April 4, 1996
VIA UPS OVERNIGHT
Pete George
212 Sedgefield Lane
Danville, VA 24541
Wayne Gibbs
2715 Reid
Winston-Salem, NC 27107
Re: Election Office Case No. P-490-LU391-SEC
Gentlemen:
A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) by Pete George, a member of Local Union 391 and candidate for delegate on the Working Teamsters for Reform slate (“Working Teamsters”). Mr. George alleges that Shop Steward Wayne Gibbs violated the Rules by campaigning against Working Teamsters and for the Team 391 slate (“Team 391”), the other slate in the Local Union 391 delegate election, while on work time. The Election Officer deferred the protest for consideration post-election, pursuant to Article XIV, Section 2(f)(2) of the Rules.
This protest was investigated by Regional Coordinator J. Griffin Morgan.
On February 19, 1996, from approximately 2:30 p.m. to 3:40 p.m., Mr. George and other supporters of Working Teamsters passed out campaign literature in the employee parking lot of Burns Aerospace. They passed out leaflets to second shift workers as they arrived and first shift workers as they left.
Pete George
April 4, 1996
Page 1
Mr. Gibbs observed the campaigners intermittently prior to the end of his shift. At approximately 3:30 p.m., Mr. Gibbs came out of the facility, stood inside the fence separating the parking lot from the plant, and made statements to passing members against the Working Teamsters campaigners, such as: “Don't take that shit”; “These are Carey candidates”; “Ask them about the scabs on their slate”; and “They're going to raise your dues.” Mr. George contends that Mr. Gibbs engaged in campaigning for five or 10 minutes while he was on work time, in violation of the Rules.
Local Union 391 was entitled to elect 10 delegates and 10 alternate delegates. Ballots had been mailed on February 12, 1996, and they were counted on March 5. On the ballot were two full slates--Working Teamsters and Team 391--as well as two independent candidates for delegate and two independent candidates for alternate delegate. All of the Team 391 candidates were elected.
The Election Office records show that 3,154 valid ballots were counted. Eighty-three ballots were void and 159 were challenged. The challenges were left unresolved because the number was too small to affect any of the election results. The ranking of candidates was as follows:
Delegates
Rank Name Vote Slate or Independent
1 Jack Cipriani 2,496 Team 391
2 Leonard W. Reeder 2,436 Team 391
3 Claude Gray 2,433 Team 391
4 Steve Bishop, Jr. 2,411 Team 391
5 Judy Cockman 2,409 Team 391
6 Doug Norris 2,405 Team 391
7 Franklin Howard 2,378 Team 391
8/9 Steve Deal 2,375 Team 391
8/9 Doug Vick 2,375 Team 391
10 Fred Crouse 2,359 Team 391
11 Tommy Burke 661 Working Teamsters
12 Lee White 658 Working Teamsters
13 Peggy Southard 651 Working Teamsters
14 Rowland G. McNair 650 Working Teamsters
15 Carl H. Rice 649 Working Teamsters
16 James R. Sawyers 626 Working Teamsters
17 Sammy Braswell 625 Working Teamsters
18 Shelby McStoots 616 Working Teamsters
19 Paul Cudd 609 Working Teamsters
20 Pete A. George III 608 Working Teamsters
21/22 Randy Alan Adams 121 Independent
21/22 Otto Schrader 121 Independent
Pete George
April 4, 1996
Page 1
Alternate Delegates
Rank Name Vote Slate or Independent
1 Vicky Wright 2,407 Team 391
2 Vernon Gammon 2,400 Team 391
3 Mike McGaha 2,397 Team 391
4 Ricky Long 2,378 Team 391
5 Bobby Taylor 2,375 Team 391
6 Herman L. Volpe 2,373 Team 391
7 Courtney H. Forsyth 2,359 Team 391
8 Chris L. Plemmons 2,357 Team 391
9 George W. Gilmore 2,355 Team 391
10 Larry Hauser 2,337 Team 391
11 Larry Tucker 670 Working Teamsters
12 Barry Sawyers 655 Working Teamsters
13 Billy Carter 643 Working Teamsters
14/15 Leonard Faircloth 638 Working Teamsters
14/15 Ron S. Perry 638 Working Teamsters
16 Turner O. Wiley 634 Working Teamsters
17 John W. Paschal 630 Working Teamsters
18 Roy Horton 629 Working Teamsters
19 Dewey Shropshire 619 Working Teamsters
20 Wilburd Peoples 614 Working Teamsters
21 Tony M. Scott 170 Independent
22 Bernard Wallace 124 Independent
Article VIII, Section 11(a) of the Rules provides, in pertinent part:
All Union members retain the right to participate in campaign activities, including the right to . . . support or oppose any candidate . . . No candidate or member may campaign during his/her working hours. Campaigning incidental to work is not, however, violative or this section.
