ELECTION APPEALS MASTER
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IN RE KENNY GONZALES,
2015-2016 EAM 38 (KAR) (ESD 358) PROTESTOR.
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Protest Decision 2016 ESD 358 (ESD 358) was issued on December 30, 2016. ESD addressed a protest by Kenny Gonzales, member of Local Union 439, alleging that he was removed from his position as steward in retaliation for activity protected by the Rules.
Decision of the Election Supervisor
The Election Supervisor found the following facts:
Protestor Gonzales is employed by UPS in Stockton, CA. In the several years prior to the filing of this protest, he served as an alternate steward and then steward, being appointed to each position by the local union’s principal officer. The local union membership elected new officers in fall 2014 elections; they assumed office in January 2015. On July 22, 2015, principal officer Ken Guertin notified Mr. Gonzales that he was no longer shop steward effective that date. Gonzales received the notice by mail on July 25; he wrote Mr. Guertin on July 30 and again on August 16 and 31 asking why he was removed. Mr. Guertin did not reply. Mr. Gonzales then filed this protest on August 17, 2015, alleging that he was removed as steward “because I have been participating in the upcoming Delegate Election.”
The nominations meeting for Local Union 439’s delegates and alternate delegates election was conducted on February 17, 2016, nearly seven months after Gonzales was removed as steward. However, Mr. Gonzales and others with whom he eventually formed a slate in the delegates and alternate delegates election began circulating among local union worksites as early as March 2015, speaking with members about the upcoming election and their candidacies in it. Moreover, Mr. Gonzales assisted a member in filing internal union charges against some of the local union’s business agents and executive board members. Further, Mr. Gonzales and others demanded access to the local union’s financial records. Also in March 2015, and after Gonzales and others began circulating at various worksites, Mr. Gonzales first noticed that he was no longer receiving usual reports from the business agent assigned to his facility, Cary Daughters, about grievances pending at his facility. In addition, Mr. Gonzales observed that he was not being included in “center level hearings” concerning grievances he had written and investigated. Having observed these changes in notice and participation, Mr. Gonzales questioned local union administration about the reasons for the changes. He received no reply.
On July 15, 2015, Mr. Gonzales, Reuben Moreno, and Mario Flores, all of whom would eventually form a slate of candidates together in the delegates and alternate delegates election, met at the local union hall with Mr. Daughters to discuss why Mr. Gonzales was being left “out of the loop.” The conversation was moved outside the front door of the hall to avoid being overheard. The discussion among the four men was captured on security video, which recorded moving images but no audio. It showed Mr. Gonzales animatedly speaking with Mr. Daughters. Following this action, Mr. Moreno was seen stepping aggressively toward Mr. Daughters, who responded by taking one step back. Mr. Moreno continued his advance, in an aggressive manner, and threw a punch. Mr. Daughters responded with a punch. Individuals from inside the hall then went outside and stopped the confrontation. Mr. Gonzales was not involved in the physical altercation. No protest was filed concerning the incident.
A week later, on July 22, Mr. Guertin wrote Mr. Gonzales to advise that he was no longer steward at UPS.
Mr. Guertin denied that he removed Mr. Gonzales because of activity associated with the delegates election. He told the OES Investigator that Gonzales was appointed and not elected to his steward position by a previous principal officer, and that the local union bylaws grant the principal officer the right to appoint stewards. Because the bylaws bestowed this appointment authority on the principal officer, the principal officer also possessed the countervailing authority to terminate appointments.
Mr. Guertin cited three reasons for removing Mr. Gonzales. First, he asserted that Mr. Gonzales had interfered with “my guys,” referring to business agents employed by the local union. Second, he claimed UPS had too many stewards, making Mr. Gonzales’s continued service unnecessary. Finally, he stated that he had received “a few complaints” about Mr. Gonzales from members.
The OES Investigator requested Mr. Guertin to present evidence to substantiate these justifications for removing Gonzales. Mr. Guertin did not explain or produce evidence to demonstrate how Mr. Gonzales had interfered with the work of local union business agents. Further, investigation showed that, following the removal of Mr. Gonzales as shop steward, UPS Stockton had more stewards than it had while he was a steward. Finally, despite the request of the OES Investigator, Mr. Guertin did not provide names of members and their contact information to substantiate the complaints Mr. Guertin claimed he received about Mr. Gonzales’s performance as steward.
During the protest investigation, Mr. Guertin stated to the OES Investigator that “they [referring to Mr. Gonzales, Mr. Moreno, and Mr. Flores] want to have a free run to do the things they want to do” without consequences, “just because they’re running” in the delegates election. The Election Supervisor found this statement to be an admission by Mr. Guertin that his removal of Mr. Gonzales was motivated at least in part by Mr. Gonzales’s campaign activity.
