IN RE: JOEL JOYCE, Protestor.
Protest Decision 2010 ESD 111
Issued: February 14, 2011
OES Case No. P-059-120810-AT
Joel Joyce, member of Local Union 391, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that candidates and supporters of the Team 391 slate campaigned on work time in work areas of B/E Aerospace, in violation of the Rules.
Election Supervisor representative J. Griffin Morgan investigated this protest.
Findings of Fact
Since 1990, Local Union 391 has had contested officer and delegate elections. Past elections have been contests between a slate of executive board members and a slate or individual members opposed to the incumbent slate. Recently, the executive board has divided, and the president and the secretary-treasurer of the local union now each head their own slates in the election for delegates to the 28th International Convention of the IBT. Local union president Claude Gray leads the Gray/Bishop Experience Team; secretary-treasurer Vernon Gammon, the Team 391 slate. In addition to these slates, non-incumbent members also seek election.[1]
Protestor Joyce is a Gray/Bishop supporter. His protest made 4 allegations. He asserted that Local Union 391 business agent Wayne Gibbs, a delegate candidate on the Team 391 slate, campaigned on time paid by the union at B/E Aerospace, a unit for which he serves as business agent and where Joyce is employed. Joyce further alleged that retiree Judy Cockman visited B/E Aerospace, her former employer, to campaign for Wayne Gibbs and Team 391 and did so during employees' work time. Joyce also alleged that Cockman campaigned with the knowledge and consent of the employer's human resources manager. Finally, Joyce claimed that B/E Aerospace shop steward Karen Matthews distributed campaign literature in work areas during work hours.
This is the second protest claiming Rules violations at B/E Aerospace. In Gibbs, 2010 ESD 54 (December 9, 2010), we denied a protest alleging campaigning in work areas on work time. Most of the incidents of campaigning described in that case occurred while employees were on break. In the single instance where we found that a member received campaign material while working, we determined that the brief exchange did not cause the employee to fail to perform or deviate from work and therefore was incidental campaign activity that did not violate the Rules.
In the present case, protestor Joyce stated that business agent Wayne Gibbs escorted retired member Judy Cockman around the plant on December 6, 2010 for the purpose of permitting Cockman to campaign. Joyce further alleged that, two weeks earlier on November 22, 2010, shop steward Karen Matthews, a B/V Aerospace employee who is also a candidate for delegate, campaigned on employer-paid time in work areas at the plant.
1. Investigation of the December 6 allegations concerning Gibbs and Cockman.
At about 10:15 a.m. on December 6, protestor Joyce learned that Wayne Gibbs and Judy Cockman were at the plant speaking with employees. After 11:00 a.m., Joyce observed Gibbs and Cockman speaking to employees during work time at the employees' work stations. Joyce saw Gibbs speak with Susie Burton and Donna Steele and Cockman speak with Ed Eudy. Joyce stated that Gibbs and Cockman were in the same part of the plant but engaged in separate conversations with different people.
Cockman worked for B/E Aerospace for more than 30 years before retiring in 2005. She was a shop steward for 28 years and a trustee of the local union for six years. She was a candidate in two officers election and two delegates elections. Since her retirement, Cockman still attends union meetings as a guest and is active in the retiree club. She attended the 2008 Myrtle Beach shop steward conference as a guest of the local union; she staffed the hospitality room at that event.
Investigation showed that Cockman's December 6 visit to the plant was her fourth since retiring. She told our investigator she visited around the Christmas holidays in 2006, 2008 and 2009. She said that, as in past years, she coordinated her December 2010 visit with a day Gibbs planned to be at the plant so that he could escort her past security. Gibbs met Cockman on December 6 as they arranged, and he used his card to let her inside the gate. They then went to human resources. Cockman greeted HR manager Ben Nichols, who welcomed her and gave her a pair of safety glasses to wear. Nichols confirmed to our investigator that retirees are welcome to visit the facility anytime.
Cockman stated that she then went out on the plant floor to speak with former co-workers and wish them a happy holiday. She said it was not her intention to campaign during her visit. However, she said Ed Eudy asked her which slate she was supporting at Local Union 391. She said she told him she was supporting Team 391.
