Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: RHONDA MYERS,                                    )           Protest Decision 2016 ESD 119

                                                                        )           Issued: February 25, 2016

            Protestor.                                           )           OES Case Nos. P-114-011916-MW  

____________________________________)                      

Rhonda Myers, member of Local Union 710, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that the Rebuild 710 Delegate Team slate has improperly campaigned inside the UPS air hub in Rockford, Illinois. 

            Election Supervisor representative Joe Childers investigated this protest.

Findings of Fact and Analysis

            The campaign material at issue were multiple copies of a blue 3”x5” card, bearing the phrase “WE CAN DO THIS,” wrapped around the IBT horses-and-wheel logo. Directly beneath the logo were the words “TEAMSTERS REBUILD 710 DELEGATES TEAM.”  Flanking the logo were red, white and blue buttons reading “VOTE THE SLATE.”  The bottom of the card listed information on how to donate to the slate and the slate’s mailing and Facebook addresses.

            The protest alleged that two such campaign cards were placed on a bulletin board in a work area at the UPS facility sometime before Christmas 2015 and then were taken down a day or two later.  The bulletin board is toward the rear of the facility, near where cars are washed.  The bulletin board is regularly used to post Local Union 710 materials of interest to members.  The protest further alleged that the same campaign index cards were seen on a work desk in a work station at the UPS facility, and one was retrieved by an employee and given to the protestor.  According to the protest, on both occasions a member of the Rebuild 710 Delegate Team slate, Mark Mori, a candidate for alternate delegate, was seen in the vicinity of the campaign literature.  During the investigation, the protestor reported that the same campaign index cards were left on a table in a break area.  Again, Mori was seen in the vicinity of the table at the time the literature was first observed.  Finally, the protest claimed that Mori was told by UPS management to remove a Rebuild 710 Delegate Team sticker from his locker at the facility.

            A witness confirmed to our investigator that she saw the campaign index card posted on a bulletin board near the rear of the UPS facility in a work area before Christmas.  The witness further confirmed that the cards were found on a desk in a work area where she placed her water bottle during work.  Finally, the employee told our investigator that on the same day as she was interviewed, she observed the same campaign literature on a table in a break area.  She stated that she saw Mori leaning on a table in the break area before she went into the restroom.  When she exited the restroom, Mori was still near the table.  After he left, the witness approached the table and observed four index cards containing the same campaign literature for the Rebuild 710 Delegate Team slate.

            Mori told our investigator that he placed the campaign index cards on a table in the break room on the date specified by the employee who witnessed the cards at that location at that time.  He said he passed out campaign literature cards to members in break areas on break times, and on at least one occasion gave an employee a campaign button.  Mori stated that he campaigned only on break time, not on work time.  He denied placing the campaign index cards on the bulletin board in question.  He admitted that UPS management had ordered him to remove a Rebuild 710 Delegate Team sticker from his locker, and stated that management threatened to discipline him if there was a repeat incident.  This incident with management occurred either right before or right after the nomination meeting, January 10, 2016.  Mori stated that the index card on the bulletin board was placed there before Christmas.

            Brant Hughes, a UPS manager at the Rockford hub, confirmed that Mori had been instructed to remove a sticker from his locker around the middle of January.  Hughes stated that he had never seen Mori distribute campaign literature, but Hughes often sees campaign literature on the floor of the facility in work areas.  Janitorial staff are instructed to dispose of any such literature found.

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 exception to the prohibition on campaigning during work hours for “[c]ampaigning incidental to work” recognizes that some activity that literally fits the definition of “campaign activity” inevitably occurs in members’ everyday interactions on the job.  Rosas, 2001 EAD 200 (February 27, 2001) (“The Rules recognize that as employees engage in normal personal interaction while they work, campaigning should not be excluded from what they may talk about.”).  In assessing whether campaign activity is incidental, we look to whether the activity interfered with employees performing their regular work or caused employees to deviate from prescribed duties.  Pinder, 2006 ESD 133 (March 7, 2006) (campaigning found to be incidental where UPS driver distributed flyers to 2 others while loading truck and encouraged them to vote; conduct did not interfere with duties, and all drivers left terminal on time.)  We also consider the duration of the campaigning incident; brief or transient matters are more likely to be held incidental to work.  Pinder (less than 5 minutes); Thompson, 2001 ESD 332 (April 30, 2001), aff'd, 01 EAM 73 (May 24, 2001) (one-on-one campaign exchange that took place while both employees worked together to set a trailer hitch held incidental); Cooper, 2005 ESD 8 (September 2, 2005) (exchange lasting 10 seconds found to be incidental); Gibbs, 2010 ESD 54 (December 9, 2010) (asking for and receiving a campaign postcard held incidental campaigning where exchange took a few seconds); and Joyce, 2011 ESD 111 (February 14, 2011) (brief comment while employee was on her way to lunch was incidental).

Here, we find that one employee’s leaving campaign material on a co-employee’s work desk at their mutual worksite, in an area where there is no interaction with members of the public, fits the description of “incidental” campaigning which does not violate the Rules.  Absent additional evidence, a working employee distributing the material would do so while performing and without deviating from work functions; the working employee finding the material would either pick up the card for later review or glance at it during working hours, neither act causing a deviation from work duties.  This brevity of campaign activity is not violative of the Rules.  Gibbs, supra.

Mori’s campaign activity in the break room is permitted by the Rules because he was not working at the times he discussed the campaign or provided literature to members in the break area, and the employees who received the campaign literature in the break room were also on break and not working.  Campaigning in non-work areas on non-work time is permitted.  Teamsters United, 2015 ESD 39 (October 15, 2015).

Finally, the complaint about the campaign cards on the bulletin board was not timely filed.  The campaign cards were placed on the bulletin board before Christmas and were removed within a day or two.  The protestor learned of these cards on January 12 but waited until January 19 to file this protest.  The Rules require that protests be filed within two working days of the day the protestor becomes aware of the violation.  Rules, Article XIII, Section 2(b).  Because this allegation was made seven days after the protestor became aware it, it is untimely.

For the reasons stated, 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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2016 ESD 119

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