May 9, 1996
VIA UPS OVERNIGHT
Chris Mihalow, et al.
May 9, 1996
Page 1
Chris Mihalow
11726 Bogardus Avenue
Whittier, CA 90604
Ned Hines
10421 Courson Street
Stanton, CA 90680
Wes Eckert
559 Glover Avenue, Unit D
Chula Vista, CA 91910
Bruno Franco
7713 Ramona Avenue
Rancho Cucamonga, CA 91730
Jeff Witherill
17605 Enadra Way
Van Nuys, CA 91406
Scott Schreiner
7937 Via Latina
Burbank, CA 91584
Raul Lopez, Secretary-Treasurer
Teamsters Local Union 396
880 Oak Park Road, Suite 200
Covina, CA 91724
Bob Corral, Vice President
Teamsters Local Union 396
880 Oak Park Road, Suite 200
Covina, CA 91724
Joe Grosser
United Parcel Service
16000 Arminta Street
Van Nuys, CA 91406
Tony Curry
United Parcel Service
16000 Arminta Street
Van Nuys, CA 91406
Manny Juarez
United Parcel Service
16000 Arminta Street
Van Nuys, CA 91406
Steve Dong
United Parcel Service
16000 Arminta Street
Van Nuys, CA 91406
Martin Wald
Schnader, Harrison, Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Chris Mihalow, et al.
May 9, 1996
Page 1
Re: Election Office Case Nos. P-382-LU396-CLA
P-615-LU396-CLA
P-647- LU396-CLA
Chris Mihalow, et al.
May 9, 1996
Page 1
Gentlepersons:
Various members of Local Union 396 filed pre-election protests pursuant to
Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”). The Election Officer deferred the protests for post-election review pursuant to her authority under the Rules, Article XIV, Section 2(f)(2).
Regional Coordinator Dolly M. Gee and Adjunct Regional Coordinator Michael Four investigated the protests.
1. The Allegations of Retaliatory Exclusion from Meetings: P-382-LU396-CLA
In P-382-LU396-CLA, Chris Mihalow, Ned Hines and Wes Eckert, candidates on the Members Voice slate, allege that Raul Lopez, secretary-treasurer of Local Union 966 and candidate for delegate on the Raul Lopez slate, excluded them from initiation class meetings for new members of the local union. They claim that the exclusion is retaliation for their political opposition to Raul Lopez and other local union officers, in violation of Article VIII, Section 11(f) of the Rules.
Article XIV, Section 2(b) requires protesters to file “within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested.” The short time limits are designed to ensure that alleged violations of the Rules are quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy if a violation is found.
The first of the meetings from which the protesters were allegedly excluded was on September 10, 1995; the most recent was on January 10, 1996. The protest was filed
January 24, 1996. The protesters first knew of the alleged violations more than four months before the protest was filed. This far exceeds the time limits of the Rules.
The protest in P-382-LU396-CLA is untimely, and is therefore DENIED.
2. The Allegations of Retaliatory Discipline in P-615-LU396-CLA
In P-615-LU396-CLA, Jeffrey Witherill and Danny Bruno, candidates for delegate on the Members Choice slate, allege that Mr. Witherill was terminated by United Parcel Service (“UPS”) for campaigning on a request day (“R day”) off, for which he had gotten advance permission. UPS discharged the protester for dishonesty, asserting that Mr. Witherill had received the day off by claiming to be unable to work, but his supervisors later discovered he used the day for campaigning. Mr. Witherill contends that the stated reason for his discharge was a pretext, and that UPS management disciplined him for campaigning because it supported the Raul Lopez slate and opposed his candidacy on the Members Choice slate. Finally, the protesters allege that Bob Corral, a local union officer and candidate for delegate on the
Raul Lopez slate, was aware of the discipline pending against Mr. Witherill, but took no action to alert Mr. Witherill until Mr. Witherill was discharged and a grievance was filed.
Chris Mihalow, et al.
May 9, 1996
Page 1
UPS local managers Joe Grosser, Manuel Juarez and Tony Curry contend that
Mr. Witherill was discharged solely for dishonesty. The local union officers deny that they had any advance notice of Mr. Witherill’s termination.
The Election Officer views allegations of retaliatory discipline for the exercise of rights protected by the Rules very seriously, and examines the evidence in such cases closely and carefully.
In this case, the critical facts are disputed. According to Mr. Witherill, on
February 13, 1996, he asked Mr. Curry, manager for the Granada Distribution Center, to use an R day on February 23. His request was granted without any conditions. Mr. Witherill’s name was recorded on the center calendar as being absent with leave on that date.
