IN RE: RON JOSEPH, Protestor.
Protest Decision 2006 ESD 114
Issued: February 27, 2006
OES Case No. P-06-164-022706-AT
Ron Joseph, a member and business agent of Local Union 639, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). Joseph alleged that Addie Andrews, a Local Union 639 member and UPS employee was campaigning inside the UPS facility during work time.
Election Supervisor representative J. Griffin Morgan investigated this protest.
Findings of Fact
Andrews handed out campaign leaflets inside the UPS facility approximately 5 feet from the exit door, 5 feet from the break room, 12 feet from the mechanic's station, and under the conveyor belt. Andrews considered the area a non-work area.
UPS Labor Relations Manager Matt Webb states that UPS considers this to be a work area. Webb stated that campaigning is allowed only in non-work areas and that those areas are the break room, the locker room and outside the guard shacks.
Business agent Joseph stated that in his 40 years of experience with UPS, campaigning was allowed only the areas described by Webb.
Andrews distributed the leaflets spontaneously in response to questions he received from employees who were coming into work with leaflets received from the opposition slate in the parking lot outside the guard shack. He did not go to work intending to distribute literature. He passed out about 8-10 leaflets to workers coming in the door. Joseph and Andrews agree that the period of time Andrews distributed campaign material was less than five minutes.
Both Andrews and Joseph agree that Andrews distributed the literature prior to 8:30 a.m. Andrews clocks in at 8:35. The workers to whom he gave the literature had not yet clocked in. His campaign activity was not observed by management.
Analysis
Article VII, Section 12 (a) of the Rules states that "[n]o candidate or member may campaign during his/her working hours. Campaigning incidental to work is not, however, violative of this section. The Rules protect "incidental" campaigning on work time to ensure that members may interact normally during the course of their on-the-job responsibilities. Such interaction may include campaigning. George, P490 (April 4, 1996). See e.g. Benson, Post 67 (April 16, 1991) ("use of a CB radio [for campaigning] while otherwise working…is exactly the type of normal 'shop talk' the rule on incidental campaigning was meant to [cover]"). In assessing whether campaign activity is incidental, one looks to the absence of evidence that an employee failed to perform work, deviated from prescribed duties, or interfered with another employee's work. Grossman, P476 (March 6, 1996); Jones, P100 (December 20, 1990), aff'd, 90 EAM 26 (December 28, 1990). One also looks to employer tolerance of similar personal activity, Halberg, P403 (February 22, 1991), and to the brevity of the campaigning. Kaiser, P56 (December 12, 1990). The incidental exception does not cover campaign activity distinct in time or place from the employer's normal work. George, supra. The incidental exception has been applied where a member was campaigning on his break time among employees who were on work time. Rosas, 2001 EAD 200 (February 27, 2001).
In this case, neither Andrews his co-workers on time paid for by the employer when Andrews distributed the handbills. Because he was not yet on-the-clock, Andrews did not fail to perform his work, deviate from prescribed duties, or interfere with other employees' work.
Accordingly, 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, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, 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
2006 ESD 114
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Ronald L. Joseph
23628 Kingston Shore Lane
California, MD 20619
Addie Andrews
9376 Harvest Way
Laurel, MD 20723
Frank Varga
4230 Laurel Lane
Edgewater, MD 21037
Thomas Ratliff, President
Local Union 639
3100 Ames Place, N.E.
Washington, DC 20018
J. Griffin "Griff" Morgan
Elliot, Pishko, Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com