OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: JAMES BECK, ) Protest Decision 2011 ESD 261
) Issued: May 22, 2011
Protestor. ) OES Case Nos. P-245-040411-ME
____________________________________) & P-253-041111-ME
James Beck, member of Local Union 100, filed a pre-election protest pursuant to Article XIII, Section 2 of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election (“Rules”). The protest, filed April 4, alleged that Sam Bucalo, delegate candidate on the Teamsters First Choice slate, and the other members of his slate received an impermissible employer campaign contribution in the form wages and pension benefits as a result of his employment with UPS.
Beck filed a second pre-election protest[1] on April 8 which made substantially identical allegations against Bucalo and his slate concerning Bucalo’s alleged impermissible receipt of employer campaign contribution in the form of wages and pension benefits as a result of his employment with UPS.[2]
Election Supervisor representative Denise Ventura investigated this protest.
Findings of Fact and Analysis
Local Union 100 is entitled to five delegates and two alternate delegates to the IBT convention. At the nominations meeting held February 1, 2011, sixteen members were nominated for delegate and six for alternate delegate. Slate declarations comprising three full slates were subsequently filed, one for the UPSet4Fr8 slate, a second for the Teamsters First Choice slate, and the final for the Solidarity slate. One candidate for delegate ran as an independent.
The Teamsters First Choice slate was comprised of incumbent local union officers and business agents, including secretary-treasurer Sam Bucalo. Bucalo assumed that office effective January 1, 2011. Prior to his election, Bucalo was employed on a full-time basis by UPS. After assuming union office, he sought to reduce the local union’s expenses by maintaining his employment with UPS and taking union leave as needed under Article 16 of the UPS contract in order to perform his union responsibilities. The financial consequences of this arrangement would be that UPS would remain responsible for the wages Bucalo earned while performing his UPS job as well as all of his health and pension benefits. Under this arrangement, the local union would be responsible for paying only the wages Bucalo did not earn at UPS while on union leave performing his union responsibilities. The added benefit to the union, as Bucalo saw it, was that he would have frequent contact with his UPS co-workers and have access to parts of the facility that UPS routinely denied to union officers who were not active employees.
In pursuit of this strategy, Bucalo worked for UPS on several non-consecutive days in January 2011.[3] For the remaining workdays in January, Local Union 100 submitted the requests required by the UPS contract to permit Bucalo to be excused from work to perform union business. For example, the local union submitted a request dated January 14, 2011 asking that Bucalo be excused from work for union business on January 18 through 22. UPS replied by letter dated January 17 granting the requested leave. However, the letter also cautioned that, in UPS’ view, the contract “does not authorize or anticipate that such leaves can be taken on a recurring basis.” The letter concluded: “Please be advised that if it is Mr. Bucalo’s intent to make additional requests for leave in the future, such recurrent requests may not be approved.” The local union submitted a further request for union leave for Bucalo dated January 21, stating that he needed leave to conduct union business on January 24 through 27, which business included representing members against UPS in local hearings and before the NLRB and OSHA, among other agencies. UPS apparently did not grant this leave request. By letter dated January 27 and received by Bucalo January 28, it discharged him for failure to report for work for three consecutive working days. Bucalo grieved the discharge on January 28; he also filed several unfair labor practice charges against UPS with the NLRB regional office in Cincinnati.[4]
One of the matters Bucalo assumed responsibility for upon his election as local union secretary-treasurer was a grievance filed on behalf of protestor Beck, a package car driver for UPS. The grievance alleged that UPS had systematically shorted Beck’s pay by 10 minutes each day because it claimed that he took too long for lunch.[5] According to Bucalo, the grievance had been delayed for many months at the state panel before Bucalo took office, and Beck had filed several unfair labor practice charges against the union for the delays that Bucalo said were caused by UPS. Bucalo processed the grievance to a state panel hearing on February 7; the panel deadlocked and the matter was appealed to the joint area committee panel in Clearwater, Florida scheduled for February 22.
Bucalo attended the joint committee meeting in Florida to present cases on behalf of his members that were on appeal there. Beck planned to attend as well, but by the time he investigated airfare for the trip, the available flights were too expensive. According to Bucalo, Beck told him he could not afford the trip. At this, Bucalo canceled his flight, and rented a car at his own expense to drive to Florida from Cincinnati so that Beck could make the trip. Once in Florida, Bucalo permitted Beck to lodge in his hotel room so he would have a place to stay. On the 12-hour drive each way to Florida, Bucalo said he and Beck discussed many things, including Beck’s grievance and Bucalo’s effort to use the union leave provision of the UPS contract to save save the local union the cost of his health and pension benefits. Bucalo said he also told Beck that UPS had discharged him but that he expected to win reinstatement either through the grievance procedure or the NLRB. Bucalo subsequently was reinstated by UPS effective March 14, 2011.[6] When he reported for work that day, he submitted his retirement papers and retired from UPS.
