IN RE: DAN SCOTT,
Protest Decision 2001 EAD 470
Issued: September 26, 2001
OEA Case No. PR071912WE
Dan Scott, a member and trustee of Local 174 who supports Tom Leedham's candidacy for General President of the IBT and attended the IBT Convention as an elected delegate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). Scott alleges that UPS, his employer, has subjected him to discriminatory discipline and surveillance in response to his active support for Leedham.
Election Administrator representative Jason Weidenfeld investigated the protest.
Findings of Fact
Scott has been a full-time package car driver at UPS' Redmond facility since September 5, 1990. He was not active in union politics or as a union representative until he became a UPS steward in 1997. In late 1999 Scott was appointed to the Local 174 executive board and was re-elected in 2000 as trustee.
Earlier this year, Scott ran for delegate to the IBT Convention. Scott was nominated on February 11, 2001 (while on injury leave through March 6, 2001). Ballots for delegate were distributed in mid-March, and votes were counted on April 9. Scott campaigned at his worksite, among other places, and wore campaign t-shirts on occasions when he performed pre-load work. Local 174 members elected Scott as a delegate to the Convention, which was held in Las Vegas from June 25-29, 2001. Scott attended the Convention, although he alleges that he had a difficult time receiving approval to do so. During the week after his return from the Convention, UPS Workers Compensation Case Manager Milt Crafton engaged in an observation[1] of Scott, an activity focused primarily on "repeat offenders" with poor injury records, according to Scott. Based on his observation, Crafton alleged that Scott was not wearing a seat belt and, ultimately, Scott received a written warning for the alleged infraction. A short time later, a UPS manager performed a follow-up observation during which Scott followed safety procedures properly.
Recently, Scott alleges, UPS supervisor Dave Beyrouty instructed him to remove or reverse a Leedham t-shirt. A case arose from the alleged request, and Beyrouty denied asking Scott to remove or reverse his t-shirt. The case was resolved without determining whether Beyrouty made such a request. See Scott, 2001 EAD 445 (September 18, 2001). Scott claims that Beyrouty's actions provide additional evidence of discrimination against him for his support of Leedham.
OJS Rides. UPS gives package car drivers on-job-supervision rides (OJS rides) for various reasons, though there are three primary ones: safety, space-and-visibility, and methods. In addition, according to UPS District Labor Relations Manager Jim Bryant, UPS may perform an OJS ride to determine whether a driver is operating his or her route efficiently or to accompany a driver who has recently returned from an injury or an accident. Delivery problems can also lead to OJS rides, as can training on a new route.
Bryant said that many people have had as many rides as Scott in the past twelve months and has provided the records of two drivers in the Redmond facility that have received at least seven rides in the past twelve months. One driver has received eleven rides, and the other has received seven. Scott has received seven rides in the past twelve months as well. All of his rides occurred this year between the beginning of March and the end of May.
Scott believes that the large number of rides he has received this year are a result of his political activity in support of Leedham. On February 11, 2001, Scott accepted a nomination as a Local 174 delegate. Scott did not drive in the month of February because of an injury, his first since 1992. Upon returning to work, Scott received an OJS on March 6, 2001. He then received rides on April 19, 24, 25, and May 16, 17, and 31. Scott reviewed his personnel file and stated that the first two rides were identified as safety rides and the next five where identified as methods rides. UPS has provided evidence that another full time driver in the same operations as Scott received eleven supervisory rides during the past year, and three other drivers received seven, five, and four rides, respectively.
Bryant and UPS business manager Ken Derrick said that Scott's March ride was a safety follow-up ride prompted by Scott's ankle injury. They also said that the May rides resulted from the length of time it took Scott to deliver packages on his route. UPS claims that it had become concerned that Scott took approximately ten hours to complete a route that UPS figured should take approximately eight hours. UPS therefore administered OJS rides to determine the reasons for the difference. Derrick admitted that this discrepancy existed before he became Scott's manager in September 2000 but had not been looked into as deeply as he was looking into it. Derrick stated that he felt that there was a problem that needed to be addressed. After a supervisor, Pat Mathias, rode with Scott twice and did not find any material deficiencies in his performance, Derrick rode with Scott and also found that he performed the job sufficiently. Derrick stated that it was normal procedure for him to ride with a driver before implementation of a time allowance study of a route because such a study is quite costly. Derrick said that Scott never received discipline as a result of any OJS rides. Scott has not claimed otherwise.
