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Office of the Election Supervisor for the International Brotherhood of Teamsters



IN RE: KELLEY MCNALLY,                                            2015-2016 EAM 24 (KAR)

                                                                                                DECISION RE 2016 ESD 237




            Protest Decision 2016 ESD 237 (ESD 237), denying a protest by Kelley McNally (OES Case No. P-201-030316-NE), a member of Local Union 251, was issued on June 7, 2016.  The protest alleged that Paul Santos, Brooke Reeves, and the elected leadership of Local Union 251 impermissibly retaliated against Ms. McNally for activity protected by the Rules.


On June 10, 2016, Ms. McNally, represented by David J. Hoffa, Esq., submitted an appeal of ESD 237.  A telephonic hearing on the appeal was held on June 15, 2016.  The following individuals attended the hearing:   Ms. McNally, David J. Hoffa, Esq., Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor (OES), Peter Marks (OES), and Julian Gonzalez, Esq., on behalf of Brooke Reeves.


ESD 237


            The Election Supervisor’s findings of fact may be summarized as follows:


Ms. Reeves and Mr. Santos, who is the elected president of Local 251 and a full-time business agent, were candidates for delegate on the Teamsters United slate.  Ms. McNally was a candidate for delegate on the Teamsters Strong slate.  Ms. McNally protest alleges that Ms. Reeves and Mr. Santos retaliated against her by undertaking an effort to cause Ms. McNally’s employer to impose discipline on Ms. McNally for workplace misconduct, which efforts were motivated by Ms. McNally’s delegate candidacy on the Teamsters Strong slate.


Ms. McNally and Ms. Reeves, are both employed full-time by Rhode Island Hospital (RIH).  Ms. Reeves also fills the role of “liaison,” a quasi-union steward.  In February 2016, Ms. McNally was observed carrying a ream-sized box (or boxes) from the in-house RIH print shop to the RIH emergency department where she works as a senior unit secretary.  This observation was reported to Ms. Reeves, who suspected that Ms. McNally had used employer resources to support her slate’s campaign by having campaign flyers printed by the employer’s in-house print shop.  Ms. Reeves contacted Mr. Santos and asked that he inquire about the material Ms. McNally was seen carrying out of the print shop.  Mr. Santos did so, and was told that McNally had ordered and received supplies needed in her department.  After receiving this answer, Mr. Santos took no further action. 


Ms. Reeves, however, was not satisfied with the response.  She emailed employer representatives seeking further investigation.  She wrote “as not only a candidate on the United Action delegate slate, but also a concerned employee” alerting the employer to her concerns about Ms. McNally, whom she identified as “an employee and member of our opposing slate.”  The employer renewed its investigation and took “corrective action” that concluded the following:  (1) That Ms. McNally ordered RX paper from the print shop;  (2) That she did not follow “the usual and customary departmental procedure for ordering RX paper;” (3) That she “did not properly secure the RX paper in compliance with the usual and customary departmental procedure;” (4) That the RX paper could not be found “and is presumed missing notwithstanding a thorough and comprehensive search of the Emergency Department”; and (5) That as a result, Ms. McNally has been directed to apply for equivalent vacant unit secretary positions in other departments as they become available, will accept such a position if offered, and will not seek to return to the emergency department under its current leadership.   The “corrective action” also set out a procedure for Ms. McNally to apply for and obtain a position as a unit secretary in a RIH department or unit other than the emergency department.  Ms. McNally testified at the hearing on her appeal that she was suspended for three days without pay.  


Ms. McNally acknowledged receipt of the terms of the corrective action, waived the right to union representation at the meeting with human resources at which they were presented, and then filed a grievance protesting the action.  The “corrective action” does not mention the delegate election.  It does not contain any finding that the Teamsters Strong slate had anything printed at the RIH print shop.  The findings relate solely to failure to follow RIH procedures to account for and secure RX paper. 


Ms. McNally filed a protest alleging retaliation for her Rules-protected candidacy in the delegate election, stating that the protest “has nothing to do with the discipline * * * imposed on me,” arguing instead the Ms. Reeves violated the Rules by urging the employer to investigate Ms. McNally.


The Election Supervisor granted the protest, concluding that Ms. Reeves crossed the line between permissible reporting of job-based misconduct into a Rules violation by invoking her status as a candidate and that of Ms. McNally as justification for requesting that the employer investigate Ms. McNally’s conduct.


