Protest Decisions

            Michael Zajac, member of IBT Local Union 317 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 on the opposing slate distributed campaign literature using employee mailboxes located at the employees’ workplace.  Zajac asserted that this use of worksite mailboxes constituted impermissible campaign assistance from an employer. 

            In Zajac, 2011 ESD 173 (March 21, 2011), we denied the protest, finding no Rules violation because of a pre-existing right to use the workplace mailboxes to distribute literature. 

            In addition to the issue the protest raised expressly, we also considered an issue uncovered during the course of our investigation, specifically whether prohibited retaliation occurred under the Rules in connection with one member’s questioning campaign access to an employer’s parking lot  We found that it did and directed a remedy consisting of a cease and desist order and the posting of a remedial notice.

            An appeal was taken from our decision only on the retaliation finding.  Upon review of the appeal, we asked that the Election Appeals Master remand the case for further investigation.  Such was done by order dated April 1, 2011.  11 EAM 29.

            We have completed the re-investigation and issue this decision after remand.  We adhere to our original decision, which was not appealed, concerning campaign use of employee mailboxes.  On the retaliation issue, we supplement our findings of fact and reach a conclusion vacating the original finding of retaliation.

            Election Supervisor representatives Deborah Schaaf and Jeffrey Ellison investigated this protest. 

Findings of Fact and Analysis

            As noted in the original decision, this protest concerned campaign activity at North Syracuse Central Schools Transportation Department during the delegate election period for Local Union 317.  After receiving campaign literature from a slate of candidates she did not support, Rachel Doyle, a school district employee and member of Local Union 317, asked protestor Zajac and John DePietro to leaflet the employee parking lot at the school district bus garage on behalf of their slate, a slate Doyle supported.  Doyle, Zajac and DePietro leafleted for about an hour on February 18, then left.  Doyle reported that her steward, Diane Norton, complained about this activity to the school district.  Subsequently, after the leafleters had completed their activity, Jeri Burke, a dispatcher, told Doyle that non-employees are prohibited access to school property, including the employee parking lot. 

            On those facts, we found that Doyle had been admonished for giving parking lot access to non-employees Zajac and DePietro.  We found that steward Norton and her business agent, Mark May, had complained to the employer about the activity of the leafleters, which led to Doyle being admonished by dispatcher Burke.  We said that this constituted impermissible retaliation under the Rules, because Norton and May had involved the employer in an issue concerning whether certain campaign conduct was permissible.  We said that if they believed that Doyle, Zajac and DePietro had no right to campaign in the employee parking lot, Norton or May should have filed an election protest rather than refer the matter to management.

            The Rules protect Local Union 317 members’ right to campaign in the bus garages’ parking lot.  See Rules, Article VII, Section 12(e).  As the Rules contemplate, the campaign activity that occurred here was limited to the workplace parking lot where union members may campaign among other union members.  The campaigners were able to carry out their permissible activity without interference by the employer, and left of their own accord upon completing their campaigning.

            We now find, contrary to the conclusion reached in the original decision, that Doyle was not subjected to impermissible retaliation as the result of activity by steward Norton or business agent May.  Investigation after remand showed that dispatcher Burke did not admonish or otherwise issue any type of discipline, including anything as mild as an oral reprimand, to Doyle for the protected activity of campaigning in the employer parking lot.  Accordingly, we vacate the conclusion that Doyle was retaliated against in violation of Article VII, Section 12(g) of the Rules.

            Remand investigation found the following facts.  Around 4:45 pm on February 18, while dispatcher Burke was meeting with two drivers, Diane Norton and another employee came into her office, pointed to the front of the building, and told Burke that improper campaigning was occurring.  According to Burke, they identified Doyle as one of the people doing the campaigning.  Burke told our investigator that she looked out the window through the blinds and could see a small group standing at the end of the walkway, but she could not identify any of the people or see what they were doing.  Burke told Norton she would look into it.  According to Burke, Norton repeated that it was improper.  Burke told our investigator that Norton was “livid – well, extremely rattled.”  Burke said she then called Larry Butler, the school district’s security chief, to ask for direction in handling the matter.  She said his voicemail was full, so she sent him an email.[1]  Around the same time, another employee came to Burke’s door saying there were two people “out there” from UPS.[2]  Burke asked if they were “with the union,” and the person said “yes.”

Burke further told our investigator that, while she was waiting for a response from Butler, Assistant Superintendent Wayne Bleau called.  Bleau told Burke he “just got an anonymous phone call” (according to Burke) that there are people handing out union paperwork or campaigning on the property.  Bleau told Burke that non-employees are not allowed on school property no matter what they are doing there, and he instructed Burke to tell them to leave.  When Burke checked the parking lot and found that the leafleters had departed, she sent a second email to Butler telling him about Bleau’s call and stating further that she had taken no action because the group had already left the lot.[3]  

Burke told our investigator that she relayed to Doyle the conversation she had with Bleau, to the effect that non-employees are prohibited from campaigning in the employee parking lot or for any other reason.  Burke denied that she had a formal meeting with Doyle to caution her about it or gave her any kind of official reprimand. 

Assistant Superintendent Bleau told our investigator that he could not recall receiving an anonymous phone call about campaigning in the bus garage parking lot or calling dispatcher Burke about it.  He maintained to our investigator, however, that non-employees are not permitted in the parking lot for any reason.

Norton denied that she spoke with Burke about the campaigning, stating instead that she was present when another employee did so.  We credit Burke because Burke’s contemporaneous email to Butler identified Norton as the person who stated that the parking lot activity was not permitted.  For lack of evidence, we reach no conclusion as to the identity of the person who made the anonymous phone call to Assistant Superintendent Bleau.

However, as noted, Burke denied that she took any action against Doyle for the parking lot activity.  Instead, she merely passed on to Doyle the statement Bleau made that parking lot campaigning is prohibited.

Article VII, Section 12(e) grants to members the right to campaign in parking lots maintained by employers for their employees who are members.  This right is enforceable against all employers pursuant to the All Writs Act.  Given the evidence we credit here that steward Norton believed that such use of the parking lot by non-employee members of the local union was impermissible, we order Local Union 317 to post the notice attached to this decision on the worksite bulletin board at North Syracuse Central Schools Transportation Department only and to maintain it there until November 23, 2011.  Such posting shall be completed within two days of the issuance of this decision; within one day thereafter, Local Union 317 shall supply a compliance affidavit to our offices.

            We take no further action.  Specifically, we do not extend the notice posting requirement to other employers under the jurisdiction of Local Union 317, finding no evidence that the right of non-employee members of the local union to campaign in employee parking lots has been questionedat any other location.  Further, we take no action against Norton or any other official of Local Union 317, finding that the campaigners enjoyed the right to leaflet in the school district’s bus garage parking lot on February 18, 2011 without interference and left of their own accord after completing their activity.

            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.