Protest Decisions

              July 31, 1996

VIA UPS OVERNIGHT

Danny Bruno

July 31, 1996

Page 1

Danny Bruno

7713 Ramona Avenue

Rancho Cucamonga, CA 91730

Kirk Tanioka

United Parcel Service

3000 E. Washington Boulevard

Los Angeles, CA 90023

Leroy Stapley

United Parcel Service

3000 E. Washington Boulevard

Los Angeles, CA 90023

Felicia Tripp

United Parcel Service

3000 E. Washington Boulevard

Los Angeles, CA 90023

Mary Skulski

2646 Doolittle Street

Arcadia, CA 91006

Bob Kikuchi, President

Teamsters Local Union 396

880 Oak Park Road, Suite 200

Covina, CA 91724

Martin Wald

Schnader, Harrison, Segal & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Danny Bruno

July 31, 1996

Page 1

Re:  Election Office Case No.              P-740-LU396-CLA, DECISION ON REMAND

Gentlepersons:

Danny Bruno

July 31, 1996

Page 1

Danny Bruno, a member of Local Union 396, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).  The protester alleged that the United Parcel Service (“UPS” or “the employer”) and Local Union 396 agreed to reduce the seniority of Mary Skulski, also a member of Local Union 396, in order to retaliate against her because she supported a slate of delegates that was opposed by the officers of Local Union 396.  The protester further alleged that Local Union 396 President Bob Kikuchi retaliated against Ms. Skulski because of her political activities by threatening a steward that he could lose his job if he pursued

Ms. Skulski’s grievance.

The Election Officer issued her decision in this matter on June 6, 1996.  In her decision, she found that the allegation that UPS and the local union agreed to reduce

Ms. Skulski’s seniority was not timely filed.  She further found that Mr. Kikuchi had not threatened a shop steward in connection with his involvement in a grievance filed on behalf of Ms. Skulski.  On June 17, 1996, the Election Appeals Master heard an appeal of the Election Officer’s decision.

In In Re: Danny Bruno, 96 - Elec. App. - 202 (KC) (June 12, 1996), the Election Appeals Master concluded that the Election Officer had erred by refusing to review, on the basis of untimeliness, the merits of the retaliation claim involving the reduction of

Ms. Skulski’s seniority.  Further, the Appeals Master reversed the decision of the Election Officer with respect to the claim that Mr. Kikuchi had retaliated against Ms. Skulski by threatening her shop steward, and remanded this portion of the protest for consideration as to an appropriate remedy. 

Regional Coordinator Dolly M. Gee and Adjunct Regional Coordinator Michael D. Four investigated the protest on remand.

1.  Alleged Retaliatory Reduction of Ms. Skulski’s Seniority

The protester alleges that UPS and Local Union 396 agreed to reduce Ms. Skulski’s seniority because she supported the Members’ Choice slate of delegate candidates in the Local Union 396 delegate election held on March 14, 1996.

The seniority referred to in the protest is Mary Skulski’s “distribution center” seniority.  UPS performs certain work in distribution centers, one or more of which is located at a “hub.”  Pursuant to the collective bargaining agreement between UPS and the local union, UPS workers earn company seniority, referring to an employee’s length of service at UPS, and distribution center seniority, meaning continuous service within an employee’s classification in the distribution center where she is domiciled.  Company seniority generally determines eligibility for fringe benefits.  Distribution center seniority is used by full-time employees to select their vacation, and determines the employee’s priority in selecting her route.  If a preloader has greater distribution center seniority than another preloader, she has priority in selecting her route.

Ms. Skulski presently works as a part-time preloader at the Wilshire distribution center at the Soto Street hub.  Prior to February 1995, Ms. Skulski worked in the Santa Monica distribution center at the Soto Street hub.  In February 1995, UPS moved its Santa Monica distribution center from the Soto Street hub to the Olympic Boulevard hub.  At the same time, UPS moved its Wilshire distribution center from the Olympic Boulevard hub to the Soto Street hub.

