IN RE: RICHARD BERG and MICHAEL CORRIGAN,
Protest Decision 2001 EAD 267
Issued: March 26, 2001
OEA Case Nos. PR012413MW and PR012612MW
See also Election Appeals Master decision 01 EAM 61 (KC)
Richard Berg and Michael Corrigan, members of Local Union 743, filed pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). Berg alleges University of Chicago Hospitals ("UCH") impermissibly interfered with and retaliated against him for exercising his right to campaign on employer property. Corrigan alleges that Berg violated the Rules by campaigning on employer-paid time.
Election Administrator representative Dennis Sarsany investigated the protest.
Findings of Fact and Analysis
On January 22, 2001, an employer representative saw Berg distribute campaign literature in a basement hall where second shift employees congregate before clocking in. Berg, a first shift employee, was nearing the end of his shift but was on employer-paid time. The employer representative was instructed to notify the manager of Berg's department if Berg was seen distributing flyers. She did so, and the manager told Berg by telephone that his actions were detrimental to the hospital. The next day, the manager suspended Berg "pending termination." The penalty was later converted to a three-day disciplinary layoff. Berg did not grieve the suspension but did file this protest.
Berg argues that the employer violated the Rules because its no-solicitation policy infringes members' pre-existing rights to campaign on employer property and, even if valid, was enforced in a discriminatory manner. Further, he contends the disciplinary penalty was disproportionate to the offense and therefore was retaliatory. Finally, he argues his campaigning was protected because it was incidental to work.
The Rules protect pre-existing rights to campaign on employer property, so long as the campaigning takes place during non-work time. See Article VII, Section 11(d). In the absence of such pre-existing rights, however, campaigning incidental to work time is merely unprotected activity, that is, an employee does not violate the Rules when s/he does so, see Article VII, Section 11(a), but s/he has no right to be free from non-discriminatory employer restrictions against such incidental work time campaigning.
Here, the employer has a broad and longstanding policy prohibiting "solicitation and distribution of literature in any manner which disrupts care, disturbs patients, employees and visitors, or create[s] an undue litter problem." The policy flatly bars solicitation "for any purpose during work time" of the solicitor or the employees to whom the solicitation is directed. Work time does not, however, "include an employee's authorized lunch or break periods."
Berg claims he gave literature only to employees who were awaiting the start of their shift, and that he, although on the clock, was on break in a non-work area. This claim does not withstand factual scrutiny. The employer reports that Berg admitted during the disciplinary process that he distributed flyers to employees who were on the clock. Further, Berg was not scheduled for a break during the last half hour of his shift. Despite the fact that little work customarily was accomplished so late in his shift, Berg nonetheless had tasks remaining and was expected to be available for additional work. Accordingly, he was not on break. Moreover, he was not in a non-work area such as an employee lounge or locker room. In sum, Berg's conduct violated the express terms of the employer's policy. He was thus unprotected from enforcement of the employer's rule even if his activity was incidental to work.
With respect to Berg's claim of discriminatory and retaliatory enforcement, the employer adhered to progressive discipline. Berg was reprimanded less than a year ago for violating the solicitation policy. In that instance, he posted notices in elevators used by employees, patients and visitors accusing the employer and the local union of colluding in contract negotiations. This activity brought heightened scrutiny to Berg's solicitation activities and a greater penalty for repeat violation. We find no evidence of discriminatory enforcement of the employer's rule.
For the foregoing reasons, we DENY Berg's protest.
We likewise DENY Corrigan's protest against Berg because we find Berg's campaigning to be incidental to his work. Moreover, even if this were not the case, any violation of Article VII, Section 11(a) was remedied by the employer's disciplinary action. Under circumstances such as presented here -- an alleged campaign violation of brief duration and limited impact that is remedied promptly before a protest is filed -- we have previously found no violation requiring a remedy. See Stephenson, 2001 EAD 139 (February 6, 2001), and Stroud, 2001 EAD 217 (March 6, 2001).
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 Administrator 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
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street NW, Tenth Floor, Washington, DC 20005 (fax: 202-454-1501), all within the time prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2001 EAD 267
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Richard Berg
1336 W. Argyle
Chicago, IL 60640
Michael Corrigan
3440 Elmwood Avenue
Berwyn, IL 60402
IBT Local 743
300 S. Ashland Avenue
Chicago, IL 60607
Julie Hamos
203 North Wabash
Suite 1800
Chicago, IL 60601
University of Chicago Hospitals
Attn: Andrew Wissel
5841 S. Maryland Avenue
Chicago, IL 60637
Dennis M. Sarsany
1829 Eddy Street
Chicago, IL 60657