IN RE: JEFF COOPER, Protestor.
Protest Decision 2005 ESD 8
Issued: September 2, 2005
OES Case No. P-05-007-082205-MW
Jeff Cooper, a member and business agent of Local Union 89, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). He alleges that a supporter of the United Rank and File Slate (UR&F slate), a slate of candidates competing for election both to local union office and as IBT convention delegates, campaigned on work time and that, when a business agent of the local reported this activity to the employer, a member of the slate threatened retaliation against the person who provided the information to the business agent. The protestor further alleges that the slate retaliated against a business agent for protest activity and violated campaign contribution and expenditure provisions of the Rules.
Election Supervisor representative Joe F. Childers investigated this protest.
Findings of Fact
The protestor stated that, while attending local negotiations at Boland Moloney Lumber Company on August 18, 2005, Local 89 member Mike Meyer told him that the previous day, UPS driver Chris Roberts, a member of Local 89 and supporter of the United Rank and File Slate (UR&F slate), "trashed" Local 89 leadership over a $75 per day meal allowance and other matters, and retrieved campaign literature from his UPS truck.
The protestor further stated that, later on August 18, he told Local 89 secretary-treasurer John Bolton about the interaction of Meyer and Roberts, and that Bolton passed that story on to business agent Chris Carter. Carter telephoned UPS supervisor Chris Schmitt, told him of the incident and asked that he put a stop to campaigning on work time. That evening, business agent Carter received a telephone call from Darrell Hall, a member of Local 89 and candidate for delegate on the UR&F slate; the protestor stated that Hall repeatedly cursed Carter during the call and said that he would "kick [the] ass" of the person who reported Chris Roberts' activity.
Meyer, the Boland Moloney employee, told our investigator that he has known Roberts for years as the UPS driver assigned to the route that includes Boland Moloney and regards him as a friend. Meyer's account of his August 18 interaction with Roberts differed from the protestor's second-hand report of those same events. According to Meyer, when Roberts arrived at the Boland Moloney dock on August 17, Meyer saw a flyer inside Roberts' UPS truck that criticized the 2001 IBT Convention vote by Local 89 President Fred Zuckerman supporting a $75 per day meal allowance. Meyer told Roberts that Local 89 officials needed such a large allowance because "they are big fellows." Meyer said that the conversation was a joking one lasting "about 10 seconds." According to Meyer, the flyer never came out of Roberts' truck, Roberts did not engage in any campaigning, and no one else was present.
Meyer told our investigator further that he related the incident with Roberts to the protestor the next day. Meyer denied telling the protestor that Roberts had campaigned or had distributed campaign literature. Further, Meyer stated that he told the protestor of the incident merely to joke about the protestor's girth and not to report a campaign violation.
Carter, the business agent who contacted UPS, told our investigator that he was prompted to do so by secretary-treasurer Bolton, who told him late in the afternoon of August 18 that a UPS driver was campaigning on work time and that such activity was illegal. Bolton told Carter he wanted the name of the UPS driver. When Carter learned the driver's identity, he contacted UPS supervisor Schmitt, told him of the incident and asked that he stop the campaigning but not fire the driver.
Later on the evening of August 18, UPS driver Roberts called business agent Carter. Carter told Roberts that "customers had been calling about UPS drivers" and that he, Carter, wanted any campaigning stopped. According to Carter, Roberts was very polite during the call and concerned about his job, denied that he had campaigned on work time, and stated that the exchange with Meyer "was just a conversation between two union men."
Still later that evening, Carter received a message from Darrell Hall, the UR&F slate member. When Carter returned the call, Hall asked him whether he had contacted UPS management about a driver that day. Carter admitted that he had, but said he did so "to keep from getting the driver in serious trouble." Hall then uttered a series of insults, calling Carter a "motherf-cker," a low-life, and a "f-cking jerk," extending the insults to the "union steward" at Boland Moloney (apparently referring to Meyer, who Hall evidently believed was a steward), stating that if he "caught him out," he was "going to kick his ass." Carter denied that Hall threatened him, Carter, stating that he and Hall have "known each other a long time."
