Gonzales, 2019 ESD 388

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: KENNY GONZALES,                    )           Protest Decision 2019 ESD 388

                                                                        )           Issued: March 25, 2019

            Protestor.                                           )           OES Case No. P-035-081715-FW           

____________________________________)                      

In Gonzales, 2016 ESD 358 (December 30, 2016), we found that Local Union 439 member Kenny Gonzales was removed from an appointed steward position in violation of Article VII, Section 12(a) because he exercised the right protected by the Rules to stand for delegate.  We found that the reasons the local union advanced for removing him had no basis in fact and that, instead, a principal reason for the removal was Gonzales’s delegate candidacy.  We ordered that Gonzales be restored to the steward position and granted the same rights and benefits of such status as he would have enjoyed had he not been removed. 

Election Appeals Master Roberts affirmed the decision in all respects.  Gonzales, 2017 EAM 38 (January 24, 2017).  Thereafter, Local Union 439 complied with the decision by restoring Gonzales to a steward position, posting a notice to that effect, informing the employer of Gonzales’s status as a steward, and resuming the payment of Gonzales’s monthly dues at local union expense, as is the policy for all stewards in that local union. 

On January 28, 2019, two years after being reinstated, Gonzales wrote the Election Appeals Master to complain that Local Union 439 business agent Geoff Donnelley was not complying with the remedy ordered by the Election Supervisor and affirmed by the Election Appeals Master.  Gonzales wrote:

My Business representative Geoff Donnelley has continued to not communicate or acknowledge that I’m a steward.  I turned in multiple grievances in 2018 and there has been no communication from my Business Representative nor do I have a disposition from said grievances.  On January 23^rd, 2019 I approached Mr. Donnelley and asked him about my grievances and he said that they hadn’t been settled because I wrote that I wanted to be there when they were heard. I responded with a yes, I do but there has been no communication between us on when our pre-panel was going to take place. I then explained to him that I am a steward and I have a ruling from a judge that says I am. Geoff responded by saying that he doesn’t consider me a steward, to which I responded that maybe I need to contact the judge and he said yeah go ahead.

Judge Roberts remanded the matter to the Election Supervisor to determine the compliance issue Gonzales raised.

            Following his complaint to the Election Appeals Master, Gonzales hand-delivered a single-page letter to business agent Donnelley at the local union on January 31, 2019.  The letter inquired into fifteen separate grievances Gonzales had filed.  Gonzales further stated in the letter that Donnelly had failed to communicate with Gonzales concerning the grievances Gonzales had filed.  Specifically, Gonzales complained he “was never told that you received my grievances, the date when my grievances were scheduled to be heard, an agreement on settlement, and the overall disposition of the aforementioned grievances.”  Gonzales concluded the letter with a request that Donnelley reply with the disposition of the grievances and an explanation for his failure to communicate.  Gonzales further requested that he be given suitable notice of future meetings with the employer on grievances he filed so that he could attend.

            Donnelley replied to Gonzales’s letter on February 8, 2019 with a 2-page letter that included 19 pages of attachments.  Much of the communication provided dispositions of some of the grievances that were the subject of Gonzales’s inquiry.  In addition, Donnelley’s letter took Gonzales to task for what Donnelley deemed Gonzales’s unavailability to attend a series of grievances meetings.  Donnelley included as attachments the lists of pre-panel dates for 2017 and local review dates for 2018, both of which had been emailed to the three stewards involved, Gonzales included.  The email listing the 2017 pre-panel dates was sent February 7, 2017 and listed monthly meetings for the 11 months then remaining that year.  The email concerning 2018 local review dates was sent May 7, 2018 and listed 7 dates over the 8 months then remaining at that point in 2018.  In his February 8, 2019 letter replying to Gonzales, Donnelley alleged without providing specifics that “[i]n most cases when invited, you have declined the invitation to attend” pre-panel or local review meetings.  Donnelley’s letter became specific with respect to two dates, December 26, 2018 and January 21, 2019.  On the former, Donnelley stated that the meeting was held, that Gonzales did not attend, and that the grievances he had filed were simply put over to the next month’s agenda.  With respect to the latter meeting held in January 2019, Donnelley complained that Gonzales was off work on workers’ compensation at the time that meeting was held, a fact Donnelley said he first learned on attending the meeting.