On Wednesday, February 21, Mr. Grosser, the West Los Angeles District Division Manager, instructed Manual Juarez (who was acting as Mr. Curry’s replacement while
Mr. Curry was on vacation) that there would be no R days the rest of the week due to staffing shortages. Mr. Juarez did not advise Mr. Witherill of this directly, but erased his name from the calendar for the 23rd.
On February 22, after seeing that his name had been erased from the calendar,
Mr. Witherill questioned Mr. Juarez to ask why. Mr. Juarez told him that because of staff shortages, his R day had been rescinded. Mr. Witherill objected, claiming that he had been promised the day off. According to Mr. Witherill, Mr. Juarez then told him that he would see whether a driver could be obtained from another center and that Mr. Witherill should call in the next morning at reporting time.
On February 23 at around 8:00 a.m., Mr. Witherill telephoned Mr. Juarez and repeated his request for a day off. He states Mr. Juarez stated, “if you can’t make it, you can’t make it.” He admittedly campaigned that day at a UPS work site.
Mr Witherill states that when he got his paycheck, he noticed that UPS had listed him on sick leave on February 23. He questioned Mr. Curry about this, stating to him that he had not requested sick leave. Mr. Witherill contends that Mr. Curry told him that he would look into the matter and get back to him, but never did. On March 4, Scott Schreiner, a local union member and candidate on the Members Choice slate, told Mr. Witherill that he had been interviewed by Mr. Grosser about Mr. Witherill’s activities on February 23. Mr. Witherill then went to Mr. Grosser to speak to him and was informed about the investigation. He was not terminated until March 8.
Chris Mihalow, et al.
May 9, 1996
Page 1
According to UPS, Mr. Witherill received permission for an R day from Mr. McCurry on February 23 on the condition that there were no staffing problems on that day. According to Mr. Juarez, on February 22 he told Mr. Witherill that staffing shortages had developed and that he would have to report for work the following day. He denies that he told Mr. Witherill that he would attempt to obtain a replacement. According to Mr. Juarez, when Mr. Witherill telephoned on February 23, he told him they were short-handed and that Mr. Witherill had to report to work. Mr. Juarez reports that Mr. Witherill then claimed that he had been up all night with his sick wife and would be unable to report for work. Since he was concerned about Mr. Witherill operating a vehicle when he had been awake all night, he told him “if you can’t make it, you can’t make it,” and recorded him as on “sick leave.”
Mr. Grosser stated that he was advised that Mr. Witherill had been campaigning in front of the distribution center where he worked at 2:00 a.m. on February 23, and at another distribution center later that day. Since Mr. Witherill was listed on sick leave that day,
Mr. Grosser began an investigation. During the investigation, two employees confirmed that Mr. Juarez had instructed Mr. Witherill on February 22 to report to work the next day. When Mr. Grosser verified that Mr. Witherill was campaigning on February 23, when he claimed to be on sick leave, Mr. Grosser terminated Mr. Witherill for dishonesty.
Mr. Witherill claims that during the UPS investigation, Mr. Grosser asked employee John Coyne if Mr. Witherill supported Raul Lopez (the lead candidate on the rival Raul Lopez slate). According to the protesters, this question demonstrates that UPS was interested in and supported the Raul Lopez slate, and, therefore, that Mr. Grosser took advantage of a “misunderstanding” between Messrs. Witherill and Juarez to terminate Mr. Witherill.
Mr. Grosser denies speaking with Mr. Coyne. Despite attempts by the Election Officer’s representative to interview Mr. Coyne through Mr. Witherill, Mr. Coyne never contacted the investigator.
Mr. Witherill also claims in his protest that a local union officer, Mr. Corral, had prior notice of Mr. Witherill’s termination. Both Mr. Grosser and Mr. Corral credibly deny that there was any communication between UPS and the local union about Mr. Witherill before UPS took its formal action on March 8.
Mr. Witherill filed a grievance, which, at Mr. Witherill’s request, was handled by another local union officer, Raul Lopez. At the grievance meeting on March 21, the company and Mr. Witherill agreed to reduce the discipline from termination to a seven-day suspension without pay. Mr. Witherill then signed a statement “tak[ing] full responsibility for his miscommunication” on February 23.
The results of the Election Officer’s investigation do not support Mr. Witherill’s contentions about UPS or Mr. Grosser’s support of the Raul Lopez slate or that there was any contact between UPS managers and local union officers before Mr. Witherill was terminated. The local union processed Mr. Witherill’s grievance promptly.
The issue for decision, then, is whether Mr. Witherill was disciplined for dishonesty or for campaign-related conduct protected by the Rules.
Chris Mihalow, et al.