Danny Bruno

July 31, 1996

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The collective bargaining agreement between UPS and the union includes two provisions concerning the effect of a closure of a distribution center on the employee’s distribution center seniority.  Article 38(2) of the agreement pertains to a “partial closure” of a distribution center.  This provision reads:

Whenever a center or hub is partially closed and the work of the package drivers and all other regular employees, part-time and full-time, excluding feeder drivers, is transferred to or absorbed by another center, the affected employees may either follow their work and have their seniority dovetailed in the new center or be allowed to exercise their seniority in their present center and displace the least senior employee in their respective classifications.  If any of the employees whose work is transferred elects not to follow his/her work, then he or she shall have the same rights as the remaining employees on the seniority list from which the work was transferred to bid the work being transferred.  Those employees who follow the work shall have their seniority dovetailed in the new center.

Article 38(1) pertains to a “full closure” of a distribution center.  This provision reads:

Whenever a center is closed and the work is transferred to or absorbed by another center, the affected employees will be entitled to follow their work and their seniority dovetailed at the new center.

UPS contends that if all of the packages formerly handled by a center are handled elsewhere after the move, then the move constitutes a “full closure” for those employee classifications in which all employees are asked to move.  UPS considers the closure of a distribution center to be a full closure even if the hub itself remains open, as long as the packages formerly handled by the distribution center are no longer handled at the hub.  In the case of the closure of the Santa Monica center, since all Santa Monica packages are now being delivered out of the Olympic Boulevard hub and none of the Santa Monica work remains at the Soto Street hub, UPS contends that there was a full closure of the Santa Monica distribution center with respect to the part-time preloaders and drivers at the Santa Monica distribution center.  All of these employees, including Ms. Skulski, were asked to move to Olympic Boulevard in February 1995.

The parties to the collective bargaining agreement agree that the foregoing interpretation of the contract distinguishing between a “full” and “partial” closure has been

Danny Bruno

July 31, 1996

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consistently applied in previous transfers of a distribution center or hub.[1]  Further, the parties to the agreement interpret Article 38(1) to provide that in the event of a full closure of a distribution center, the employee may “follow her work” to the hub where the work has been moved, in which case she retains the distribution center seniority she earned prior to the move.  After she moves, her seniority is dovetailed with the seniority of the employees who work at the hub to which she moves.  If an employee elects not to follow her work to a different hub, then she loses the seniority that she has earned at her former distribution center and begins to earn distribution center seniority at what constitutes a new distribution center at her old location.

When UPS closed the Santa Monica distribution center, Ms. Skulski elected to remain at the Soto Street hub, instead of “following her work” to the Olympic Boulevard hub.  UPS and the local union contend that since the move of the Santa Monica distribution center was a full closure with respect to the part-time preloaders, Ms. Skulski lost the distribution center seniority that she had accumulated at the Santa Monica distribution center when she elected not to follow her work.  Since in February 1995, after the closure of the Santa Monica center,

Ms. Skulski remained the most senior part-time preloader at the Wilshire distribution center, her work assignment did not change.

However, in March 1996, Ms. Skulski lost her route.  In February 1996, UPS merged its Hollywood distribution center into the Wilshire distribution center at the Soto Street hub.  As part of the February 1996 change in operations, Miguel Rodriguez, a part-time preloader, moved from the Hollywood distribution center to the Wilshire distribution center at the Soto Street hub and claimed Ms. Skulski’s route.  When UPS failed to award Ms. Skulski’s route to Mr. Rodriguez, the union filed a grievance on his behalf.  Ultimately, UPS agreed with the union’s grievance and gave the route to Mr. Rodriguez.

As of February 1996, Ms. Skulski had one year of distribution center seniority, because she lost her distribution center seniority when she refused to follow her work in February 1995.  Mr. Rodriguez brought with him six years of distribution center seniority when he moved to the Soto Street hub.  UPS and the local union agreed that Mr. Rodriguez’s greater distribution center seniority gave him the right to select his route before Ms. Skulski. The closure of the Hollywood distribution center, from which Mr. Rodriguez moved to the Soto Street hub, was considered a full closure with respect to the part-time preloaders at the Hollywood distribution center.  Pursuant to the collective bargaining agreement,

Danny Bruno

July 31, 1996

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Mr. Rodriguez elected to follow his work to the Soto Street hub, thereby retaining the distribution center seniority he had earned at the Hollywood distribution center.