Hall told our investigator that he learned on August 18 that Carter had called UPS supervisor Schmitt about the Roberts incident. Hall then called Schmitt directly, who confirmed that Carter had called him about the matter. Schmitt told Hall that Roberts would not be disciplined over the incident but that Roberts was upset and scared about his job. Hall then called Carter and left a message requesting a return call. According to Hall, he and David Thornsberry, candidate for delegate on the UR&F slate, then adjourned to a bar where Hall drank "three or four beers." Carter returned Hall's call while Hall was at the bar, and Hall went outside to hear better. Hall told our investigator he was furious with Carter because Carter had gone to UPS management about the incident rather than file an election protest or call UR&F slate members. Hall admitted cursing Carter, emphasizing to Carter that he "had a problem with" Carter calling UPS management. Carter replied that a "guy at Boland Moloney" had a problem with Hall. Hall responded that "if the [unnamed] guy has a problem with me," Carter should tell the guy to "look me up." Hall told our investigator that he never knew the name of "the guy" at Boland Moloney and never intended to intimidate him.
Following the events of August 17 and 18, the UR&F slate posted an article on its website critical of business agent Carter's action in contacting UPS management. The article, titled "Local 89 UPS Business Agent Files a Complaint with a UPS Manager Against a Union Brother," included a photo of Carter and read in relevant part as follows:
At no time did the UPS driver hand the literature to anyone or campaign. This was a conversation initiated by the Boland Maloney [sic] worker. This worker called Local 89 business agent Jeff Cooper. Somehow Local 89 UPS business agent CHRIS CARTER got a hold of this information and called the UPS center manager to file a complaint against the UPS driver for campaigning on the clock. The UPS driver did not campaign. Now Chris Carter had a few options. He could call Darrell Hall or David Thornsberry to complain, or he could file an election protest with the election administrator in Washington D.C. He chose to call UPS management to get a union brother in trouble. This is unheard of. Even the center manager said that he found it quite odd that a business agent was calling in on a union worker. Fred Zuckerman should FIRE Chris Carter or Chris Carter should resign. Neither has happened. However, the Local 89 spin is being spun. According to Chris Carter, he was trying to save the UPS driver's job. Give us a break Chris. He was never in trouble and was doing nothing wrong. It seems Local 89 employees work harder at keeping their jobs than actually doing the job. You can reach Chris Carter at ccarter@teamsters89.com. Tell him he needs to resign.
Carter reported that he has received one negative email since the article was posted and has heard remarks made by others that characterized his actions in the Roberts incident as "throwing union men under the bus."
The UR&F slate is competing both in October's election for delegates and alternate delegates and December's election of the local union's executive board. The content of its website and campaign literature is directed to both elections. David Thornsberry told our investigator that the slate maintains separate bank accounts for each election and that the delegate election account is funded in accordance with the Rules. Further, Thornsberry states that, although expenses have been incurred, bills for campaign activity including flyers and web software have just been received and will be paid from the delegate campaign account.
On these facts, the protestor alleges Rules violations against the following: 1) Roberts for campaigning on work time, 2) Hall for threatening retaliation and intimidation against Meyer for "engaging in his protected right to protest" Roberts' activity, 3) the UR&F slate for its web posting demanding business agent Carter's discharge, and 4) the slate for commingling campaign expenses for the local officer and delegate elections.