May 9, 1996
Page 1
The evidence before the Election Officer leads to the conclusion that UPS terminated Mr. Witherill for dishonesty rather than for his campaign activities. Several factors support the conclusion that UPS did not act under pretext. First, the UPS investigation focussed on the improper use of sick leave for February 23, rather than on the fact that Mr. Witherill was campaigning that day. Second, as part of his investigation Mr. Grosser obtained statements from two employees who confirmed that on February 22, Mr. Juarez told Mr. Witherill to report to work the next day. Third, Mr. Witherill admitted to the Election Officer’s representative that Mr. Juarez may have misunderstood him during their telephone conversation on February 23. Finally, dishonesty is one of the offenses which are grounds for immediate termination under the collective bargaining agreement between UPS and Local Union 396. Moreover, there is a consistent record at UPS of discharge for employee dishonesty, including cases involving time off under false pretenses. The Election Officer will not find retaliation if she concludes that the charged party would have taken the same action even in the absence of the protester’s protected conduct. Gilmartin, P-032-LU245-PNJ (January 5, 1996), aff’d, 95 - Elec. App. - 75 (KC) (February 6, 1996). See Leal, P-051-IBT-CSF (October 3, 1995), aff’d, 95 - Elec. App. - 30 (KC) (October 30, 1995).
Based upon the foregoing, the protest in P-615-LU396-CLA is DENIED.
3. The Allegations of Retaliatory Harassment: P-647-LU396-CLA
In P-647-LU396-CLA, Scott Schreiner alleges that he was harassed for discussing
Mr. Witherill’s termination and otherwise exercising rights protected by the Rules. UPS asserts that it was even-handedly applying a long-standing rule against solicitation, and that Mr. Schreiner was neither disciplined nor harassed.
On March 11 and 12, in a work area outside the UPS processing center where he works, Mr. Schreiner had a series of conversations with other UPS employees about
Mr. Witherill’s termination. On March 12, Steve Dong, Mr. Schreiner’s supervisor, reminded him of the UPS “No Solicitation Rule” which provides, in pertinent part, as follows:
1. No employee shall solicit or promote support for any cause or organizaiton during his or her working time or during the working time of the employee or employees at whom such activity is directed.
2. No employee shall distribute or circulate any written or printed material in work areas at any time, or during his or her working time or during the working time of the employee or employees at whom such activity is directed.
3. For purposes of this rule, “Working Time” does not include meal-time or break-time.
4. No employee shall enter or remain in the building and other work areas for any purpose except to report for, be present during, or conclude his or her shift.
Chris Mihalow, et al.
May 9, 1996
Page 1
Mr. Schreiner is a driver at the UPS Toluca Center. On March 11, District Manager Joe Grosser observed Mr. Schreiner speaking with a group of employees inside the UPS Granada Center before work began. When Mr. Grosser contacted Granada Center Manager Tony Curry about his observation, Mr. Curry told Mr. Grosser that Mr. Schreiner was talking to the employees about Mr. Witherill’s termination and told these employees that Mr. Grosser was out to get Mr. Schreiner. Upon learning of this, Mr. Grosser determined it was necessary to review the no-solicitation rule with Mr. Schreiner and to impress upon him that
Mr. Witherill’s termination was not politically motivated and no one was out to get
Mr. Schreiner. During the investigation, Mr. Grosser credibly stated that he was concerned that Mr. Schreiner was violating the no-solicitation rule by talking to employees in another distribution center.
At Mr. Grosser’s direction, on March 12, Steve Dong, Mr. Schreiner’s immediate supervisor at the Toluca Center spoke to Mr. Schreiner about the no-solicitation rule. The next morning, Granada Center Manager Curry, spoke to Mr. Schreiner about the no- solicitation rule and assured Mr. Schreiner that Mr. Witherill’s termination was not politically motivated. On March 14, Mr. Grosser also spoke to Mr. Schreiner to alleviate any concern’s Mr. Schreiner harbored that Mr. Grosser was out to get him. During this conversation,
Mr. Grosser assured Mr. Schreiner that if he wanted to speak with employees outside of the building or in the lunch area, this was permitted.
In the context presented here, the Election Officer finds that the reminder to
Mr. Schreiner of the no-solicitation rule, is not a violation of the Rules. Rather, it appears that the UPS officials made efforts to assure Mr. Schreiner that he might properly exercise his campaign rights in nonworking areas while employees are on nonworking time.
Based upon the foregoing, the protest is DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Chris Mihalow, et al.
May 9, 1996
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Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Dolly M. Gee, Regional Coordinator
Michael Four, Adjunct Regional Coordinator