The Election Supervisor granted the protest. The Election Supervisor noted that in order to establish a violation of the Rules,
“the evidence must demonstrate that 1) the alleged victim engaged in activity protected by the Rules, 2) the charged party took adverse action against the alleged victim, and 3) the protected activity was a motivating factor in the adverse action.” Bundrant, 2005 ESD 19 at 10 (October 25, 2005), aff’d, 05 EAM 4 (November 15, 2005) (quoting Cooper, 2005 ESD 8 (September 2, 2005). The Election Supervisor will not find retaliation if he concludes that the union officer or entity would have taken the same action even in the absence of the protestor’s protected conduct. Gilmartin, P32 (January 5, 1996), aff’d, 95 EAM 75. See Leal, P51 (October 3, 1995), aff’d, 95 EAM 30; Wsol, P95 (September 20, 1995), aff’d, 95 EAM 17.
With respect to the critical third element, the Election Supervisor found that a principal reason for removing Gonzales as steward was because of his protected activity. First, we conclude that Guertin admitted this motivation during the investigation. Moreover, we find that his stated reasons for the removal do not withstand factual scrutiny. Thus, there is no evidence that Gonzales interfered with business agents’ performance of their duties. Further, Guertin’s statement that Gonzales was removed in order to reduce the number of stewards at UPS was false, as the number increased after his removal. Finally, no evidence was presented or found that members had complained about Gonzales’s performance as steward. Therefore, we find a causal link between Gonzales’s protected activity and Guertin’s removal of him as steward.
With respect to remedy, the Election Supervisor ordered Mr. Guertin to (1) cease and desist from further violations of the Rules, including from prohibited retaliation for protected activity; and (2) reinstate Mr. Gonzales to the position as steward Mr. Gonzales held before Mr. Guertin terminated his position, including reimbursement to Mr. Gonzales the dues he paid that he would not have been required to pay had the dismissal as steward not occurred. The Election Supervisor ordered Local Union 439 to post a notice of the Election Supervisor’s decision on all union worksite bulletin boards.
Appeal of ESD 358
Mr. Guertin filed a timely appeal of ESD 358 on January 4, 2017. The appeal asserts that Mr. Gonzales was terminated because of conflicts with Mr. Daughters “that was making it difficult for Daughters to perform his job. The conflicts that Daughters reported related to Gonzales focusing his efforts on creating unnecessary work for Daughters, and making unreasonable demands. Also, Daughters reported that Gonzales was filing meritless grievances that took away from representing the employees.” Mr. Guertin further states that “evidence of this clear conflict is explicitly discussed in the Decision, as Gonzales came to the Union hall in July 2015, with Moreno and Flores to demand answers on why Gonzales was not being ‘kept in the loop.’ Gonzales was not the chief steward at UPS and this demand clearly evidences the breakdown in their relationship.” Mr. Guertin asserts that “compounding Gonzales’ behavior and likely politically motivated conduct,” when Gonzales came to the Union hall in July 2015 with Moreno and Flores, their disagreement with Daughters resulted in a physical assault of Daughters,” which was reviewed by Mr. Guertin and shown to the OES investigator, who was advised that Mr. Guertin was going to remove Mr. Gonzales as steward “specifically because of that altercation.” Mr. Guertin argues that the fact that Mr. Gonzales and his friends “started a fight with Daughters at the union hall is clearly sufficient evidence of interference and that Guertin’s assessment that Daughters and Gonzales could not work together was reasonable.” Mr. Guertin complains that he expressly told the OES Investigator that Mr. Daughters “had information relevant to this matter,” but that “Daughters, a key witness to all of the matter here, was not interviewed prior to the Decision.”
Mr. Guertin notes that another “appropriate reason” for Mr. Gonzales’s removal “is that Gonzales was a steward for package car drivers and the Union had abundance of stewards for package car drivers * * *. Importantly, Gonzales was not replaced with another steward from package drivers; [the stewards that] were added were from the Feeder division, a division that needed additional stewards.”
With respect to the comment relied upon by the Election Supervisor as an “admission” that the removal of Mr. Gonzales was motivated by his protected political activity, Mr. Guertin asserts that “the full context” negates the Election Supervisor’s finding.
Specifically, Guertin showed the video to the investigator as mentioned above, and explained to her that he was going to release Gonzales from being a steward because of the above-described conduct. When the investigator noted that such a removal may result in Gonzales arguing that he was released because of his desire to run as a delegate, Guertin responded that his removal had nothing to do with him running as a delegate and that just because he was arguably intending to run that should not give him free reign. That is totally appropriate as Gonzales cannot be insulated from his disruptive and inappropriate behavior just because he intended to run as a delegate.”
Finally, Mr. Guertin points out that Gonzales transferred to the new UPS facility at Lathrop. It is Guertin’s understanding that the Union had a steward election there and Gonzales was nominated. He turned down the nomination and chose not to run as a steward. It thus makes no sense to reinstate him as a steward since he’s already been offered that opportunity and turned it down in a new facility.