UPS has also provided reasons for Scott's three April OJS rides. Specifically, the April 19 ride was a space and visibility ride, and the April 24 and 25 rides pertained to safe work methods and loading issues.
IBT Convention. Shortly after the last OJS ride, Dan Scott sought to attend the IBT Convention. Derrick initially told Scott that he would need to look at staffing requirements to determine whether Scott would be able to attend. He also told Scott that it would be very difficult for him to go and would put a "great burden" on operations. Scott alleges that when Derrick said that he would have to consider whether to give Scott time off to attend the Convention, three drivers within Scott's operation who were being laid off on a daily basis could make up for Scott's absence. Derrick responds that although drivers were being laid off when Scott presented the questions, Derrick knew that other drivers had already planned vacations beginning in late June, so the supply of drivers in the spring could not be relied upon in late June. Derrickstated that even though drivers from other operations would be available, he preferred not to go outside Scott's operation to obtain drivers who did not know the route. Ultimately, Scott attended the convention and Derrick trained a driver from an area outside of Scott's operation to drive during the week.
Observations of Scott. On Scott's third workday after returning from the Convention, UPS worker's compensation case manager Milt Crafton observed Scott performing his route. Crafton said that UPS wants to observe all drivers in the district where Scott works because there have been many injuries in the district in the past year, even though 70% to 90% of the drivers had received proper training. Yet no injuries occurred in the last two years when a supervisor sat with a driver on an OJS drive. Therefore, according to Crafton, UPS initiated a plan to determine how drivers acted when they were unaware that they were being watched. Derrick and other managers complied lists of drivers to be observed. Crafton understands that people who made the priority list ("repeaters") include:
Drivers with more than two injuries in the last two years;
Drivers with injuries occurring at the same time every year;
Drivers with recent injuries; and
Drivers with a significant amount of lost time due to injuries.
Each manager created a priority list, and Derrick's included Scott. In general, Crafton did not question the bases for putting drivers on the list. He said that 27 people made the list from Derrick's operation and that 13 had been observed since observations began around April of this year.
Crafton assumed that Scott made the list because of his recent injury earlier this year. As mentioned previously, Crafton understood that Scott's older injuries (from 1991 and 1992) would not be considered in determining whether he was a repeater. Crafton said that he planned to observe Scott in the last week of June, along with another driver who has an adjacent route but that Scott's absence because of the Convention caused him to defer until July 5. Contrary to Crafton's assumption regarding the basis for Scott's appearance on the priority list, Derrick said that Scott made the priority list of drivers needing an observation because he has more than two career injuries, notwithstanding that Scott has had only one injury in more than eight years. Derrick stated that twelve drivers in Scott's operations fell into the repeater category. Scott was placed on the priority list for an observation. Derrick said that observations were generally done on repeaters first and that the observer tries to cover a physical area that will allow him to observe multiple drivers in a day (even if one driver being observed is not a repeater).
Scott alleges that drivers with worse injury records than his did not make Derrick's list - Leroy Gilbert, Steve Poulter, and Mark Van der Hays. Crafton stated that Van der Hays had been observed on August 6 but that Gilbert and Poulter did not make the list. Derrick said that Gilbert and Poulter were both on his list.
Crafton's observation resulted in a written warning to Scott regarding his alleged failure to wear a seat belt. Crafton says he always recommends a warning letter when a driver fails to wear a seat belt and has recommended eleven such warning letters since beginning observations this spring. Scott has disputed the warning letter and argues that he was observed as a result of his support of Tom Leedham. Crafton denies knowing that Scott was a Leedham supporter until receiving news of this protest. Scott also notes that Crafton looked into the back of Scott's truck when there was no reason to do so; Crafton stated that his observation included looking at the cargo area in the back of the truck to make sure that there were no tripping or similar safety hazards.