Eudy is a local union member employed at B/E Aerospace. Eudy said that when he saw Cockman he yelled a greeting out to her. He said she came over and spoke with him and Daryl Rogers before their lunch break. Eudy said that he and Rogers were dry running a program on a machine and just needed to watch it. When they first started talking, it was a general "how you doing" conversation. Eudy said that Cockman then initiated a conversation about "supporting our union members, Wayne Gibbs and Vernon 'someone,'[2] with our vote." Eudy said that Cockman told him that Jack Cipriani and Claude Gray had a "gentlemen's agreement" that Claude would be president while Jack took care of some health issues and that Jack would then return as president. Cockman told Eudy that Gray was not honoring the agreement. She also said that Gray and Bishop both lived in Raleigh and union members' dues would be paying for them to travel back and forth to Raleigh and for their union cars. Eudy also said that Cockman told him and Rogers that protestor Joyce hit a woman at the beach and got locked up. Eudy said that he and Rogers just kept looking at each other during this conversation and then told Cockman that they were going to lunch. Eudy said Gibbs was in another area and was not part of the conversation.
Eudy confirmed that Cockman has visited the plant on other occasions. Eudy has seen other retirees walk through the plant and say hello to former co-workers.
When told what Eudy reported her saying, Cockman denied the allegation. Cockman denied speaking with Eudy about an agreement between Jack Cipriani and Claude Gray, about Gary and Bishop driving from Raleigh, or about Joyce being arrested. She stated that Eudy was in the same area as Susie Burton and he may have overheard a conversation she had with Burton that had touched on some of the matters Eudy described.
Cockman stated that she spoke with Susie Burton before speaking with Eudy. She said Burton asked her what happened to Joyce at the 2008 Myrtle Beach shop steward conference. She said that she told Burton that Joyce hit a woman and went to jail and that Gibbs bailed him out.
Susie Burton is a B/E Aerospace employee and member of Local Union 391. Burton has worked for B/E Aerospace for 31 years. On December 6, Burton said she chatted with Cockman during her visit to the plant. Burton said the conversation took place when she was walking to her lunch break. Burton stated that Cockman asked her how work was going. Burton said that she and Cockman talked about their health, as both have had some health problems.
At some point Wayne Gibbs and an employee named Willis joined the conversation. Burton said that she asked Cockman what was going on with the union and mentioned that Joyce had asked her to sign a campaign support paper that morning. Gibbs told her it was election time. Gibbs and Cockman told her that she could and should get the paper back. Burton said that Cockman also told her about Joyce being arrested in South Carolina. Burton said she did not ask Cockman about Joyce because she did not know anything about his arrest until Cockman brought it up on December 6.
Burton said that Cockman did not campaign for Wayne Gibbs. Burton stated that she likes Joyce as a shop steward and thinks that Gibbs has not been a fair business agent because "we got a bad contract last time." After speaking with Cockman and Gibbs, Burton said she asked Joyce for the campaign support paper back because she decided she did not want any part of the campaign or the election.
Becky Martin is a B/E Aerospace employee and member of the local union. She told our investigator that she and Cockman were friends from work. Cockman visited with her during her December 6 tour of the plant. Martin stated that they spoke about mutual friends and her mother. She characterized it as a "regular holiday visit." There was no discussion involving the union, local union politics or the delegates election. Wayne Gibbs walked by about the same time and Martin said hello to him. Gibbs did not participate in the conversation between Martin and Cockman. Martin stated she knew about Joyce being arrested because Joyce had told her about it. It was not discussed during her conversation with Cockman.
Cockman stated that after speaking with Burton, Eudy and Martin, she continued to visit with her former co-workers. When she was ready to leave, she checked out with Human Resources and Ben Nichols walked her out to the security gate and let her out.
Cockman states that she has not done any campaigning for Team 391. She has not passed out campaign material or gone to plant gates. She specifically denied that she had been asked by any member of Team 391 to campaign at B/E Aerospace on their behalf.
