcome of the election.  In the International officers election, thousands of votes separated winning from losing candidates.  As such, a violation affecting four voters at Safeway in Portland OR did not affect the outcome of any contest in the International officers election.  Accordingly, we DENY this aspect of the protest.

We have considered all other arguments raised in the protests and conclude that they are without merit.

For the reasons stated, we DENY this protest, except for that aspect of the protest that we deem RESOLVED, as indicated above.

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.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Supervisor in any such appeal.  Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.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, c/o Jeffrey Ellison, 214 S. Main Street, Suite 212, Ann Arbor, MI 48104, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:       Kathleen A. Roberts

            2017 ESD 384

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