As remedy, the Election Supervisor ordered Ms. Reeves to cease and desist from “referencing or invoking election-related activities as a predicate for reports of job-related misconduct.”  The Election Supervisor also ordered Local Union 251 to post a remedial notice on union worksite bulletin boards and its website. 


The Election Supervisor


specifically considered whether to subject Reeves to disqualification – “by nature, an anti-democratic remedy,” Cheatem, Post-27 (November 17, 1997) (Conboy, Election Appeals Master) – and conclude it is not appropriate to this case.  While a disciplinary process followed Reeves’s report to RIH and that has affected McNally personally, Reeves’s action did not involve impeding voter access to candidates, physical violence, misuse of union resources, or false statements to the OES.  Misconduct of that nature threatens the integrity of the process for expressing voter intent and has warranted disqualification in past cases.  See Del Viehland, 2006 ESD 271 (May 23, 2006) (disqualification for knowingly providing inaccurate, out-of-date worksite lists); Fauth, Raisor and Reynolds, 2016 ESD 176 (April 20, 2016), aff’d 2016 EAM 19 (May 2, 2016) (disqualification for use of physical force and verbal threats of further violence); Cheatem, Post-27 (November 17, 1997) (secret use of union funds to support incumbent campaign); Reyes, 2011 ESD 281 (June 11. 2011) (disqualification for conduct evincing “flagrant disrespect for election rules” and for providing “conspicuously false and misleading responses” to the OES investigator).  Reeves’s conduct does not approach that level.  We conclude that a notice posting explaining the violation and the governing rules is proportional to the violation found. 


ESD 237 at 5.


Appeal by Kelley McNally


On appeal, Ms. McNally contends that the remedy issued by the Election Supervisor is “meaningless” and “completely inadequate given what occurred,” and that the Election Supervisor should have disqualified Ms. Reeves from serving as a delegate.  Letter from David J. Hoffa, Esq., dated June 10, 2016 (“Hoffa Appeal Letter”).  Ms. McNally argues that Ms. Reeves’ acts “rise to the level of knowingly affecting the democratic process,” noting that “[i]nstead of doing her job of being McNally’s union representative at RIH, Reeves used her position to report McNally’s actions for her own political gain.”  Hoffa Appeal Letter at 2.  Ms. McNally also asserts that at one point she was told that she would have to apply for a job inside a different RIH facility, allowing Ms. Reeves to “get her principal opponent moved out of the main RIH hospital and away from her base of political support.”  Id.  


            Ms. McNally complains that “[d]espite a finding of retaliation, the OES came up with a nearly useless and untimely remedy.” 


Reeves’ actions, far from “falling short” of egregious election misconduct, are the epitome of retaliation – using your position in the union to trump up charges against your opponent such that your opponent almost gets fired and moved out of your facility, all so you can win an election, are exactly what the OES should be here to prevent.  Since they couldn’t prevent this by timely investigating and deciding this matter during the election, the remedy becomes crucial if it is meaningful and decisive.


The most effective and practical remedy is to disqualify Reeves from serving as delegate for retaliation.  Otherwise, the message is that retaliation is a great election tool that if used correctly, can get you to Las Vegas.  Even though your job is to help your fellow union member, if they run against you, you can win by getting them in trouble with your employer and might even get them moved to a remote location.  


The cease and desist, while standard, is useless as a remedy because the delegate election lapsed without a decision from the OES and the delegates will be seated in just a few weeks.  By this the OES is saying that Reeves should cease and desist from retaliating against McNally again, even though Reeves retaliated successfully and will represent 251 at the Convention at McNally’s expense.  The election is over, so the cease and desist is literally no longer applicable.  


The notice posting is equally meaningless because it will be distributed as Reeves is flying to Las Vegas.  The only sensible remedy that actual remediates the retaliation is disqualification


Hoffa Appeal Letter at 2-3 (emphasis in original).



Decision of the Election Appeals Master


When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.”  Article XIII, Section 4.  In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.  “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.”  Hailstone & Martinez, 10 EAM 7 (September 14, 2010).


            Applying this standard, I find that the Election Supervisor appropriately decided not to disqualify Ms. Reeves.  As noted by the Election Supervisor, disqualification is an anti-democratic remedy reserved for the most egregious violations of the Rules.  Notably, Ms. Reeves’ slate polled more votes than any candidate on Ms. McNally’s slate, and the narrowest margin of victory between a winning and losing candidate was 591 votes in the delegate race out of 1,711 case—a 35% margin of victory. 


            The appeal of ESD 237 is denied and the decision of the Election supervisor is affirmed.










DATED:  June 25, 2016