The Election Appeals Master received written submissions from the Election Supervisor and from Mr. Guertin on January 13, 2017.
Mr. Guertin’s submission includes the declarations of himself and Mr. Daughters, and a letter from Geoff Donnelley, a business agent at the Lathrop facility, “which highlights changed circumstances since the charges were investigated that affect the remedy.” The declarations of Mr. Guertin and Mr. Daughters largely reiterate the information provided in Mr. Guertin’s appeal that is summarized above. The letter from Mr. Donnelley provides additional details regarding the November 2016 steward election at the Lathrop facility.
The Election Supervisor asserts that Mr. Guertin’s appeal should be rejected because he failed to raise his claims or provide supporting information during the protest investigation. According to the Election Supervisor, when Mr. Guertin was asked during the investigation why he removed Gonzales,
Guertin’s only reference to business agents was his claim that Gonzales “interfered” with them, providing no specifics for his claim despite repeated requests. He did not assert the filing of meritless grievances or creating unnecessary work as he now claims in his appellate papers, nor did he produce evidence to support such an assertion. This is sufficient ground for rejecting the argument, as an appellant may not permissibly raise factual issues on appeal that he failed or neglected to present during the protest investigation.
The Election Supervisor also asserts that “in contrast to his claim on appeal,” Mr. Guertin “did not tell our representative that the [July 2015] incident was a reason or the reason for removing Gonzales.”
With respect to the remedy of reinstatement, the Election Supervisor argues that the assertion that Gonzales is not entitled to this remedy because he recently transferred to a new work location and declined to participate in a stewards election held at that facility “relies on evidence that was not presented during the protest investigation; as such it should not be considered here.” In any event, the Election Supervisor asserts that “Guertin’s argument also ignores that he as principal officer retains appointment authority for stewards, and the Election Supervisor’s remedy directing that Gonzales be returned to the position to which he previously had been appointed has the effect of restoring the status quo ante.”
A telephonic hearing was held on January 17, 2017, which was attended by: Jeffrey J. Ellison, Esq.,, on behalf of the Election Supervisor; Deborah Schaaf (OES); Mr. Guertin, Mr. Daughters, Mr. Donnelley; Mr. Gonzales; and Mr. Flores.
Decision of the Election Appeals Master
I note at the outset that this appeal is based in part on evidence that was not presented to the Office of the Election Supervisor. Absent extraordinary circumstances, no party may rely on appeal upon evidence that was not presented to the Office of the Election Supervisor. See Roth, 11 EAM 53 (July 13, 2011). Appellant has offered no justification for his failure to provide information to the OES Investigator regarding what he now asserts were the legitimate reasons for Mr. Gonzales’s removal—which information was requested by the Investigator and which was clearly in his possession at the time of the investigation. I therefore decline to consider evidence offered for the first time on appeal.
With respect to the Election Supervisor’s finding that the removal of Mr. Gonzales was motivated at least in part by Mr. Gonzales’s campaign activity, it is well-established that the standard of review of the Election Supervisor’s factual findings, including his credibility determinations, is abuse of discretion. See, e.g., Taylor & Fabiano, 2011 EAM 34 (April 13, 2011); Eligibility of Swain, 2011 EAM 20 (February 22, 2011); Hailstone & Martinez, 2010 EAM 7 (September 14, 2010). Courts have held that a tribunal abuses its discretion when the facts found are “clearly erroneous.” Arista Records, LLC v. Doe, 604 F.3d 110, 117 (2d Cir. 2010). The OES Investigator was in the best position to understand and evaluate the import of Mr. Guertin’s reference to Mr. Gonzales’s participation in protected campaign activity. In addition, the Election Supervisor’s conclusion is supported by Mr. Guertin’s failure to provide persuasive legitimate reasons for Mr. Gonzales’s removal. I therefore find that the Election Supervisor did not abuse his discretion in determining Mr. Guertin’s statement to the OES Investigator to be an admission that the removal of Mr. Gonzales was motivated at least in part by Mr. Gonzales’s campaign activity.
Similarly, 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), and that the Election Supervisor’s remedy for a Rules violation is reviewed for an abuse of discretion. See, e.g., Gegare, 10 EAM 1 (June 14, 2010) (“The remedy selected by the Election Supervisor will not be disturbed except where there has been an abuse of discretion.”). Based upon the finding that the removal of Mr. Gonzales was motivated at least in part by Mr. Gonzales’s campaign activity, the Election Supervisor’s decision to restore the status quo ante was not an abuse of discretion.
Conclusion
For the foregoing reasons, the appeal of ESD 358 is denied and ESD 358 is AFFIRMED.
SO ORDERED.
/s/____________________________________
KATHLEEN A. ROBERTS
ELECTION APPEALS MASTER
DATED: January 24, 2017