Analysis
Campaigning on work time. Article VII, Section 11(a) states that "[n]o candidate or member may campaign during his/her work hours. Campaigning incidental to work is not, however, violative of this section." The Rules protect "incidental" campaigning on work time to insure that as members interact normally during the course of their on-the-job responsibilities, that interaction may include campaigning. George, P490 (April 4, 1996). See, e.g., Benson, Post 67 (April 16, 1991) ("use of a CB radio [for campaigning] while otherwise working … is exactly the type of normal 'shop talk' the rule on incidental campaigning was meant to [cover].") 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). One also examines employer tolerance of similar personal activity, Halberg, P403 (February 22, 1991), and the length or brevity of the campaigning, Kaiser, P56 (December 12, 1990).
On the facts presented, we need not resolve whether UPS driver Roberts engaged in campaign activity at Boland Moloney on August 17 because, even if he did, such alleged campaigning was incidental to his normal work and therefore not prohibited by the Rules. We find that Meyer initiated the conversation with Roberts about the $75 daily meal allowance, that this exchange was a joking reference about the size of employees and officers of the local, and that this exchange consumed about 10 seconds. The exchange did not divert Roberts or Meyer from their normal work.
Threat of retaliation against Meyer by Hall; retaliation against Carter by UR&F slate. Article XIII, Section 1 prohibits "direct or indirect retaliation or threat of retaliation" against any member who "file[s] a protest with the Election Supervisor alleging noncompliance with these Rules." Article VII, Section 11(g) prohibits "[r]etaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed" by the Rules.
To establish a violation of either of these provisions, the evidence must demonstrate that 1) the alleged victim engaged in activity protected by the rule, 2) the charged party took adverse action against the alleged victim, and 3) the protected activity was a motivating factor in the adverse action.
Here, neither Meyer nor Carter filed an election protest, the activity protected by Article XIII, Section 1. Indeed, the sole protest arising from this incident was filed after the alleged retaliation and threats occurred by a person not a party to any of the conversations or incidents put at issue. Accordingly, the evidence does not establish that Hall's strong language directed at Carter and an unknown "guy" (Meyer), or the UR&F slate's criticism of Carter was in retaliation for Meyer or Hall engaging in activity protected by Article XIII, Section 1. Therefore, we find no violation of that provision.
We also find that Hall's and UR&F slate's response and commentary on Meyer's and Carter's retelling of the August 17 incident (and Carter's ultimate relay of his understanding of events to UPS) was not retaliation in violation of Article VII, Section 11(g). The report of alleged campaigning to UPS is not activity protected by the Rules. While Hall and the UR&F slate clearly were irritated because Carter had contacted UPS management, Carter's report was not the exercise of a "right guaranteed by" the Rules. Meyer's retelling of his joking conversation with Roberts similarly did not involve any Rules-protected activity. Because neither Meyer nor Carter engaged in protected activity within the meaning of Article VII, Section 11(g), any reaction by Hall and the UR&F slate to that conduct does not constitute retaliation within that provision's meaning.
Even were the conduct of Hall and the UR&F slate deemed to be a response to protected activity - a finding we expressly decline to make - it would not constitute a "threat of retaliation" within the meaning of the Rules. Actual violence to suppress Rules-protected conduct has been found to be retaliation. See Teller, P1086 (December 27, 1991) (finding violation where a local trustee grabbed a member by the arm, tapped a finger into his chest, grabbed him by the jacket collar and pushed him against the wall); Stefanski, P282 (January 22, 1996), aff'd 96 EAM 94 (February 21, 1996) (finding violation where a member grabbed another's arm in a menacing manner and ordered him to leave the facility where he was campaigning). Further, a threat of violence has also been held retaliation. See Smith, P600 (April 30, 1996) (finding remark "you'll be taken out of here in a body bag" to violate Rules); Lopez, P456 (April 10, 1996) (finding "I'll kill you" to violate Rules); and Kelly, P600 (March 27, 1991) (finding threat to "kick their ass" made in menacing manner in violate Rules). A threat of retaliation must be serious and immediate to amount to a Rules violation. Past decisions recognize that loud and sensational language is part of the election process, and the Rules do not bar that sort of zealous campaigning. See Yocum, 2000 EAD 18 (September 1, 2000) (loud, rude and obnoxious behavior not unlawful); Wasilewski, 2000 EAD 14 (August 14, 2000) (words exchanged between two sides not unlawful); and Rudolph, P861 (August 29, 1996) (no violation where tempers flared briefly on each side, words and a few pushes were exchanged). Moreover, in the cases finding retaliation, the circumstances show that the retaliator aimed at protected activity in a way to send an immediate message to the victim, and that the victim could reasonably perceive the threat in that way.
