IN RE: STEVE BISHOP, Protestor.
Protest Decision 2011 ESD 112
Issued: February 14, 2011
OES Case No. P-066-122210-AT
Steve Bishop, member, vice president and business agent of Local Union 391 and candidate for delegate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that candidates and supporters of the Team 391 slate campaigned on work time in work areas at YRC, in violation of the Rules.
Election Supervisor representative J. Griffin Morgan investigated this protest.
Findings of Fact
In contrast with past officers and delegates elections at Local Union 391, the executive board has recently divided, and the president and the secretary-treasurer of the local union now each head their own slates in the delegates and alternate delegates election. Local union president Claude Gray leads the Gray/Bishop Experience Team; secretary-treasurer Vernon Gammon, the Team 391 slate. In addition to these slates, non-incumbent members also seek election.
This split extends beyond the coming delegates election. The local union will conduct its officers election in Fall 2011, and Gammon has announced that he will run for local union president against Gray.
This protest concerns events occurring Tuesday, December 21, 2010 at a YRC terminal within the local union's jurisdiction. Local union secretary-treasurer Vernon Gammon and business agents Tony Scott and Wayne Gibbs attended a biscuit breakfast put on by YRC steward Jerry Truesdale. The protest alleged that Team 391 candidates and supporters campaigned in violation of the Rules on this occasion inside the workplace on employer-paid time.
Shop steward Jerry Truesdale is a 21-year employee of YRC, formerly Roadway. He detailed the events of December 21 for our investigator. Truesdale stated that prior to Christmas the members he serves as a shop steward collected money to buy him a Christmas ham as a gift for his service. With the money Truesdale had remaining after buying the ham, he put on a small holiday biscuits party for the members. Truesdale said that YRC was in such financial straits that there was no money for an employees' holiday party. Truesdale purchased the breakfast biscuits, a salesman at YRC bought donuts and the dispatcher provided the coffee. Truesdale said he told his members to come in early on December 21 and not to eat breakfast before getting to work.
Truesdale said that several drivers told him they wanted to speak with business agent Scott about YRC and the contract concessions that had recently been voted in. The drivers also said they wanted to meet the man, Gammon, who will run against the current local union president, Gray. Accordingly, Truesdale invited Scott to the breakfast and asked him to invite Gammon. Truesdale stated that some of his members support Gammon and some support Gray. Truesdale said he tries to stay out of the politics, but admitted he previously passed out Team 391 pledge cards as a favor to Scott.
Truesdale said that the terminal manager was scheduled to be off on December 21. Truesdale asked the dispatcher, a supervisor, to allow him to hold a 5 to 10 minute safety meeting that day, although both understood that the real purpose of the safety meeting was to allow employees who got to work close to 8:00 a.m. a few minutes to have breakfast. The dispatcher agreed to allow him to hold a short "safety meeting."
Truesdale said that Gammon, Scott and Gibbs arrived at the terminal between 7:15 and 7:30 a.m. that day. They spoke to members on the outside ramp that leads to the drivers' room. Truesdale said they then went into the conference room. He said both union members and non-bargaining unit employees came to the conference room to get a biscuit or a donut. He said employees sat in the conference room and swapped stories. He said some 20 to 25 people were in the conference room, some sitting around the table and others who merely walked in and grabbed something to eat. Truesdale said that Scott answered questions about YRC and told members that it was a good decision to vote for the concessions or they would now be unemployed.
Truesdale said that while they were talking in the conference room before 8:00 a.m., Gammon was asked about the local union officers election. Truesdale stated that Gammon said he did not like the way the local union was being run and that he could do better.
At 8:00 a.m., the bell rang and Truesdale then spoke to the employees in the conference room. He said that he thanked them for a good year and for their support of him. He told the drivers that he bought the biscuits because YRC was not doing anything for the holidays. He thanked Scott and Gammon for coming to the terminal. He told the members that the dispatcher wanted him to remind them to work safely. He told them to be careful on the ice. He spoke about using the three points of contact safety system. He said that he then told people to get on their jobs. He said everyone was at work a few minutes after 8:00 a.m.
Barry Hardy stated he arrived at work on December 21 shortly before his start time of 8:00 a.m. The dispatcher told him there was a safety meeting in the conference room. Hardy went to the conference room and stood in the doorway, but did not enter. He saw food on the side table and stated that the coffee was in the dispatch office. Hardy stated that when he arrived, business agent Tony Scott got up and greeted him. Hardy stated he exchanged greetings with Scott, but no other conversation.
