Protest Decisions

IN RE: RICH PETROVSKY,                      )           Protest Decision 2011 ESD 267

                                                                        )           Issued: May 28, 2011

            Protestor.                                           )           OES Case No. P-125-021011-FW

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            Rich Petrovsky, member of Local Union 986, 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 Greg Sullivan conducted surveillance of campaign activity in violation of the Rules.

            Election Supervisor representative Rochelle Goffe investigated this protest.

Findings of Fact

            According to its approved local union election plan, Local Union 986 is entitled to 19 delegates and 6 alternate delegates[1].  At its nominations meeting held January 8, 2011, 25 candidates were nominated for delegate and 6 for alternate delegate.[2]  Two slates were formed: the Griswold/Harren Shop Stewards and Members slate, comprised of 19 candidates, and the 986 Members for Sandy Pope and Reform slate.  Ballots were mailed February 7 and counted February 28.  All candidates on Griswold/Harren won their elections.

            Protestor Petrovsky, a candidate on Griswold/Harren, alleged the following:

On February 8, 2011 at approximately 1:30 p.m., Greg Sullivan engaged in acts of intimidation in violation of the Rules by conducting surveillance of me and other candidates on my slate while we were handing out campaign fliers in the employee parking lot of the San Francisco Maintenance Base of United Airlines at the San Francisco Airport.  Sullivan was seen from the East and West parking lots taking the photographs.  He was also seen on a pedestrian overpass between the United Airlines maintenance building and the West parking lot taking photos of the people who were distributing campaign fliers.

Sullivan also violated the Rules by conducting this surveillance during his working hours, and by using a blue United Airlines pickup truck to drive around the parking lots to take the pictures.  I believe he was using a Union cell phone to take the pictures, which is also a violation of the Rules.

            Although Petrovsky reported the alleged violations, he did not observe any of the activity that gave rise to the protest.  Fred Wood, day-shift mechanic and shop steward at UAL and delegate candidate on Griswold/Harren, told our investigator he leafleted three shift changes that day.  He said he took the day off work to campaign.  During the 1 p.m. to 2 p.m. stint, Wood said that Mike Haines, another campaigner, came up to him and asked how he liked having his picture taken.  Wood did not see anyone take his photo and was unaware that any photos had been taken.  However, about ten minutes earlier, he saw a blue company vehicle driven by a person he did not know wearing a baseball cap.  Ten minutes after Haines’ question, Wood said he saw the same vehicle driven by the same unknown person, but this time a passenger he believed was Greg Sullivan was also in the vehicle.  He did not see a camera or anyone taking photos.

            Haines told our investigator that he supported Griswold/Harren and left his shift an hour early without pay to leaflet the 1 p.m. to 2 p.m. shift change.  As he approached the gate from the rear, Haines said he saw a person in a dark blue pickup truck raise and point a camera, apparently in the direction of his fellow leafleters.  The truck moved about 5 yards and stopped; he said he then saw the camera raised and pointed again in the direction of his fellow leafleters.  The driver wore a baseball cap.  Haines did not know who it was; however, he did not see him directly but rather from behind. 

Haines stated further that about fifteen minutes later the truck returned.  He did not see a camera at that time.  On this occasion, two people were in the vehicle.  Haines said he thought the passenger was the person who had driven the vehicle previously, but he was not positive.  When he discussed the situation with Wood, he said Wood told him the passenger was Sullivan, whom he does not know.  On both occasions, Haines said the truck was on the opposite side of the fence from the parking lot where the leafleters were campaigning.  Haines told our investigator he did not feel intimidated by the conduct.

            Mike Albertin told our investigator that he leafleted that shift change as well, at the bridge at the south gate.  He did not observe any person taking photos.  He denied that anything unusual occurred, although he said he saw Sullivan there and Sullivan is not usually in that area.

            Sullivan, a delegate candidate on the 986/Pope slate, is chief steward for approximately 500 members in a work area that sprawls across four acres.  He told our investigator that around noon on February 8, he signed out a company vehicle to post pre-retirement seminar notices on the eight bulletin boards for which he is responsible.  He completed that work about 12:45 p.m. and returned to the union office at the worksite to finish some paperwork.  At about 1:30 p.m. and not yet having taken his lunch break, Sullivan returned the truck to the auto garage.  Enroute, he saw Fred Wood, whom he knew to be an hourly employee whose shift was not yet over, leafleting the east gate.  Sullivan said he flipped open his personal phone and took a picture to document the leafleting; he then continued to the garage.  He told our investigator he took only one photo, which he said did not turn out.  He said he did so to document what he thought might be a Rules violation of campaigning on work time.

            When he arrived at the garage, Sullivan said he told a mechanic on break there what he saw.  The two then drove the 400 yards back to the location, turned around, and returned to the garage.  Sullivan said no photos were taken on the return trip.

            Sullivan did not file a protest over the leafleting.

Analysis

            Article VII, Section 12(f) prohibits “[r]etaliation or threat of retaliation … against a Union member … for exercising any right guaranteed” by the Rules.  Any act that constitutes coercion, interference or harassment of any member in the exercise of these essential rights is forbidden.  Surveillance is one of those prohibited acts.

            The test of surveillance is an objective one.  Where the conduct “creat[es] the appearance of surveillance,” the actor’s claimed subjective motivation to the contrary is unavailing.  As Election Administrator Wertheimer noted, “The National Labor Relations Board has long applied an objective test in cases where unlawful restraint and coercion of employee rights is alleged, and, rather than focusing on motive, holds that the appropriate test is whether the challenged conduct ‘may reasonably be said … to interfere with the free exercise of employee rights under the Act.’ NLRB v. Ford, 170 F.2d 735, 738 (6^th Cir. 1948); see also, NLRB v. Grand Canyon Mining Co., 116 F.3d 1039, 1045 (4^th Cir. 1997)(“creat[ion of] an impression of surveillance” violates NLRA prohibition against coercion of employee right to engage in protected union activity (emphasis supplied).); and BRC Injected Rubber Products, Inc., 311 NLRB 66, 71 (1993). 

            On the facts presented here, we find that Sullivan did not engage in prohibited surveillance.  Several facts persuade us that his conduct could not reasonably be said to interfere with free exercise of campaign rights.  Thus, Sullivan did not detour to get to the area in question but instead passed through it while performing his duties.  Further, he did not linger so as to leave the impression that he was “camped out” or a “watchdog” to observe the activity.  Finally, two of the three campaigners interviewed were unaware even that Sullivan was present; the third said Sullivan’s activity did not intimidate him.

            With respect to the remaining allegations, we find that Sullivan was engaged in his work duties when he passed the campaigners, and his unsuccessful attempt to photograph them while doing so was incidental to the performance of his work duties and therefore permitted under Article VII, Section 12(a).  Finally, even if the phone Sullivan used to take the photo was union-issued, we find no violation, as Sullivan took the photo for use in the protest procedure, and union resources generally may be used in that process.  Brown, 2006 ESD 194 (April 20, 2006).

            Accordingly, we DENY the 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, NY 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.