Hoffa-Hall 2016, 2015 ESD 6

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: HOFFA-HALL 2016,                        )           Protest Decision 2015 ESD 6

                                                                        )           Issued: July 7, 2015

            Protestor.                                           )           OES Case No. P-008-062615-NE     

____________________________________)

            Hoffa-Hall 2016, a slate of candidates for International office, 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 a circulator of accreditation petitions for Teamsters United violated the Rules by circulating petitions in the workplace on employer-paid time and at a grievance panel meeting.

            Election Supervisor representative Peter Marks investigated this protest.

Findings of Fact

            The protest alleged that, on June 25, 2015, a supporter of candidates who oppose the protestor’s slate circulated a slate accreditation petition to members on employer-paid time in work areas.  The protest further alleged that the petition was circulated among participants in a meeting being conducted to prepare for a union grievance hearing at Rhode Island Hospital. 

Investigation showed that Brooke Reeves, a member of Local Union 251 and a union steward employed by the hospital, circulated the petition among members who were eating their lunches in the employer’s cafeteria.  Both Reeves and the lunching members were on break time in a non-work area when the signature solicitation occurred.

            Also present in the cafeteria was Gary DiSilva, another union steward employed by the hospital.  DiSilva and a grievant were meeting to prepare for a second step hearing scheduled to occur on the grievant’s grievance that day at noon.  DiSilva and the grievant began their meeting at about 11:45 a.m. to make final preparations before going into the grievance meeting with management.  Such grievance-prep meetings on hospital grounds are conducted on employer-paid time; the grievant was expressly instructed by her supervisor not to punch out for the meeting.

            Shortly after DiSilva and the grievant began their grievance-prep meeting, Reeves sat down at their table, produced the accreditation petition, and asked them both to sign.  Reeves knew DiSilva was a union steward.  According to DiSilva, papers related to the grievance were spread out on the table when Reeves sat down.  After Reeves made the solicitation, DiSilva signed the petition.  The grievant did not sign, stating that she needed to think about it; Reeves replied, “no problem” and got up and left.  The interruption did not take long, perhaps three minutes or less.  When Reeves left the table, DiSilva continued with the grievance prep meeting.

            No allegation is made that the grievant was coerced into signing (indeed, she did not sign) or that DiSilva altered his advocacy on her behalf based on her demurral at signing.

            Reeves, a union steward, was familiar with the type of meeting DiSilva was conducting with the grievant, having conducted similar meetings herself.  Nonetheless, she told our investigator she assumed DiSilva and the grievant were on break when she approached them, just as the other members lunching in the cafeteria were.  She did not inquire as to whether they were on break when she approached them, however.

            No evidence was presented or found that a petition was circulated in a grievance panel meeting.

Analysis

            The Rules protect the right of members to engage in campaign activity, including the right to campaign on break or lunch time in non-work areas of the employer’s premises.  Article VII, Section 12(a) (“[C]ampaigning during paid vacation, paid lunch hours or breaks, or similar paid time off” does not violate the Rules); see DePietro, 2010 ESD 52 (December 8, 2010); Kozubowski, 2010 ESD 61 (December 22, 2010); Martinez, 2011 ESD 134 (February 23, 2011); and Gibbs, 2010 ESD 54 (December 9, 2010).  Circulation of accreditation petitions is campaign activity protected by the Rules because it promotes the candidacies of members seeking union office.  McPherson et al, 2000 EAD 33 at p. 8 (October 6, 2000); Thornsberry, 2000 EAD 48 (November 17, 2000), aff’d, 00 EAM 12 (December 12, 2000).

            While the Rules protect the right to campaign, they generally prohibit campaigning directed to employees who are on work status.  Berg & Corrigan, 2001 EAD 267 (March 26, 2001), aff’d, 01 EAM 61 (April 23, 2001).  Further, the Rules generally prohibit campaign activity during union meetings, absent advance written notice to all candidates of the opportunity to campaign.  Article VII, Section 5.  Campaign solicitation during a meeting between a grievant and a union representative while involved in the grievance process is prohibited because of the potential for coercion.  Thornsberry, supra.

            Reeves violated the Rules by soliciting accreditation petition signatures from DiSilva and the grievant with whom he was meeting in the hospital cafeteria because the solicitation intruded on the steward’s preparation session with the grievant in advance of the grievance meeting with management.  Reeves should have recognized that DiSilva and the grievant were conducting union business and refrained from approaching them.  If she could not recognize their activity from a distance, she should have asked DiSilva and the grievant whether they were on break before she requested their signatures.  Absent such a question from her, DiSilva could have protected the meeting from campaign intrusion by telling Reeves that he was engaged in a union meeting at the time and that she should not approach them. 

            Other than the intrusion on DiSilva’s grievance preparation session, there is no evidence that Reeves’ solicitation of signatures among other members in the cafeteria during the lunch period on June 25 was improper.  As noted, the Rules specifically allow for such campaign activity during lunch periods.  Article VII, Section 12(a). 

Remedy

When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.”  Article XIII, Section 4.  In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.  “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.”  Hailstone & Martinez, 10 EAM 7 (September 14, 2010).

We order the following remedy:

(1)  Reeves and Teamsters United shall cease and desist from circulating accreditation petitions among members engaged in grievance-prep meetings.

(2)  Teamsters United shall recover the petition steward DiSilva signed on June 25, strike his name and signature from it, and submit a copy of that petition to the Office of the Election Supervisor within seven (7) days of issuance of this decision.  DiSilva remains free to sign or not sign any other accreditation petition, either for Teamsters United or any other candidate or slate.  We order the relief stated here to emphasize that the solicitation that occurred in this case violated the Rules.  Should any other signatures appear on the petition that contains DiSilva’s signature, Teamsters United may submit the petition and have the signatures on that page that are valid count toward accreditation of Teamsters United candidates.

As in Certain Accreditation Petitions, 2015 ESD 2 (June 23, 2015), we do not order a notice posting or distribution here, finding that distribution of this decision to the parties involved is sufficient to correct the violation found.

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

            2015 ESD 6  

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