Hardy saw Gammon and Gibbs sitting at the conference room table. He heard Gammon state that Gray went to Las Vegas rather than attend the YRC craft meeting at which YRC members voted to accept a 15% pay cut. Hardy then heard Jody Whitlock say that we support you in whatever you do. Hardy said that Gammon stated he had asked Gray to step down as president, but that if Gray did not resign voluntarily, Gammon would be president in September 2011. Hardy said there was further discussion about the officers election scheduled for September 2011.
Hardy then asked the room, "Are we having a safety meeting?" Hardy said he then left the room and went to work.
Jody Whitlock is a local union member employed at YRC. He stated that on December 21, he arrived at work around 7:30 a.m. and saw Tony Scott, Vernon Gammon and Wayne Gibbs on the ramp leading to the dispatch office and the drivers' room. Whitlock said he stopped and spoke with them about YRC's financial condition. Whitlock and Gammon are both from Rockingham County and have known each other for many years.
While on the ramp, Whitlock also spoke with Gammon about the delegates election and the officers election. Whitlock stated that Gammon asked him to be at the upcoming nominations meeting because Gammon was running for a delegate position.
After speaking with Gammon on the ramp, Whitlock went into the conference room for a biscuit. Whitlock recounted a number of conversations in the conference room. He stated that he spoke about his dissatisfaction with Claude Gray firing Jack Cipriani. He recalled expressing his support for Gammon and Cipriani, who is his neighbor. He stated that Gammon or Scott talked about how YRC was doing and that if the employees had not made the recent vote they would not be there today. Whitlock also recalled Jerry Truesdale speaking about what a good year it had been and reminding workers to be careful due to the ice and to use the three-point method.
Whitlock did not recall Gammon saying that he had asked Claude Gray to step down as president of the local union or that Gammon stated he would be the president in September. He agreed with Hardy that Gammon was sitting at the conference room table.
Gammon told our investigator that he, Gibbs and Scott were on vacation on December 21 and that they were invited to YRC to have breakfast with the members. Gammon stated that they did not go to YRC for the purpose of campaigning for the delegates election and therefore did not take campaign support pledge cards or campaign material there. He stated they were at YRC from approximately 7:15 to 8:00 a.m. They went to the break room before work started and shared breakfast with the members.
Gammon stated that one of the members asked him where Claude Gray had been during the YRC craft meeting to discuss the vote on the contract concessions. Gammon stated that he told the member that Gray was in Las Vegas on union business. Gammon also stated that before 8:00 a.m., Jody Whitlock asked him whether he was going to run for president of Local Union 391. Gammon stated that he replied that he was going to run for that office.
Gammon stated that once the safety meeting started he did not speak and neither did Scott or Gibbs. All three of them left when the members started working shortly after 8:00 a.m.
Wayne Gibbs is a business agent for Local Union 391. He is a candidate for delegate on the Team 391 slate. He does not have responsibility for YRC. Gibbs stated that he was on vacation and went to YRC with Scott and Gammon because they were invited for breakfast by the shop steward. They arrived around 7:15 or 7:20 a.m. Gibbs stated they talked to members about business issues at YRC. Gibbs stated they did not speak about the delegate campaign.
Gibbs stated there was a safety meeting in the conference room. Gibbs confirmed that Jody Whitlock asked Gammon, "Are you running as the main guy in September?" Gammon responded, "Yes, I am." Gibbs stated that he was not asked any questions about the delegates election or the officers election.
Tony Scott is a business agent for Local Union 391 and his responsibilities include YRC. Scott told our investigator that shop steward Jerry Truesdale called to invite him and Gammon to join his members for a biscuit breakfast Truesdale was putting on. Scott accepted the invitation for himself and Gammon.
When Scott, Gammon and Gibbs arrived at the terminal on December 21, Scott used his badge to gain access through the turnstile. Once inside, Scott said that he, Gammon and Gibbs stood on the ramp to the drivers' room and spoke with YRC employees as they came to work. Scott recalled that most of the discussion concerned conditions at YRC. They did not take campaign literature or pledge cards into YRC and did not campaign among the members. After spending some time on the entrance ramp, Scott said he, Gammon and Gibbs went to the conference room where breakfast was set up.
In the conference room, there were biscuits, orange juice, and donuts. Both union and nonunion people came into the conference room to get some food. Some sat down at the conference room table and others just walked in, got some food, and walked out.
While in the conference room, Scott recalled one member asking Gammon where Claude Gray had been during the recent YRC craft meeting. Scott also recalled Gammon being asked if he was going to run for president. Scott stated that at 8:00 a.m., shop steward Truesdale started the safety meeting. Scott recalled Truesdale talking about working safely on the ice. No one from management was at the safety meeting. Scott stated that neither he, Gammon nor Gibbs spoke once the safety meeting started.
Scott stated that around 8:00 a.m., he saw Barry Hardy standing in the doorway to the conference room. Scott exchanged greetings with Hardy as Scott made his way to the restroom.
