Halstead, 2017 ESD 385

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: FRANK HALSTEAD,                     )           Protest Decision 2017 ESD 385

                                                                        )           Issued: February 16, 2017

            Protestor.                                           )           OES Case No. P-189-022416-FW           

____________________________________)                      

Frank Halstead, member of Local Union 572, 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 First Student discharged Elva Roman from employment in retaliation for activity protected by the Rules.

            Election Supervisor representative Denise Ventura investigated this protest.

Findings of Fact and Analysis

Frank Halstead led the Teamsters United 572 slate in Local Union 572’s delegates and alternate delegates election.  His slate competed against the Members With Middleton slate for the twelve delegates and seven alternate delegates the local union was authorized to send to the IBT convention.  Halstead’s slate was unsuccessful in the election results tallied on March 9, 2016.  However, we ordered a rerun election in Halstead, 2016 ESD 166 (April 8, 2016), holding in part that interference with campaign activity by First Student – San Fernando, an employer under the jurisdiction of Local Union 572, may have affected the outcome of the election.  We held in part as follows:

The violations at First Student – San Fernando add significant weight to the determination that misconduct may have affected the election results here.  First, ejecting campaigners from a parking lot where they had the right under the Rules to campaign barred candidates from communicating with members for the period of the ban.  Moreover, doing so in a loud and public manner complete with law enforcement involvement as was done at First Student – San Fernando signals very clearly the employer’s preference in the election, a signal reinforced by the employer’s one-sided display of campaign literature for the opposing slate on the employer’s bulletin board and one-sided distribution of that slate’s material at the dispatch counter.  The number of members employed at First Student – more than 140 – is significantly less than at Gate Gourmet, but easily large enough that one-sided campaigning to that population may have affected the outcome of this close election.

We ordered a remedial notice posting on all union worksite bulletin boards under the jurisdiction of Local Union 572 to notify members that a rerun of the delegates and alternate delegates election had been ordered.  The notice read in part as follows:

The Election Supervisor has ordered Local Union 572 to rerun its delegates and alternate delegates election for three reasons: 1) two employers, Gate Gourmet and First Student – San Fernando, impermissibly interfered with campaign rights of candidates and members, 2) a business agent of Local Union 572 encouraged Gate Gourmet to interfere with campaign rights, 3) First Student – San Fernando impermissibly displayed and distributed campaign literature for the Middleton slate, and 4) Local Union 572 impermissibly displayed campaign literature for the Middleton slate on its locked bulletin board at First Student – San Fernando.

Election Appeals Master Roberts affirmed our decision in 2016 EAM 16 (April 21, 2016).  She held that “the facts in this case and the … analysis by the Election Supervisor fully support the remedy of a rerun election and other remedial measures ordered by the Election Supervisor.”

             Local Union 572 conducted the ordered rerun of its delegates and alternate delegates election; the ballots were tallied on May 27, 2016.  As in the first election, the Members With Middleton slate members defeated the Teamsters United 572 slate members for all delegate and alternate delegate positions.  No protest challenged the rerun election or its result.

            The instant protest, filed in February 2016 by the same protestor who led the Teamsters United 572 slate in the local union delegates and alternate delegates election, alleged that Elva Roman was “suspended/terminated” at First Student – San Fernando “for campaigning and supporting the Teamsters United 572 Slate in the Teamsters Union, Local 572 delegate elections” and that the adverse action constituted impermissible retaliation under Article VII, Section 12(g) of the Rules.  Roman’s workplace was the same location from which Halstead and his fellow campaigners were ejected from the parking lot, as documented in Halstead, supra.  Roman was suspended on or about February 24, 2016 pending investigation of alleged misconduct.  She was dismissed from employment on March 1, 2016, some eight days before the tallying of ballots in the initial delegates and alternate delegates election.

            The investigation showed that Roman was issued a warning letter on October 12, 2015 for repeated absence and late reports.  The letter concluded that “[a]ny further violation of company policies, at any time in the future, or failure or refusal to safely and satisfactorily perform job responsibilities, may result in your immediate termination, without recourse or eligibility for rehire with First Student/FGA, any of its locations, affiliates or divisions.”  The termination letter of March 1, 2016 listed six reasons for the dismissal, including an unauthorized stop at a convenience store, calling other drivers to ask that they pick up Roman’s students because of tardiness, having an unauthorized passenger on her bus, having unsecured items in her bus, failure to turn in daily reports of her bus activity timely, and continued absences and failure to report for work timely.

            Roman denied the allegations in the termination letter and asserted that her dismissal was the result of Rules-protected activity in support of Teamsters United 572.

            Local Union 572 filed a grievance protesting her dismissal as not for just cause, in violation of the collective bargaining agreement.  The grievance was processed through the contractual grievance procedure to and including the arbitration step.  Hearing before an impartial arbitrator was convened on September 8, 2016 and concluded on December 12, 2016.  Closing arguments were by post-hearing briefs, and the arbitrator’s decision is expected in late spring or early summer 2017.

            We conclude that our analysis of whether the dismissal of Roman by First Student violates the Rules is better served by awaiting the arbitrator’s award on the grievance protesting Roman’s dismissal.  We are not bound by the arbitrator’s findings of fact, but we conclude that our assessment of the facts of this case may benefit from the evidence presented in that proceeding.  Accordingly, we DEFER decision on this protest until such time as the impartial arbitrator has issued his decision.  We direct Local Union 572 to supply us with a copy of the opinion and award once it is available. 

            We further conclude that any potential for relief on this protest is specific to Roman only and does not extend to Teamsters United 572 or to Teamsters United.  The Rules violations found in Halstead, supra, including election interference by First Student – San Fernando, were remedied in the rerun order, the notice posting that accompanied that order, and the rerun election itself (which concluded without any protest).

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 385

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