Mele, 2021 ESD 132
OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: ROBERT MELE, ) Protest Decision 2021 ESD 132
) Issued: July 20, 2021
Protestor. ) OES Case No. P-154-062121-SO
____________________________________)
Robert Mele, member and principal officer of Local Union 988 and candidate for IBT South region vice-president on the Teamster Power slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that local union members Raul Gonzalez and Sean Brown violated the Rules by campaigning on work time.
Election Supervisor representative Dolores Hall investigated this protest.
Findings of Fact and Analysis
Respondents Raul Gonzalez and Sean Brown are employed by YRC, Gonzalez as a dock worker, Brown as a delivery driver. On June 18, 2021, Gonzalez, who works from 4 a.m. to 12:30 p.m., took his morning 15-minute paid break sitting in his car in the employer’s parking lot. He saw Brown walking to his own car in the lot to retrieve his sunglasses before commencing his delivery route. Gonzalez texted Brown to ask if he wanted a campaign sticker and poster for the O'Brien-Zuckerman 2021. Brown responded in the affirmative and walked past Gonzalez’s car, picked up the items, and proceeded to his vehicle, where he left the items when he picked up his sunglasses. Brown then went on the road to do his deliveries; Gonzalez completed his break and returned to the dock. The exchange between Gonzalez and Brown was the only campaign activity either engaged in at YRC that day.
Gonzalez’s conduct was protected by the Rules, which grant each member the right to participate in campaign activities, provided that he/she does not do so during working hours. Article VII, Section 12(a). Break time, even when paid by the employer, does not constitute “working hours” within the meaning of the Rule. Id.
YRC’s own written policy affirmed Gonzalez’s right to campaign during break time. The policy, titled Distribution of Literature and Solicitation / Teamsters International Union Delegate and Officers Election, states that “Employers may prohibit employees from distributing union campaign literature during working time and in working areas. However, employees must be permitted to distribute campaign materials during non-working time, but such distribution may be restricted to non-working areas.” The policy gives examples of “non-working time” as “before and after shifts, [and] during breaks.”
The Rules also protected Brown, who received the campaign materials from Gonzalez. Brown’s mission at that moment was to retrieve his sunglasses, which he needed in order to perform his assigned route safely. Receipt of the materials from Gonzalez did not cause Brown to deviate from his mission or delay its completion, and it was therefore covered by Rules provision of the Rules protecting “[c]ampaigning incidental to work.” Id; see also Myers, 2016 ESD 119 (February 25, 2016) (In assessing whether campaign activity is incidental, one looks to the absence of evidence that an employee failed to perform work, deviated from prescribed duties, or interfered with another employee’s work. Grossman, P476 (March 6, 1996); Jones, P100 (December 20, 1990), aff’d, 90 EAM 26 (December 28, 1990); Joseph, 2006 ESD 114 (February 17, 2006); Pinder, 2006 ESD 133 (March 7, 2006); Joyce, 2011 ESD 111 (February 14, 2011); Martinez, 2011 ESD 134 (February 23, 2011); Ziemba, 2011 ESD 172 (March 21, 2011). One also looks to the brevity of the campaigning. Kaiser, P56 (December 12, 1990); Galvan, 2015 ESD 47 (November 2, 2015).
Despite the fact that Gonzalez’s delivery of the campaign materials to Brown was expressly protected both by the Rules and YRC’s written policy, YRC manager Daron Cathey issued a warning letter to Gonzalez on June 25, 2021. The warning accused Gonzalez of “campaigning for a Union election while on the clock and while on the Company’s property.” The warning noted Gonzalez’s defense that he was on break, a fact Cathey conceded while declaring it irrelevant. The warning made no reference either to the Rules or to YRC’s written policy permitting campaigning in the parking lot while on break. Under the collective bargaining agreement between YRC and the IBT, “[a]ll warning notices issued by the Employer shall be deemed automatically protested by the Local Union on behalf of the employee. Warning letters will be held in abeyance until and when subsequent discipline is issued. The warning notice as herein provided shall not remain in effect for a period of more than six (6) months from the date of said warning notice.” Protestor Mele told our investigator that, by practice under the foregoing language, the merits of the warning letter could be contested in the grievance procedure only if subsequent disciplinary action was issued against the member within 6 months of the date of the warning letter. Absent such further disciplinary action, the member who received the warning letter was required to work with a strike against his record.