Scott stated that when Jack Cipriani was president of the local union, he encouraged business agents to become knowledgeable about the employers and the issues of the members of those employers, even though the business agent had no responsibility for that employer. Scott stated that business agents were therefore encouraged to accompany other business agents when those agents were walking through a plant or terminal and speaking with the members.
Analysis
Local Union 391 will conduct two elections this year. The first is the delegates and alternate delegates election governed by the Rules; the second is the Fall 2011 officers election governed by the IBT constitution. This confluence of elections coupled with the political split on the local union executive board has generated more campaign activity than is typical for an election year. In assessing whether alleged incidents of impermissible campaigning violate the Rules, we carefully consider whether the alleged campaigning was directed at an election over which we have jurisdiction. In Webb, 2010 ESD 56 (December 13, 2010), we held that alleged campaign statements made at a local union meeting by president Gray and business agent Roth were directed to the officers election and not the delegates election, viz.
The tenor of the statements by Gray and Roth confirmed the political split on the local union executive board. However, the political references were directed expressly to the local union officers election and the decision the membership would make concerning who would lead the local union. The only reference to the delegates election concerned the expense associated with sending 10 alternate delegates to the convention; it did not devolve into campaign statements or rhetoric concerning the election of delegates or alternate delegates.
The evidence does not support the protestors' contention that the back-and-forth at the general and special UPS meetings held November 13 constituted a debate or campaigning concerning elections over which we have jurisdiction. To the extent statements made by Gray and Roth stated political positions, those statements were expressly linked to the local union officers election and concerned who would lead the local union in coming years.
We reach the same conclusion here. First, we find that Scott, Gammon and Gibbs entered the YRC terminal on December 21 for a biscuits breakfast and not to campaign in the delegates election. To the extent that Gammon made statements while at YRC that could be construed as campaigning, those statements were directed to the officers election and not the delegates election. Thus, Gammon's criticism of local union president Gray's leadership of the union, his stated request that Gray resign his office, and his statement that he intended to replace Gray president in September constitute campaign advocacy concerning the officers election and not the delegates election.
The lone statement the evidence showed Gammon made concerning the delegates election came in response to Whitlock's question on the ramp outside the terminal building. After Whitlock raised the subject, Gammon asked him to attend the delegates election nominations meeting because Gammon would be nominated for delegate there. We find this statement did not constitute campaigning.
Accordingly, we DENY this protest for lack of jurisdiction.
Although we deny the protest, we remind officers and business agents that using their status as union officials to gain access to facilities for a campaign purpose that is off-limits to rank-and-file members not employed there may violate the Rules. Our precedents address this point directly, viz.
The use of union position to gain access to restricted areas is an expenditure of union funds and violates Title IV, section 401(g) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 481(g) (1982). Dole v. Local 226 Hotel and Restaurant Employees Union, 718 F.Supp. 1479, 1483 (1989). A violation of LMRDA Section 401 (g) is a violation the Rules. Rules, Article XII.
Brown, 2006 ESD 113 (February 27, 2006), aff'd 2006 EAM 12 (March 3, 2006) (violation to use union position to gain access to employer's premises not available to general public); Milligan, 2001 EAD 156 (February 12, 2001) (violation to use union office to gain access to employer premises). We make no finding here that Scott, Gammon or Gibbs improperly used their union positions to gain access to YRC in order to campaign because we find that no campaigning occurred that was related to an election over which we have jurisdiction. Nonetheless, officers and agents are cautioned to insure that they have a business purpose for entering a facility and are not entering solely to campaign.
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, 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.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2011 ESD 112
DISTRIBUTION 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 Keegel 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
Steve Bishop, Vice President
Teamsters Local Union 391
Colfax, NC 27235
sbishop@teamsterslocal391.org
Vernon Gammon, Secretary-Treasurer
Teamsters Local Union 391
3910 Teamsters Place
Colfax, NC 27235
vgammon@teamsterslocal391.org
Tony Scott, Business Agent
Teamsters Local Union 391
3910 Teamsters Place
Colfax, NC 27235
tscott@teamsterslocal391.org
Wayne Gibbs
P.O. Box 303
Colfax, NC 27235
wgibbs@teamsterslocal391.org
Claude Gray, President
Teamsters Local Union 391
P.O. Box 35405
Greensboro, NC 27425
cgray65663@aol.com
Mike Webb
1200 Oak Grove Church Road
Wake Forest, NC 27587
d2h2w2@yahoo.com
J. Griffin Morgan
Elliot Pishko Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.com
Maria Ho
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
mho@ibtvote.org
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey J. Ellison
214 S. Main Street, Suite. 210
Ann Arbor, MI 48104
ellisonesq@aol.com