The Rules at Article VIII, Section 11(f) prohibit “[r]etaliation or threat of retaliation by  . . . any subordinate body, . . . any employer or other person or entity against a Union member, . . . for exercising any right guaranteed” under the Rules.  To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the decision or the conduct in dispute.  Thus, the protester must show that UPS and the local union agreed to reduce Ms. Skulski’s seniority because of her support of the Members’ Choice slate of delegates.  The Election Officer will not find retaliation if she concludes that the employer and the union would have taken the same action even in the absence of the protected conduct.  See Gilmartin, et al., P-032-LU245-PNJ, et seq. (January 5, 1996), Leal, P-051-IBT-CSF (October 3, 1995), aff’d, 95 - Elec. App. - 30 (KC) (October 30, 1995); Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995).  Cf., Wright Line, 251 NLRB 1083 (1980), enforced, 662 F. 2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982). 

The protester claims that the rationale stated by UPS for its determination that

Ms. Skulski lacked the seniority to retain her route in February 1996 is a pretext for the employer’s intent to discriminate against her because she opposed the leadership of Local Union 396 in the delegate elections.  There is no direct evidence that any supervisor at UPS knew of Ms. Skulski’s views on the local union officers.  However, the protester argues that because Ms. Skulski has been outspoken in her criticism of the administration of Local

Union 396 Secretary-Treasurer Raul Lopez, UPS must have known her opposition to his candidacy for delegate.  He also states that, on a few occasions, Ms. Skulski wore a shirt supporting Mr. Lopez inside-out.  Alternatively, he argues that UPS was willing to abide by the direction of the local union in its treatment of Ms. Skulski.  UPS Division Manager

Kirk Tanioka works at the Soto Street hub and made the protested decision on behalf of the employer.  Mr. Tanioka denies any knowledge of Ms. Skulski’s views on the leadership of Local Union 396.  Further, he states that the decision to award Ms. Skulski’s route to

Mr. Rodriguez was made in consultation with UPS Division Labor Manager John Pirozzi, without any input from the local union.

While the Election Officer recognizes that Ms. Skulski had been vocal in her opposition to Mr. Lopez, there is no direct evidence that UPS knew of Ms. Skulski’s opinions on the delegate election contest and there is insufficient circumstantial evidence to impute such knowledge to the employer.  The Election Officer further finds that UPS did not merely accede to a request by the local union to deprive Ms. Skulski of her route.  UPS and the local union have credibly articulated independent bases for the conclusion that the collective bargaining agreement required that Ms. Skulski’s route be awarded to Mr. Rodriguez.

Danny Bruno

July 31, 1996

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The protester claims that the union’s agreement that Ms. Skulski lost her route in February 1996 was based on Ms. Skulski’s electoral preference in the delegate election rather than a reasonable interpretation of the collective bargaining agreement.  The local union denies knowledge of her views.  There is no direct evidence that the local union leadership knew of her electoral preference.  Ms. Skulski and the protester contend that reports on Ms. Skulski’s criticism of Mr. Lopez, a candidate for delegate, and her wearing an inside-out Lopez T-shirt may have reached the local union leadership through business agents, shop stewards or employees, including the son-in-law of the local union president, who worked at the same location as she did.  While the evidence of knowledge by the local union of protected activity on the part of Ms. Skulski is minimal, the Election Officer finds it sufficient to proceed to the final element of the retaliation analysis:  whether the union would have agreed with the interpretation of the contract asserted by UPS in response to the grievance of Mr. Rodriguez, even in the absence of her protected conduct.

The protester claims that the February 1995 transfer of the Santa Monica center was not a “full closure,” but was a “partial closure.”  The protester maintains that if anyone stays at a hub after a distribution center is moved from a hub, the closure of the distribution center is a partial closure.  The protester argues that the transfer of the Santa Monica center was a partial closure, because after the transfer, nine employees from the Santa Monica distribution center, in addition to Ms. Skulski, remained at the Soto Street hub.[2]

UPS and the union maintain that while employees in some classifications at the Santa Monica distribution center were not asked to move from the Soto Street hub, the closure of the Santa Monica distribution center was a full closure with respect to the part-time preloaders and the drivers because all of the Santa Monica distribution center work left the Soto Street hub and all part-time preloaders and drivers at the Santa Monica distribution center were asked to move from the Soto Street hub.  The parties to the agreement further contend that both part-time preloaders from the Santa Monica distribution center who elected to remain at the Soto Street hub, including Ms. Skulski, lost their distribution center seniority when they elected not to follow their work to the Olympic hub.