Beck filed the first of his two protests on April 4[7], claiming that he had just learned when he visited the NLRB regional office on or about that date, that Bucalo was employed by UPS while also holding office in the local union. Beck claimed he made this discovery by leafing through the public filing book in the lobby of that office, where he found several unfair labor practice charges Bucalo had filed against UPS. Those charges, which Beck attached to both protests, alleged the following, among other things:
- That UPS refused to grant Bucalo union leave from his employment with UPS so that he could represent members in grievance and administrative proceedings;
- That UPS threatened Bucalo for actions Bucalo took in representing members in grievance and administrative proceedings;
- That UPS paid Bucalo at an improper rate for work he had performed for UPS;
- That UPS failed to pay Bucalo for vacation time he had earned while employed by UPS and for which he had submitted the appropriate request; and
- That UPS terminated Bucalo’s employment as a result of Bucalo’s protected, concerted activity on behalf of members he represented in grievance and administrative proceedings.
Each charge alleged that UPS took the action complained of to retaliate against Bucalo in his employment for protected, concerted activity on behalf of members.
From these charges, Beck concluded correctly that Bucalo was employed by UPS, a fact not in dispute in this matter. What is disputed is the date Beck claimed to have learned of Bucalo’s UPS employment, for Beck’s protests are based on that employment. Bucalo contends that he and Beck discussed Bucalo’s continued UPS employment, his reasons for it, his termination by UPS, and his effort to reverse that termination at length during the Florida journey; Beck claims to the contrary that he learned of the employment for the first time upon his visit to the NLRB in early April. If we credit Bucalo on this point, Beck’s protests are untimely filed.
Also disputed is the impact of Bucalo’s UPS employment, and his subsequent reinstatement by and retirement from UPS. On this issue, Beck’s protests contend that Bucalo’s receipt of wages for work performed for UPS and pension benefits earned as a result of that employment violated Article XI because those wages and pension benefits constituted impermissible employer support for his delegate candidacy. Beck further contended that Bucalo’s receipt of salary from Local Union 100 constituted impermissible union support for his candidacy as well. Beck also argued that the payments violated Section 401(g) of the LMRDA (prohibiting use of union or employer assistance in campaigning), which is incorporated in the Rules by reference at Article XII. He alleged that the payments were impermissible under Section 302 of the LMRA. Finally, he claimed that they were prohibited by Article IV, Section 5 of the IBT constitution as well as Local Union 100’s bylaws.
On the facts presented here, we make these findings. First, we credit Bucalo that he and Beck discussed, during the mid-February Florida trip, Bucalo’s effort to remain employed at UPS even though a union official, for the twin purposes of reducing the expense of his employment to the local union and to give him greater contact with members employed at UPS. Given that Bucalo’s employment with UPS was the basis for Beck’s protests, Beck was required by Article XIII, Section 2(b) to file them within two working days of the date of the discussion. Instead, some six weeks passed before the protests were filed. As such, they were filed untimely.
Turning to the merits, we reject Beck’s contention that a candidate, whether an employee of the union or of an employer under the union’s jurisdiction, accepts an impermissible campaign contribution in the form of wages or pension benefits in violation of prohibitions on receipt of such contributions set forth in the Rules, the LMRDA, the IBT constitution or other authority. Payment of wages or pension benefits are compensation for labor provided to the employer by the employee; they do not constitute campaign contributions. Were Beck’s theory correct that a candidate receives an impermissible campaign contribution from an employer by accepting wages or benefits he or she has earned through labor, all candidates actively employed at the craft would violate the Rules merely by cashing their paychecks.
Accordingly, we DENY these protests as untimely filed and because they lack merit.
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, NY 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.
[1] This protest was filed after the tally of ballots, but it alleged pre-election conduct. Accordingly, we deem it a pre-election protest.
[2] The second protest also alleged that the slate declaration forms submitted in Local Union 100’s delegates election were technically deficient and therefore invalid; the protest sought a rerun of that election, with all candidates appearing on the ballot without slate affiliation. We denied this aspect of the second protest in Beck, 2011 ESD 256 (May 13, 2011). Beck appealed our decision. The appeal is pending.
[3] Our investigation found no evidence that Bucalo received pay from UPS and Local Union 100 for the same dates, and Bucalo denied doing so.
[4] Bucalo alleged in unfair labor practice charges filed with the NLRB that UPS threatened him at a discharge hearing on January 24 that he “would pay” if he filed charges with the NLRB, OSHA or the EEOC. Bucalo filed the charges while on the union leave requested on his behalf that week. When he returned from that leave, he was discharged. Bucalo filed an unfair labor practice against UPS for his discharge, contending it was retaliation for protected, concerted activity.
[5] According to Bucalo, Beck’s practice was to drive his truck to a rest stop to have lunch. UPS contended that the transit time to and from the rest stop was part of his lunch break. Beck, citing DOT regulations, argued that he could not permissibly be on break while he was driving his truck; therefore, the transit time to the rest stop was working time. Bucalo believed Beck’s grievance was meritorious.
[6] The reinstatement was without back pay, although Bucalo retained the right to pursue back pay.
[7] The second protest was filed April 8 and, as noted, made substantially the same allegation.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2011 ESD 261DISTRIBUTION 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 Hall 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
James Beck
3548 Turkeyfoot Road
Erlanger, KY 41018
beckfamily4@insightbb.com
Sam Bucalo, Secretary-Treasurer
Teamsters Local Union 100
2100 Oak Road
Cincinnati, OH 45241
sarahm@teamsterslocal100.com
Butch Lewis, President
Teamsters Local Union 100
2100 Oak Road
Cincinnati, OH 45241
sarahm@teamsterslocal100.com
Denise Ventura
949 Old Hickory Road
Pittsburgh, PA 15243
dmventura@verizon.net
Maria Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com