IN RE: SAM ROSAS,
Protest Decision 2001 EAD 200
Issued: February 27, 2001
OEA Case No. PR020811WE
Sam Rosas, vice president, business representative and delegate candidate of Local 439, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). Rosas alleges that Ruben Moreno campaigned during work hours and made false statements about Rosas.
Election Administrator representative Dolly Gee investigated the protest.
Findings of Fact
Moreno, a Local 439 member and sergeant-at-arms, has worked for the Martin-Brower Company for eighteen years. He is currently a lead man who coordinates shifts. For about two days around February 6 through 8, 2001, Moreno solicited signatures in support of the Hoffa Rank and File slate.
As a lead man, Moreno's work hours do not necessarily coincide with other employees' hours. Moreno's hours appear to be around 5:00 a.m. to 1:30 p.m., but they can vary widely. A company incentive program allows employees to receive twelve hours of pay for less than twelve hours of work if the employees accelerate their work pace. In addition, Moreno often arrives at work by 4:00 a.m. and can leave as late as 2:30 or 3:00 p.m. He has no set break time. Management allows him to take breaks at his discretion. Therefore, it is difficult for fellow employees to determine whether Moreno is on break.
Moreno asserts that he campaigned solely during breaks. Our investigator found only one witness who offered evidence that Moreno campaigned while working. David Radkey, a Local 439 shop steward, was taking a break from contract negotiations when he saw Moreno trying to wrap his refrigerator pallet. He and Moreno began talking. A short time later, Moreno asked Radkey to endorse one of the slates for the delegate election. No one other than Radkey provided evidence that Moreno campaigned during work time. Martin-Brower's human resources manager, Jack Dickson, had no evidence that Moreno had campaigned on work time. Weighing all the evidence, we find that Moreno did not campaign on work time.
Although Moreno did not campaign during his work hours, we find that he solicited signatures from other employees during their work hours. Moreno did not inquire whether fellow employees were on break before speaking with them. Moreno approached warehouseman Sal Munoz while he was loading a truck and asked him to sign an endorsement. Munoz declined and drove away. Another warehouseman, John Vancourt, stated that Moreno interrupted Vancourt's work by asking him for a signature.
Neither Rosas nor any witness provided evidence that Moreno made false accusations about Rosas. We, therefore, find that Moreno did not make such statements.
Analysis
The Rules prohibit members from campaigning during their working hours but permit campaigning during breaks. Article VII, Section 11(a). Campaigning incidental to work is also permitted. Id. The Rules recognize that as employees engage in normal personal interaction while they work, campaigning should not be excluded from what they may talk about.
Rosas has provided insufficient evidence for us to find that Moreno campaigned during work time. Furthermore, we find that Moreno's campaigning and consequent interference with other members' work was "limited in time and, thus, incidental to his normal work duties." Kaiser, P056 (December 12, 1990). Moreno was interacting normally with his co-employees.
Finally, Rosas has offered no evidence of Moreno's alleged false accusations. Moreover, such accusations, even if true, generally would not violate the Rules.
For the foregoing reasons, we DENY the protest.
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 Administrator 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:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street NW, Tenth Floor, Washington, DC 20005, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2001 EAD 200
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Sam Rosas
IBT Local 439
1531 East Fremont St.
Stockton, CA 95205
Ruben Moreno
1974 Gerber Dr.
Stockton, CA 95209
Dolly Gee
Schwartz, Steinsapir, Dohrmann & Sommers
6300 Wilshire Blvd., Suite 2000
Los Angeles, CA 90048
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116