Protestor Joyce reported that shortly after seeing Cockman speaking with Eudy on December 6, Eudy told him that Cockman had said that Joyce was arrested at the 2008 shop stewards conference in Myrtle Beach, after hitting a woman and that she did not understand why Eudy was supporting a "wife beater." According to Joyce, Eudy told him "You know what is going on in the local, we need to support our people" and that Eudy should support Wayne Gibbs.
Joyce told our investigator that when Eudy told him what Cockman had said, he became very upset. He contacted local union president Claude Gray and HR manager Ben Nichols and told both that Cockman was in the plant campaigning and calling him a wife beater. Joyce requested that a meeting with Gibbs and Gray be held at the plant that day. At the time this request was made, Gibbs had left the plant and Gray was in a different city. Nonetheless, a meeting was held at 2:30 p.m. in Nichols' office at the plant. Attending were Joyce, Gray, Gibbs, shop steward Karen Matthews and Nichols. Joyce repeated what he said he was told Cockman had said about him. Joyce reported that Gibbs replied that Cockman was at the plant to wish people a Merry Christmas. When Joyce claimed that Gibbs had brought Cockman to the plant to campaign for Team 391, Gibbs responded that he did not have to listen to these lies and left the meeting. Matthews left with him.
Gibbs told our investigator that it is his practice to walk around the plant once a week if his schedule allows it. He tries to see both the first and second shifts. He said he left the plant early on December 6 because he had to meet a heating contractor at his house. When he left, Cockman was still visiting with members. He returned to the plant for the specially arranged 2:30 meeting.
After Gibbs and Matthews left the meeting, Nichols said the company will not get involved in local union politics. Nichols further stated that it is the company's policy to allow retirees to visit the plant to see their former co-workers, a policy he did not intend to change.
Gray told our investigation that Joyce was very upset when he called on December 6. Gray stated that Joyce was livid that Cockman had told members at the plant that he had been arrested at Myrtle Beach. Gray was out of town at the time of the phone call with Joyce but came to the plant and was present for the 2:30 meeting. Gray stated that the purpose of the meeting was to ask Gibbs why he had Cockman at the plant. At the meeting, Joyce stated that Gibbs brought Cockman to the plant to campaign. Gibbs denied the accusation and left the meeting. Gray said that the meeting was really between the union members and in hindsight should not have been held in Nichols' office.
Gray then went and spoke with Eudy. Eudy had just left the plant at the end of his shift, but returned when Joyce called and asked him to speak with Gray. Gray said that Eudy told him Cockman was telling people that Joyce had been arrested in Myrtle Beach. Gray could not recall more specific information about what Eudy told him. Gray could not recall if Eudy said Cockman had spoken to him directly about Joyce or if Eudy had heard a report of Cockman's statement from others.
HR manager Nichols confirmed to our investigator that Cockman came to the plant and went out on the floor to converse with her former co-workers. He assumed she was trading holiday wishes but had no firsthand knowledge of the content of her conversation. Nichols confirmed that he escorted Cockman out to the gate after she came back to his office at the end of her visit.
Nichols did hear from Joyce that Cockman was talking to employees about Joyce being arrested. He was present for the afternoon meeting in his office. He stated that he was not an active participant in the meeting. The conference table is in his office, which is where the union people sat. He was at his computer answering email. He viewed the event as a meeting for the union officials and his office was simply a place they could meet. He did tell them that he was not going to ban retirees from visiting the plant.
Nichols confirmed that Gibbs visits the plant and walks around to speak with employees several times a month. He also confirmed that Cockman has visited the plant on several occasions. He thought the most recent was February 2010.
Nichols stated that neither he nor B/E Aerospace wants any involvement in local union politics. It is his position to treat everyone the same.