Here, Hall's alleged threat was not made to or in the presence of the purported victim (Meyer), nor did Hall know the intended victim's identity. While Hall's language to Carter was untoward and inappropriate, we do not find that it crossed the threshold to a threat of physical violence that violates the Rules. Meyer
The posting on UR&F's website calling for the discharge of Carter also does not constitute retaliation or a threat thereof within the meaning of the Rules because, short of being elected to local union office, the slate lacks the authority to carry out the discharge.
Although Hall and UR&F did not commit prohibited retaliation, we are troubled by the actions of Local 89's representatives (business agent Carter, secretary-treasurer Bolton, and the protestor) in response to the activity. The activity Meyer reported to the protestor was, as we have found, incidental campaigning at best (and therefore conduct the Rules expressly do not prohibit (Article VII, Sec. 11(a)), yet Bolton and Carter, acting on a second-hand report, treated it as prohibited and Carter sought to have the employer - rather than our office - enforce the Rules. As demonstrated by the reports of Roberts' response to Carter and Schmitt ("concerned," "upset and scared" about his job), the involvement of the employer in this instance (which occurred because of Carter's complaint to the employer) has some chilling effect on the uninhibited, wide-open and robust debate the Rules otherwise encourage in campaigning. No one has filed a protest on this issue, however, and we decline to exercise our reserved authority to find facts or otherwise address it.
Alleged improper campaign expenditures. Article XI of the Rules requires that campaign expenditures for elections subject to the Rules be made only with funds properly contributed by members. The protestor has asserted that the UR&F slate used funds solicited for the local union election to finance campaign activities for the delegate and alternate delegate election. However, the protestor has offered no evidence to support this allegation, and we have found none. The UR&F slate explained how it maintains separate accounts for its delegate election and local union officer election activities, and that costs for the delegate competition are to be paid with funds raised in accordance with the Rules. While the slate's literature and website postings refer to both the local union and delegate and alternative delegate elections, the Rules do not prohibit use of contributions properly solicited under the Rules for such dual-purpose activities as electing the same candidates to delegate and local union executive board positions in concurrent or nearly concurrent elections. On these facts, we find no violation of the Rules.
Therefore, we DENY this protest in all respects.
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 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:
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 the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, c/o Orrick, Herrington, & Sutcliffe LLP, 3050 K Street, N.W., Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2005ESD 8
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
pszymanski@teamster.org
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
braymond@fwslaw.com
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Jeff Cooper, Business Agent
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
jscoupe@teamsters89.com
Fred Zuckerman, Secretary-Treasurer
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fzuckerman@teamsters89.com
Robert Colone
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
rmcolone@teamsters89.com
Ann Curry Thompson
Kelman Loria, PLLC
660 Woodward Avenue, Suite 2300
Detroit, MI 48226
acthom@kelmanloria.com
United Rank & File Slate
P.O. Box 991175
Louisville, KY 40269-1175
Rankandfile2005@msn.com
Darrell Hall
459 Washburn Lane
Taylorsville, KY 40071
darrellhall@bellsouth.net
Chris Roberts
3530 Hycliffe Avenue
Louisville, KY 40207
crobertsky@yahoo.com
Chris Carter, Business Agent
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
ccarter@teamsters89.com
Mike Meyer
2042 Willowbrook Court
Prospect, KY 40059
mikeandpat@netscape.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com