YRC took no action against Brown, the recipient of the campaign material.
Chris Solis, local union business agent assigned to YRC, told our investigator that Cathey called him to tell him that Gonzalez and Brown were campaigning in the parking lot on company time. Solis stated that he contacted Reginald Below, rank-and-file YRC member who previously served as steward at the facility to find out what had happened. According to Solis, Below told him that Cathey accused Gonzalez and Brown of campaigning on the clock. To our investigator, Below denied categorically that Solis contacted him. Below stated further he knew nothing about the alleged incident and had not witnessed any campaigning.
Solis also told our investigator that he called Gonzalez about Cathey’s accusation, and Gonzalez stated that he was on break. Solis told our investigator that, in his view, Gonzalez could not campaign anywhere on employer premises while on break because his break was paid by the employer. Our investigator corrected this misstatement of permissible conduct, pointing out that the Rules and even the employer’s written policy permit campaigning on break time. Solis replied that he did not know “anything about that.”
In contrast to Solis’s incorrect view that members could not campaign on paid breaktime anywhere on employer premises, protestor Mele told our investigator he believed an employee could permissibly campaign on paid break only in the breakroom and that Gonzalez had violated the Rules by campaigning while on break in his car in the parking lot. Our investigator informed Mele that the Rules do not bar breaktime campaigning in the parking lot and instructed him to review the Rules for verification of this information.
According to Gonzalez, Cathey told him that “someone from the union hall” he did not identify called Cathey and threatened “to file charges against him,” Cathey, if Cathey did not issue the warning letter to Gonzalez. Cathey told Gonzalez to “watch his back” because if he “got crossways” with Cathey, Gonzalez could not count on the union to defend him.
We DENY Mele’s protest because Gonzalez’s campaign activity on paid breaktime in the employer’s parking lot was protected under the Rules and YRC’s written policy and because Brown’s receipt of the campaign material was protected as incidental to work.
We further find that YRC’s issuance of the warning letter to Gonzalez violated the Rules as retaliation for Gonzalez’s protected activity in campaigning in the parking lot on paid breaktime. We order YRC to rescind the warning letter and remove it from Gonzalez’s personnel record. We further order YRC to inform OES in writing no later than Monday, July 26, 2021, that it has rescinded and removed the warning letter.
We further find that YRC’s action in issuing the warning letter to Gonzalez was abetted and not averted by Mele’s and Solis’s ignorance that the Rules protect campaigning on breaktime. We direct Mele and Solis to study the Rules’ requirements. We will not hesitate to use the Rules’ remedial authority to reinforce this directive, if either demonstrates further ignorance of the Rules.
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. Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i). All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Barbara Jones
Election Appeals Master
IBTappealsmaster@bracewell.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, all within the time prescribed above. Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Barbara Jones
2021 ESD 132
DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
braymond@teamster.org
Edward Gleason
egleason@gleasonlawdc.com
Patrick Szymanski
szymanskip@me.com
Will Bloom
wbloom@dsgchicago.com
Tom Geoghegan
tgeoghegan@dsgchicago.com
Rob Colone
rmcolone@hotmail.com
Barbara Harvey
blmharvey@sbcglobal.net
Fred Zuckerman
fredzuckerman@aol.com
Ken Paff
Teamsters for a Democratic Union
ken@tdu.org
Scott Jenkins
scott@oz2021.com
Robert Mele
rbtmele@sbcglobal.net
Raul Gonzalez
Gonzalez714@msn.com
Sean Brown
Seanbrown300@gmail.com
Teamsters Local Union 988
rmele@teamster988.org
YRC Freight
Daron Cathey
David Cooper
david.cooper@yrcw.com
Patrice Brown
patrice.brown@yrcw.com
Paula Day
paula.day@yrcw.com
Dolores Hall
dhall@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com