2. Investigation of the November 24 allegation involving Karen Matthews.
Joyce's protest stated the following with respect to Karen Matthews' allegedly improper campaign activity:
On 11-24-2010 Karen Matthews came to building 2 where I … work and ask me if I had a few min. I said yes. Karen then ask me why I was backing Claude Grey after all the wrong things he has done. I responded by telling her 'cause he is my President and as far as I know he has done nothing to hurt the Local or the members at the Local. She responded by saying he hasn't been honest with the people and I ask her what he hasn't been honest about and she replied it will come out. I … responded by saying we don't have to worry about the Republicans in Washington hurting the Local because if her people on their ticket didn't get their head out of their asses and run the Local like it was running they was going to do it for them. She said she didn't come over here to be talked to like that, I said if you don't want to hear my view then don't ask me and she could just leave. Karen got to my work station about 8:45 and left at 9:22 a.m.
Matthews is a shop steward at Building 3 and a member of the Team 391 slate. She told our investigator that she has campaigned for the Team 391 slate and that she has asked members to sign the Team 391 pledge of support. She stated that she did most of her campaigning during lunch and break times, including on November 22.
Matthews said that she missed speaking with Della Kellam on November 22. On November 23, during her lunch hour (11:30-12:00), Matthews went upstairs in Building 3 where the break room is located. She saw Kellam at her work table and it appeared to her that Kellam was not working. Matthews said that there are times when employees are at their work stations but caught-up in their work and waiting for additional work. She said she stopped and spoke with Kellam for about two minutes and gave her a pledge of support card.
Matthews said that she went to Building 2 on her morning break (8:45-9:00) on November 24 to speak with Joel Joyce. She confirmed his written statement that she spoke to him about why he was supporting the Gray/Bishop slate rather than the Team 391 slate. She recalled that he said he would support the president of the local union. She did not recall the comments about Republicans or the other things he said. She said the conversation lasted 10 minutes or less, not the 37 minutes alleged by Joyce.
Della Kellam is a B/E Aerospace employee and local union member. She confirmed to our investigator that she did not receive the campaign literature on the day Matthews gave it to most members. The next day, Kellam stated that Matthews told her "I have a paper for you." Kellam responded, "Bring it to me." Later that day, Matthews brought the paper to Kellam's work station and gave it to her. Kellam asked Matthews about the people listed as members of Team 391, saying she did not recognize their names. Matthews answered her question. According to Kellam, the conversation lasted about five minutes during which time she stopped working.
Dennis Willard, another B/E Aerospace employee and local union member, told our investigator he had not seen Matthews pass out literature but heard from Joyce that she had. Willard did see Matthews talking with Joyce during work hours one morning. He did not hear the content of the conversation, but saw Matthews walk away looking upset. Joyce told him the conversation was about the current election campaign. Willard estimated that the conversation lasted about 5-10 minutes. Willard stated that the break times for Joyce, Humphrey and Willard were 8:00 a.m., 10:00 a.m. and 12:00 a.m.
David Humphrey, another employee and union member, said he saw Matthews go to Joyce's workplace and speak with him during work time. He stated that the conversation lasted 5-10 minutes, although he could not hear it. Joyce told Willard that the conversation with Matthews was about which team to support in the delegates election. Humphrey said that Joyce had passed out yellow cards in support of the Gray/ Bishop team. Gibbs and Matthews passed out blue cards in support of Team 391.
Analysis
Article VII, Section 12(b) prohibits campaigning by union employees on time paid for the by union, but states that campaigning "incidental to regular Union business is not … violative of this section.
Section 12(a) of the same article prohibits a candidate or member from campaigning on work time; again, campaigning incidental to work does not violate the provision.
Employers are prohibited by Article IX, Section 1(b)(2) from contributing anything of value to a candidate's campaign. This provision prohibits campaign activity on employer-paid time.
We apply these provisions first to the allegations that Wayne Gibbs and retiree Judy Cockman campaigned in work areas of B/E Aerospace on December 6, 2010. For the following reasons, we DENY this aspect of the protest. The evidence Gibbs presented, corroborated by HR manager Nichols and employees who work at the plant, was that Gibbs walked the plant on a weekly basis, fielding members' questions and addressing their concerns about workplace issues. The evidence established that Gibbs spoke about the local union delegates election to at least one member on December 6, in response to the member's question. We find Gibbs' answer to the question to be incidental campaign activity not prohibited by the Rules. We discussed the "incidental" exception in Glessner & Weeks, 2011 ESD 96 (February 1, 2011), viz.