Mr. Gibbs admits leaving the Burns Aerospace facility on February 19, standing inside the fence by the parking lot, and making the statements alleged by Mr. George. Mr. Gibbs states that he stayed there for about five minutes. His statements were clearly campaigning, under the section quoted above, because they were made in opposition to Mr. George and his supporters. Furthermore, the statements were not incidental to Mr. Gibbs’ work.
Pete George
April 4, 1996
Page 1
The Rules protect “incidental” campaigning on work time in order to ensure that as members interact normally during the course of their on-the-job responsibilities, that interaction may include campaigning. It is not the grant of an extra campaign right, but a recognition that election discourse may be part of the normal personal discourse that otherwise takes place at the workplace. See Benson, Post-67-LU104-RMT (April 16, 1991) (“Use of a CB radio [for campaigning] while otherwise working . . . is exactly the type of normal ‘shop talk’ the Rule on incidental campaigning was meant to [cover].”)
In assessing whether campaign activity falls within normal workplace interaction and is, thus, “incidental,” the Election Officer has looked to the absence of evidence that an employee failed to perform work, deviated from prescribed duties, or interfered with another employee’s work. Grossman, P-476-LU284-CLE (March 6, 1996); Raymond, P-434-
LU572-CLA et seq. (March 14, 1996) (incidental to Union business); In Re: McGinnis,
90 - Elec. App. - 29 (January 3, 1991); Jones, P-100-LU886-SOU (December 20, 1990), aff’d, 90 - Elec. App. - 26 (SA) (December 28, 1990). The Election Officer has also looked to employer tolerance of similar personal activity, Grossman; Benson; Halberg, P-403-
LU174-PNW (February 22, 1991); Teller, P-095-LU741-PNW (January 2, 1991), and to the brevity of the campaigning. Newhouse, P-253-LU435-RMT (January 4, 1996) (incidental to Union business); Kaiser, P-056-LU579-NCE (December 12, 1990); Andrade, P-387-
LU526-ENG (February 7, 1991).
Thus, the “incidental” exception does not cover campaign activity distinct in time or place from the employee’s normal work. When Mr. Gibbs left his work in order to campaign at the parking lot fence, that activity could not be considered incidental to his work under the Rules.
Mr. Gibbs argues, however, that he was not on work time. His time card for
February 19 shows that he clocked in at 6:37 a.m. and clocked out at 3:35 p.m., an elapsed time of eight hours and 58 minutes. He contends that he is only paid for eight hours, that his shift was over at 3:30 p.m., and that he was effectively on his own time after that.
The Election Officer finds that Mr. Gibbs began campaigning before 3:30 p.m. According to one of Mr. Gibbs’ witnesses, Rebecca Bailey, she met Mr. Gibbs in their department at the end of their shift, walked to the time clock, and then walked to their cars without stopping. Therefore, Mr. Gibbs’ campaigning at the fence occurred during an excursion from the facility before he met Ms. Bailey. The five minutes between the end of his shift (3:30) and his clocking out (3:35) was not enough time for him to walk out of the facility, campaign at the fence for five minutes, walk back into the facility and his department, meet Ms. Bailey, and walk to the time clock. If Mr. Gibbs campaigned for longer than five minutes, he cut even further into his work time. Hence, Mr. Gibbs violated the Rules by campaigning during his work time. See Kelly, P-600-LU705-CHI et seq. (March 27, 1991) (“Mr. Benesch’s time clock demonstrates that he punched in at 7:53 that morning and was on the clock during the time that he was distributing campaign literature in the parking lot.”)
Pete George
April 4, 1996
Page 1
Having found a violation post-election, it is necessary to determine whether this matter satisfies the requirements of Article XIV, Section 3(b) of the Rules: “[post-election] protests shall only be considered and remedied if the alleged violation may have affected the outcome of the election . . .” Thus, a violation of the Rules alone is not grounds for setting aside an election unless there is a reasonable probability that the outcome of the election may have been affected by the violation. See Wirtz v. Local Union 410, 366 F.2d 438 (2nd Cir. 1966). To determine whether such a potential result is present, the Election Officer determines whether the possible consequences of the violation were sufficient in scope to affect the outcome of the election and whether there is any causal connection between the violation and the result or outcome of the election. Dole v. Mailhandlers, Local 317, 132 L.R.R.M. 2299 (D.C.M.D. Ala. 1989). Since the Election Officer has determined above that the Rules have been violated, the issue then becomes whether said violation affects the outcome of the election.
In this case, the smallest gap between a member who was elected and one who was not is the 1,667 vote margin between Alternate Delegate Candidates Hauser (2,337 votes) and Tucker (670 votes). The Local Union 391 worklist, submitted to the Election Officer in December, 1995, shows 374 employees at Burns Aerospace. Adding that number to the number of unresolved challenged votes (159) yields a maximum potential shift of 533 votes. This number is too small to have had an effect on the outcome of the election. Therefore, the Election Officer finds that there is no cause to order any remedy with respect to the Local Union 391 delegate election.
For the foregoing reasons, 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
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
J. Griffin Morgan, Regional Coordinator