Scott stated that Crafton said that he has seen Scott wearing his shoulder harness on longer routes but Scott noted that this was impossible because he wears only a lap belt. Crafton stated that Scott misinterpreted the statement as applying directly to him and alleges that his statement referred to drivers throughout the Redmond facility, not just to Scott. Crafton stated that only one observation of Scott has occurred and one follow-up observation of Scott has occurred. UPS did not find any safety violations in the follow-up.
Analysis
Article VII, Section 11(g) of the Rules prohibits "[r]etaliation or threat of retaliation by … any employer … for exercising any right guaranteed by … the Rules." To establish a violation of this provision, the protestor must show that conduct protected by the Rules motivated the adverse decision or conduct in dispute. The Election Administrator will not find retaliation if he concludes that the same action would have been taken in the absence of the protestor's protected conduct. Rodriguez, 2001 EAD 371 (May 18, 2001) (citing Higdon, 2001 EAD 325 (April 24, 2001)); Local 728 Unity Slate, 2001 EAD 369 (May 16, 2001); Hoffa Unity Slate, 2001 EAD 330 (April 27, 2001).
After reviewing the facts in their entirety we DENY Scott's protest because he has provided insufficient evidence linking UPS's actions towards him with his election activities.
Scott has provided no specific evidence that Bryant, Derrick or Crafton knew about his support of Leedham, and each manager denies knowing before this protest that Scott supported Leedham. Even assuming that they knew about Scott's support of Leedham, his protest provides no evidence that managers exhibited feelings of animus towards him for his support of Leedham or towards Leedham directly. When Scott ran in the Local 174 election as a Leedham supporter, he was given only one OJS ride, which was a follow-up ride on the day he returned from an injury. After winning a delegate position, Scott received six more rides, for which UPS has provided reasons. We will not assume without additional evidence that Scott's OJS rides were conducted for election-related reasons.
Scott argues that the problems he encountered while trying to get approval to attend the IBT Convention reflect UPS's attempts to deter his support of Leedham. Without making any determination regarding the parameters of the collective bargaining agreement between the IBT and UPS, we find that Derrick's reason for delaying his decision whether to permit Scott to attend the convention was not pretextual and was not designed to deter Scott from supporting Leedham.
Although Scott claims that UPS observed him in order to harass him and hinder his support of Leedham, Scott has failed to provide evidence that supports his theory. Scott appears to be correct in arguing that drivers with worse records than his have not been observed. Although Derrick's list of repeaters contains inconsistencies, these inconsistencies do not appear to reflect any systematic decision. Rather, it appears that Scott's recent ankle injury and his record of two previous injuries, even though they occurred more than nine years ago, led Derrick to place Scott on his priority list of drivers to be observed.
Finally, we resolved Scott's protest regarding his right to wear a Leedham t-shirt while working inside the Redmond facility in Scott, 2001 EAD 455 (September 18, 2001). In light of our findings that the protestor has not provided sufficient evidence to sustain his other claims, this single event, which occurred well after the filing of this protest, is insufficient to support a finding that UPS has subjected Scott to consistent or ongoing intimidation or retaliation for his support of Leedham.
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 (facsimile: 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 470
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
Todd Thompson
209 Pennsylvania Ave., SE
Washington, DC 20003
Matt Ginsburg
30 Third Avenue
Brooklyn, NY 11217
IBT Local 174
553 John Street
Seattle, WA 98109
Kenneth J. Pedersen
Davies Roberts & Reid LLP
101 Elliott Ave. W.
Suite 550
Seattle, WA 98119
Dan Scott
12924 64th Ave. SE
Snohomish, WA 98296
Lindsay Marshall
UPS, Inc. Legal Department
55 Glenlake Pkwy. NE
Atlanta, GA 30328
Kim Kaplan
Gary Tocci
Schnader, Harrison, Segal & Lewis
Suite 3600
1600 Market St.
Philadelphia, PA 19103
Christine Mrak
2357 Hobart Ave. SW
Seattle, WA 98116
[1] An "observation" occurs when a UPS manager or supervisor watches a package car driver on his or her route without the driver's knowledge.