The exception to the prohibition on campaigning during work hours for "[c]ampaigning incidental to work" recognizes that some activity that literally fits the definition of "campaign activity" inevitably occurs in members' everyday interactions on the job. Rosas, 2001 EAD 200 (February 27, 2001) ("The Rules recognize that as employees engage in normal personal interaction while they work, campaigning should not be excluded from what they may talk about."). In assessing whether campaign activity is incidental, we look to whether the activity interfered with employees performing their regular work or caused employees to deviate from prescribed duties. Pinder, 2006 ESD 133 (March 7, 2006) (campaigning found to be incidental where UPS driver distributed flyers to 2 others while loading truck and encouraged them to vote; conduct did not interfere with duties, and all drivers left terminal on time.) We also consider the duration of the campaigning incident; brief or transient matters are more likely to be held incidental to work. Pinder (less than 5 minutes); Thompson, 2001 ESD 332 (April 30, 2001), aff'd, 01 EAM 73 (May 24, 2001) (one-on-one campaign exchange that took place while both employees worked together to set a trailer hitch held incidental); Cooper, 2005 ESD 8 (September 2, 2005) (exchange lasting 10 seconds found to be incidental); and Gibbs, 2010 ESD 54 (December 9, 2010) (asking for and receiving a campaign postcard held incidental campaigning where exchange took a few seconds).
Wayne Gibbs' comment to Susie Burton was brief, made when Burton was on her way to lunch. The comment came in the context of Gibbs' weekly tour of the shop floor and was in response to Burton's specific question.
We find no evidence that Gibbs brought retiree Cockman to the plant to campaign, as the protestor alleged, nor that Cockman came to the plant for that purpose. Instead, we find that Cockman made what we conclude was an annual visit to renew acquaintances with her former co-workers, during which she and they talked about several topics of mutual interest, including health of family members and local union politics. As a retiree, she was permitted access for such a visit by the employer, and there is no evidence that the employer had knowledge or even interest in what Cockman spoke or intended to speak about with current employees. Nor is there evidence that Cockman's conversations interfered with work or caused employees to deviate from prescribed duties. Accordingly, we find that her statements about local union politics did not violate the Rules.
We likewise find that the employer's policy permitting retirees to visit the shop floor, during which Cockman made statements supporting Team 391, did not constitute an impermissible contribution to Team 391. Given that the incidental exception permits employees to discuss a broad range of topics, including union politics, during work time so long as such discussion does not interfere with work, we find that the incidental exception extends to Cockman's visit, because it did not interfere with the work to be performed by employees.
Finally, with respect to Matthews' conduct on November 24, we find that the exchange with Joyce lasted 5 to 10 minutes, as stated by Matthews, Willard and Humphrey, and not the 47 minutes alleged by Joyce. We further find that Matthews was on break during the exchange. Finally, although the exchange occurred on November 24, Joyce did not file his protest about it until December 8, 14 days later. Accordingly, the protest of Matthews' conduct was untimely filed. Article XIII, Section 2(b).
For these reasons, we DENY this 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:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2011 ESD 111
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Joel Joyce
906 Watson Street
Reidsville, NC 27320
nemesis0012@aol.com
Wayne Gibbs
P.O. Box 303
Colfax, NC 27235
wgibbs@teamsterslocal391.org
Karen Matthews
240 Shady Brook Lane
Louisville, NC 22023
Claude Gray, President
Teamsters Local Union 391
P.O. Box 35405
Greensboro, NC 27425
cgray65663@aol.com
Vernon Gammon, Secretary-Treasurer
Teamsters Local Union 391
3910 Teamsters Place
Colfax, NC 27235
vgammon@teamsterslocal391.org
Mike Webb
1200 Oak Grove Church Road
Wake Forest, NC 27587
d2h2w2@yahoo.com
J. Griffin Morgan
Elliot Pishko Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.com
Maria Ho
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
mho@ibtvote.org
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey J. Ellison
214 S. Main Street, Suite. 210
Ann Arbor, MI 48104
ellisonesq@aol.com