The protester claims that the interpretation of the collective bargaining agreement applied by the parties to the competing claims of Mr. Rodriguez and Ms. Skulski is inconsistent with past practice.  He relies on two instances to support his characterization of the February 1995 closure of the Santa Monica distribution center as a partial, rather than a full, closure.  He refers first to a situation arising in 1984 or 1985, when UPS moved the Glendale center from the Soto Street hub to the San Fernando Valley hub.  The protester also relies on the transfer, in about 1990, of the Foothill center from the San Gabriel hub to the Ontario hub.  The protester asserts that in both of these instances, UPS moved a distribution center and allowed employees to remain in their center and retain their seniority.

Danny Bruno

July 31, 1996

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The union responds with facts demonstrating that the moves of the Glendale and Foothill centers were distinguishable from the move of the Santa Monica center because the first two moves were partial closures.  Prior to moving to the San Fernando Valley hub, the Glendale distribution center had been combined with the University distribution center at the Soto Street hub.  The transfer of the Glendale center to the San Fernando Valley hub was a partial closure because only a portion of the work of the combined center was moved.  The union further states that the transfer of the Foothill center was a partial closure because when it closed, UPS transferred work involving some, but not all, of the zip codes previously included in the Foothill center.  The protester presents no facts supporting his view that the closure of the Santa Monica center, where Ms. Skulski worked, was a partial closure similar to the closures he cites.

Accordingly, the Election Officer finds that the interpretation of the collective bargaining agreement relied upon by UPS and the local union here is not an unreasonable one and establishes a legitimate, non-election-related basis for the protested action of the parties.  Chentnik, P-112-LU579-NCE (August 22, 1995), aff’d, 95 - Elec. App. - 13 (KC)

(September 20, 1995).  The unsupported allegation by the protester that the parties have permitted employees to remain at their location in the event of a full closure and to retain their full distribution center seniority is insufficient to demonstrate pretext.  Moreover, Ms. Skulski advised the Adjunct Regional Coordinator that she had no evidence that the removal of her route was retaliatory.  The Election Officer concludes, on the basis of all of the evidence, that there is no basis for finding that UPS and the local union retaliated against Ms. Skulski by awarding her route to Mr. Rodriguez.  Rather, this decision was made by UPS, and subsequently endorsed by the local union, as a result of a good-faith interpretation of the applicable collective bargaining agreement.

The lack of a retaliatory motive by the union to Ms. Skulski is further evidenced by the fact that it is pursuing a grievance on behalf of Ms. Skulski concerning the award of her route to Mr. Rodriguez.  After Mr. Rodriguez was awarded Ms. Skulski’s route, she complained that in February 1995 she had not been advised that if she stayed at the Soto Street hub, she would lose her distribution center seniority.  The union filed a grievance over Ms. Skulski’s reduction in seniority, contending that UPS did not comply with the contractual requirement that it give her prior written notice, in February 1995, of the closure of her distribution center and the conditions of her continued employment.[3]

Danny Bruno

July 31, 1996

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Based upon a consideration of the evidence in this case, the Election Officer does not find that the reduction of Ms. Skulski’s seniority was in retaliation for the exercise of a right protected under the Rules.  Therefore, the protest, insofar as it alleges retaliation by UPS and the union, is DENIED.

2.  Remedy for the Threat by the Local Union 396 President

The protester also alleged a claim against Local Union 396 President Bob Kikuchi.  The protester alleged that Mr. Kikuchi threatened Bob Magaña, a shop steward, warning him not to involve himself in Ms. Skulski’s grievance.  The protester alleges that Mr. Kikuchi threatened Mr. Magaña in order to retaliate against Ms. Skulski because she supported the Members’ Choice slate of delegates.  Pursuant to the decision of the Election Appeals Master, the protest, insofar as it alleges retaliation against Ms. Skulski by Mr. Kikuchi, is GRANTED.

