Marchetta, 2016 ESD 222

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: KURT MARCHETTA,                  )           Protest Decision 2016 ESD 222

                                                                        )           Issued: May 25, 2016

            Protestor.                                           )           OES Case No. P-192-020216-FW     

____________________________________)                                                                  

Kurt Marchetta, member of Local Union 542 and candidate for delegate, 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 candidates on the slate that Marchetta’s slate opposed campaigned on time paid for by the union, in violation of the Rules.

Election Supervisor representative Margaret Sheridan investigated this protest.

Findings of Fact and Analysis

            Local Union 542 is entitled to elect nine delegates and three alternate delegates to the IBT convention.  At the local union’s nominations meeting held January 21, 2016, fourteen candidates for the nine delegate seats were nominated.[1]   Ballots in the delegates election were mailed February 22 and counted March 15, 2016. 

            The protest alleged that on February 22, 2016, protestor Marchetta observed local union president Phil Farias, a delegate candidate, and business agent Paul Samson campaigning in support of the slate Marchetta opposed at the UPS San Diego hub, distributing flyers to Teamster members employed there.  Marchetta told our investigator that he spoke with Farias and asked how it was that Farias was able to campaign that day.  Farias replied that he was on vacation and would not make an obvious mistake to campaign on work time in violation of the Rules.  Marchetta, who clocked off his early morning shift at 9 a.m., then went home and called the union hall to ask whether business agent Samson was working that day.  According to Marchetta, the reply the office clerical gave confirmed that Samson was working but that he was not available at that time to take Marchetta’s call.  Some twenty minutes later, at 10:10 a.m., Marchetta called the union hall a second time to ask if president Farias was on vacation.  According to Marchetta, the call was placed on hold and then Farias picked up the line.  Marchetta told our investigator that Farias said, “I already told you I was on vacation.  Is my word not good enough?  Are you calling me a liar?”  Marchetta replied to Farias that he was confused by Farias’s actions, first because Farias told him at the worksite that he was on vacation and then because Farias was taking calls in the union hall.  Farias replied that he was on a half-day vacation and would take the rest of the time when he wanted to do so.

            Later that day, Marchetta campaigned at the UPS Chula Vista facility and observed local union secretary-treasurer Jaime Vasquez and local union trustee Ivan Murillo, delegate candidates both, campaigning there as well.  Marchetta did not question them about whether they were on vacation, but he surmised that they were present at the Chula Vista facility in the morning as well because drivers told him they had received campaign material from that slate in the morning.

            Marchetta told our investigator further that he received information that local union recording secretary and business agent Dwayne Garrett was seen campaigning at the San Marcos facility on the morning of February 22.

            Marchetta asserted that the campaign he observed and learned of violated the Rules because the campaigners were on union-paid time.

            Article VII, Section 12(b) declares that campaigning by union officials and employees “must not involve the expenditure of Union funds.”  However, “campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is … not a violation of this section.”

            Investigation showed that Farias, Samson, Vasquez, and Garrett used vacation time paid by the union to campaign on February 22.  Each of these individuals prepared written requests for paid vacation on local union forms used for that purpose, each request being dated February 18 or 19 and requesting vacation time to be used on February 22.  Vasquez and Garrett requested and were granted one full vacation day.  Farias and Samson used one-half vacation day; investigation showed these individuals campaigned early on the day of February 22 and performed their work duties during the balance of the day.  Accordingly, we find that all four of these persons campaigned without violating Article VII, Section 12(b) of the Rules.

Murillo, although a union official, worked full-time for UPS.  His campaign activity is thus governed by Article VII, Section 12(a), which provides in part that “[n]o … member may campaign during his/her working hours. … [C]ampaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is … not a violation of this section.”  Pay records from UPS showed that Murillo requested and was granted February 22 as a “personal option day” (also referred to as a floating holiday), a paid day off not charged to vacation time.

For these reasons, we find that the campaign activity in which Farias, Samson, Vasquez, Garrett, and Murillo engaged on February 22 did not violate the Rules.  Accordingly, we DENY this protest.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within three (3) 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 222

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):