Brown, 2021 ESD 142

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: STEVEN BROWN,                         )           Protest Decision 2021 ESD 142

                                                                        )           Issued: September 17, 2021

Protestor.                                           )           OES Case No. P-162-072221-NA

____________________________________)

Steven Brown, member of Local Union 325, 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 the Teamster Power slate and certain candidates for International office on that slate violated the Rules by campaigning in work areas to employees who were working.

Election Supervisor representative Jeffrey Ellison investigated this protest.

Findings of Fact and Analysis

            Campaign activity directed to employees on work status is prohibited. Hoffa-Hall 2016, 2015 ESD 6 (July 7, 2015); Berg & Corrigan, 2001 EAD 267 (March 26, 2001), aff’d, 01 EAM 61 (April 23, 2001); Green & Baughman, 2021 ESD 69 (March 4, 2021), aff’d, 2021 EAM 14 (March 15, 2021).   Campaigning to members while they are behind the wheels of their trucks, on employer-paid time, driving into and out of the facility as part of their jobs, violates the Rules.

            The protest in this case alleged that activity depicted on Teamster Power Facebook posts showed that campaigning occurred in violation of these principles.  We discuss each allegation separately.

Campaigning for Gesualdi.  Tom Gesualdi is a candidate for IBT vice president for the East region on the Teamster Power slate.  A Facebook post made on or about July 20, 2021, included two photos.  The first depicted 5 men posed under a highway underpass.  Several held campaign signs.  Parked behind the men were multiple personal and construction vehicles; parked in front was a motorcycle.  The photographer told our investigator that the photo was taken before the 7 a.m. start of shift on July 20 in an area under the Van Wyck Expressway in Queens NY.  Digital properties of the photo corroborate the evidence the photographer provided.  The area depicted in the photo is used by the employer to store construction vehicles when not in use and by employees to park their personal vehicles while working.  Because the area serves in part as employer-provided parking for employees, campaigning in the space is regulated by Article VII, Section 12(e), which permits campaigning to members in employer-provided parking lots during times when the members are not working.  The photo of the men under the highway underpass was taken on non-work time in the parking area for employee vehicles.  As such, it does not does not depict a Rules violation.

The second photo showed three men on an approach to the Manhattan Bridge in Manhattan NY.  They posed in their safety vests and hard hats and were holding campaign signs.  The person responsible for the photo appeared in the photo.  He told our investigator that he and the other men were on their lunch break from maintenance work they were performing on the neighboring Williamsburg Bridge.  They traveled to the location seen in the photo to have their lunch.  The person responsible for the photo stated that the area is open to the public and provides beautiful views of lower Manhattan, Chinatown, and the East River.  According to the witness, another person unassociated with the group was having lunch at the same location and agreed to the witness’s request to take their photo.  Investigation showed that the area depicted in the photo is not public, contrary to the witness’s statement.  The area serves as a staging ground for bridge construction and maintenance crews and for law enforcement vehicles policing bridge traffic.  Signage restricts the area to authorized personnel and prohibits U-turns by the public.  A public sidewalk leading from the arch and colonnade at the bridge entrance ends before reaching the area.  An 8-foot barrier separates the sidewalk end from the area where the photo was taken.  We find, therefore, that the men depicted in the photo gained access to the area where the photo was taken by virtue of their employment.  We further find that the area was a work area when work was being performed and a break area when the employees were on break.  The evidence provided us was that the men were on their lunch break when the photo was taken.  There is no contrary evidence.  Therefore, we find that the photo does not depict a Rules violation because of evidence it was taken on non-work time in a hybrid work/break area.

Campaigning for Simmons-Peterson.  Debra Simmons-Peterson is a candidate for IBT vice president at large on the Teamster Power slate.  Posts to a campaign Facebook page included photos depicting campaign activity on a public street outside a UPS hub on South Jefferson Street, Chicago IL.  The employees there are members of Local Union 705.  One such photo showed a hostler driving a UPS truck on a public street.  The photo shows that the driver was flagged down by a campaigner, who handed him a campaign flyer.  This activity violates the Rules and falls squarely within the holding of Green & Baughman, supra, where campaigners who handed flyers to truck drivers engaged in their employer-paid driving function were found to have violated the Rules.

Campaigning for Rabinowitz.  Jason Rabinowitz is a candidate for IBT vice president for the West region on the Teamster Power slate.  Posts shared to Rabinowitz’s Facebook page from the page of Brian Indelicato included 3 photos Indelicato took at the Coca-Cola plant in San Leandro.  The employees there are members of Local Union 896; Indelicato serves as president (non-principal officer) of the local union and business agent for the plant.  The first photo shows 2 employees posed with a campaign sign.  The photo was taken in a break area of the plant, and the employees appear to be on break.  This photo does not depict a Rules violation.

            The second and third photos show employees in production and warehousing areas of the plant.  Both photos depict employees posed in front of a forklift that is positioned in front of ceiling-high pallets of Coke products.  One photo shows an employee in the driver’s seat of the forklift; the other shows 4 employees standing in front of the forklift.  Indelicato told our investigator that the employees in these photos were on breaktime.  We do not credit this statement.  The photos depict working employees who have been paused by their business agent, handed a campaign placard, and then arranged for photos.  Such activity violates the Rules because the employees are interrupted from their work in order to engage in campaign activity.

            Accordingly, we GRANT the protest with respect to the hostler photo associated with Simmons-Peterson and the photos on the shop floor at Coke San Leandro associated with Rabinowitz.  We DENY the protest with respect to the Van Wyck expressway and Manhattan Bridge.

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 Debra Simmons-Peterson and Brian Indelicato to cease and desist from campaigning to employees who are on employer-paid time and not on break.  We caution these candidates that they are prohibited from pausing employees from their work in order to engage them in campaign activity. 

            We order Teamster Power and its candidates to remove from all campaign and personal Facebook pages the photos this decision finds violated the Rules.  We further order Teamster Power and its candidates to cease and desist from posting to their campaign and personal social media accounts photos that depict campaigning to or by employees who are on employer-paid time and not on break.  This cease-and-desist order requires that Teamster Power and its candidates scrutinize their social media accounts and remove photos that depict campaigning to or by employees who are on employer-paid time and not on break.

            We order Local Union 896 to post the remedial notice titled “notice to teamster members employed at coke san leandro” on all union bulletin boards at the Coke San Leandro facility no later than Tuesday, September 21, 2021, and maintain that posting through November 15, 2021.  We order Local Union 705 to post the remedial notice titled “notice to teamster members employed at ups chicago heights” on all union bulletin boards at the UPS Chicago Heights facility no later than Tuesday, September 21, 2021, and maintain that posting through November 15, 2021.  These notices are strictly remedial in nature and are intended to inform the members employed there of the requirements of the Rules and that the Rules were violated.

            We order Local Union 896 and Local Union 705 to submit declarations of compliance with the notice-posting orders to OES no later than Wednesday, September 22Heights, 2021.

A remedial order of the Election Supervisor is immediately effective, unless stayed.  Lopez, 96 EAM 73 (February 13, 1996).

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 142

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

Steven Brown

Stvbrn975@gmail.com

Teamsters Local Union 896

phil@local896.com

Teamsters Local Union 705

Jcampos12@att.net

Peter Marks

pmarks@ibtvote.org

Bill Broberg

wbroberg@ibtvote.org

Joe Childers

jchilders@ibtvote.org

Deborah Schaaf

dschaaf@ibtvote.org

Jeffrey Ellison

EllisonEsq@gmail.com