            Gonzales replied to Donnelley’s letter on March 14, 2019, refuting each point Donnelley had made in his February 8, 2019 letter.  We will discuss Gonzales’s reply momentarily.

            In the meantime, by letter dated February 13, 2019, local union principal officer Ken Guertin wrote Gonzales advising that “[y]ou are hereby removed as a UPS Shop Steward for failing to perform your duties in the best interest of the membership.”  Guertin’s letter did not provide any specific reason for the dismissal.  Guertin told our representative that he had investigated the matter and determined that Gonzales should be removed.  Guertin stated that his investigation consisted only of speaking with Donnelley and other business agents; he had not communicated with Gonzales.

            Our representative asked Guertin about Donnelley’s claim that Gonzales had failed to attend the December 26, 2018 grievance meeting.  Donnelley’s email of meeting dates – sent May 7, 2018 and apparently never corrected – stated the December meeting would occur on the 27^th, not the 26^th.  Gonzales told our representative he had no knowledge a meeting would occur on December 26.  He was scheduled to work that day and was en route to work when he received a text message from the UPS Center Manager directing him not to report that day; the manager did not mention that a grievance meeting would be held that day, and Donnelley had given no notice of the change of dates for the meeting.  Accordingly, Gonzales followed the manager’s directive and did not report to the center that day.

            As noted above, Gonzales submitted a reply dated March 14, 2019 to Donnelley’s February 8 letter.  Gonzales’s reply listed the meetings to which he was invited and stated he had attended all, with one exception (the exception was a meeting held June 26, 2018; Gonzales stated he was invited to attend the meeting on June 25 but had to decline because of other appointments).  The reply also listed the many consecutive months – as many as six in a row – where he was not asked to attend a grievance meeting despite having filed grievances that were scheduled to be considered at such meetings.

            In our original decision, we found that Guertin had removed Gonzales from his steward position in retaliation for protected activity.  We supported our conclusion on two bases, first that Guertin admitted such retaliation and, second, that Guertin’s claims that Gonzales had failed to perform his duties properly were not factual.  Here, two years on, Guertin denies any retaliatory motive for removing Gonzales.  However, the investigation he conducted into Gonzales’s performance as steward did not include any evidence from Gonzales – a point Guertin concedes – and evidence Gonzales has supplied our representative and Donnelley raises substantial question as to any factual basis for a claim that he has not performed his duties as steward properly.

            As a matter of compliance with our original decision, Guertin has agreed to reinvestigate whether Gonzales should properly be removed from the steward position.  Such reinvestigation must include evidence obtained from Gonzales concerning his performance in that role.  The reinvestigation must specifically identify the meetings to which Gonzales was invited, whether he accepted the invitation and attended or declined the invitation (and if so the reason(s) therefor).  Further, the reinvestigation must address the December 26, 2018 meeting originally scheduled for December 27 and whether Gonzales and any other steward were informed of the rescheduling.  In addition, the reinvestigation must consider when Donnelley learned or should have learned that Gonzales was on workers’ compensation in the context of the January 21, 2019 grievance meeting and whether Gonzales could have attended the meeting despite such injury status, as Gonzales claimed a fellow steward did during Fall 2018.  Finally, the reinvestigation must consider whether Donnelley properly communicated the status and disposition of grievances Gonzales had filed to Gonzales during the period following Gonzales’s reinstatement as steward.

            We direct Guertin to complete the reinvestigation and provide a report of his conclusion as to whether Gonzales should be removed as steward to Gonzales, Donnelley, and us by April 5, 2019.

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, 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