The Election Appeals Master has directed that the Election Officer determine an appropriate remedy for the violation of the Rules by Mr. Kikuchi.  The Election Officer finds that the appropriate remedy in this case is one that will assure the membership and the stewards of their right to engage in political activity without being subjected to retaliation from the officers of their local union.

Therefore, to remedy the threat by Mr. Kikuchi to Mr. Magaña, the Election Officer orders the following:

1.  Mr. Kikuchi shall cease and desist from retaliating against any member because of their support for a candidate in the delegate election.

2.  Within seven (7) days of the date of this decision, Mr. Kikuchi shall post for thirty (30) consecutive days on all union bulletin boards, the Notice to Local Union 396 Members attached hereto.  Within seven (7) days of the date of this decision, Mr. Kikuchi shall mail to all shop stewards the Notice to Local Union 396 Shop Stewards also appended hereto.  Within two (2) days of mailing the notice, Mr. Kikuchi is directed to submit to the Election Officer a signed affidavit describing his compliance with the Election Officer’s mailing order and posting orders.

An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules.  In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1966).             

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:

Danny Bruno

July 31, 1996

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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

Dolly M. Gee, Regional Coordinator

Michael D. Four, Adjunct Regional Coordinator

              NOTICE TO ALL LOCAL UNION 396 MEMBERS

The Election Officer has determined that I violated the Election Rules governing the delegate and International officer elections by retaliating against a union member because of her support of a slate of candidates for delegate of this local union.

No one, including local union officers, business agents, delegate, stewards or employees, may threaten, coerce, harass or otherwise retaliate or take any other adverse action against you because of your support of a particular candidate, or your lack of support of a candidate.

Any attempt by a Local Union 396 officer, delegate, steward, employee or member to interfere or retaliate against you because of your political activity in connection with the delegate election should be immediately reported to Barbara Zack Quindel, Election Officer, IBT, at her Washington, D.C. office.  All such reports shall be immediately investigated and appropriate and remedial action taken.

____________________________

Bob Kikuchi, President

Teamsters Local Union 398

This is an official notice which must remain posted for 30 consecutive days and must not be defaced or altered in any manner or be covered with any other material.

Approved by Barbara Zack Quindel, IBT Election Officer.

              NOTICE TO ALL LOCAL UNION 396 SHOP STEWARDS

The Election Officer has determined that I violated the Election Rules governing the delegate and International officer elections by retaliating against a union member because of her support for a candidate for delegate of this local union.  The Election Officer found that I threatened the steward who supported a grievance filed on behalf of this member in order to retaliate against the member because of her support of the candidate.

I will not threaten, coerce, harass or otherwise retaliate or take any other adverse action against you, or a steward who represents you, because of your support of a particular candidate.

Any attempt by a Local Union 398 officer, delegate, steward, employee or member to interfere or retaliate against you because of your political activity in connection with the delegate election, or the activity of a member whom you represent, should be immediately reported to Barbara Zack Quindel, Election Officer, IBT, at her Washington, D.C. office.  All such reports shall be immediately investigated and appropriate and remedial action taken.

____________________________

Bob Kikuchi, President

Teamsters Local Union 398

Approved by Barbara Zack Quindel, IBT Election Officer.

Re:              Election Office Case No. P-740-LU396-CLA

DECISION ON REMAND

CORRECTION

Gentlepersons:

During the hearing before the Election Appeals Master on August 8, 1996, Local

Union 396 President Bob Kikuchi pointed out that the notices attached to the Election Officer’s decision dated July 31, 1996, incorrectly identified the local union underneath Mr. Kikuchi’s signature as Local Union 398, rather than Local Union 396. 

The Election Officer is attaching corrected notices.  Mr. Kikuchi is directed to replace the prior notice which has been posted with the attached notice.  If Mr. Kikuchi has not yet mailed

the “Notice to all Local Union 396 Shop Stewards,” he should sign and mail the attached notice instead.  If Mr. Kikuchi has sent the notice, he need not resend the attached notice to the stewards.

Sincerely,

Benetta Mansfield

Chief, Protest Division

cc:              Kenneth Conboy, Election Appeals Master

Dolly M. Gee, Regional Coordinator

Michael D. Four, Adjunct Regional Coordinato