IN RE: DAVID THORNSBERRY, Protestor.
Protest Decision 2005 ESD 13
Issued: October 8, 2005
OES Case No. P-05-015-092905-MW
(See also Election Appeals Master decision 05 EAM 3)
David Thornsberry, a member of Local Union 89 and delegate candidate on the United Rank & File (UR&F) slate, 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 alleged that a Local 89 business agent coerced and intimidated members to believe that the Local Union was officially opposed to the UR&F slate.
Election Supervisor representative Joe F. Childers investigated this protest.
Findings of Fact
The protest alleged that, on September 27, 2005, UR&F supporters handbilled a parking lot at the Ashbottom, Kentucky hub of United Parcel Service. The protest states that Local 89 organizing director Kevin Evans arrived during the leafletting, stood down the employee walkway from the handbillers, and began collecting the UR&F campaign literature the handbillers were distributing. After a brief time, Evans announced to arriving employees that he would finish collecting the campaign literature inside the building. The protest further alleged that Evans made a call on a mobile phone and that shortly thereafter Local 89 business agents Chris Carter, Craig Burns, and Brian Hamm and secretary-treasurer John Bolton arrived. The secretary-treasurer is said to have taken a piece of UR&F campaign literature and left the scene.
Our investigation shows that on September 27, between 7:15 and 8:15 a.m., UR&F campaigners Chris Koerner, Wayne Sharp and Jay Dennis took up positions on the employee walkway at the UPS-Ashbottom employee parking lot to distribute UR&F slate literature. The employee walkway leads into a security building where employees are screened and their belongings searched. The walkway then exits the building and continues outside for a distance before leading to the work facility. The secure area of the facility is limited to employees and their union representatives. Non-employees such as the handbillers in this case are not permitted inside the secure area.
Local 89 organizing director Evans arrived at 7:20 a.m. and waited for business agent Chris Carter before entering the secure area. Evans and Carter were to speak with members that morning about their jobs and any problems they were having. The Ashbottom facility employs 190 package car drivers and 180 sorters within the jurisdiction of Local 89. Day shift employees arrive before 9 a.m.; graveyard employees finish their shifts between 7 and 9 a.m. Agent Carter was late arriving; Evans waited outside the facility for 40 to 50 minutes before Carter arrived. Evans was a frequent visitor to the worksite and was known to the members there as a Local 89 official with UPS responsibility.
According to the handbillers, when Evans first observed them, he made a call on his mobile telephone. He then stood on the employee walkway 15 to 20 feet closer to the security checkpoint and began collecting the UR&F campaign literature from members as they passed him. Specifically, handbiller Sharp saw Evans speak with arriving employees, who then handed Evans the leaflets they had just received from the campaigners. Sharp approached Evan to ask if he needed any more campaign literature. Evans said no, stating that he would get all he needed inside the facility. Campaigner Koerner corroborated this activity, stating that he heard Evans direct members to give him their leaflets, telling them that "you don't need that." When Sharp approached Evans, Evans entered the security building and disappeared from the handbillers' view inside the secure perimeter. Secretary-treasurer John Bolton then arrived at the facility, approached Sharp and obtained a leaflet, and promptly left.
Evans denied collecting campaign literature as alleged by the campaigners. Instead, he stated that, when he arrived and saw the campaigners, he telephoned Bolton and business agents Chris Carter and Paul McIntosh, and asked them to come to the facility. He stated that he saw one driver throw a campaign leaflet in the trash, and he spoke with another driver about a problem the driver was having. When Sharp approached him, Evans stated that he suggested to the driver that they move inside security to discuss the driver's problem away from Sharp, which they did.
Evans' statement that he did not collect campaign literature is not supported by business agent Carter. Carter told our investigator that, when he arrived, he observed a couple of members hand their literature to Evans, who then threw the flyers in the trash. Carter explained, however, that business agents routinely pick up litter at the UPS facility and throw it away.
UPS package car driver Greg Brown stated that he received a UR&F leaflet and pocketed it immediately. When he passed Evans, Brown saw him holding a few UR&F leaflets.
Donnie Post, a UPS-Ashbottom feeder driver, stated that he observed Evans inside the secure perimeter and out of view of the campaigners, shaking hands with arriving employees and collecting their campaign leaflets. Post stated that some employees were reading the leaflets as they approached Evans but gave them to Evans as they passed. Post stated that Evans' hand was so full of leaflets that he had difficulty holding them all. Post subsequently spoke with union steward Scott Flood and asked him whether Evans was supposed to be collecting the literature. According to Post, Flood responded that Evans' conduct was "interesting."
Analysis
Article VII, Section 11(a) of the Rules states:
All Union members retain the right to engage in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions. This includes, but is not limited to, the right to distribute campaign literature and otherwise solicit support for a member's candidacy outside a meeting hall, before, during or after a Union meeting, regardless of Union policy, rule or practice.
Where any candidate or other member of the Union exercises or attempts to exercise any right under the Rules to campaign for or against the candidacy of any person for the position of delegate, alternate delegate, or International Officer, members of the Union shall have the reciprocal right to hear or otherwise receive such campaign advocacy.
No candidate or member may campaign during his/her working hours. Campaigning incidental to work is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is also not violative of this section.
Article VII, Section 11(b) of the Rules states, in relevant part:
All Union officers and employees, if members, retain the right to participate in campaign activities, including the right to run for office, openly support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions. However, such campaigning must not involve expenditure of Union funds. Accordingly, officers and employees (and other members) of the Union may not campaign on time that is paid for by the Union. Campaigning incidental to regular Union business is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is also not violative of this section. An endorsement of a candidate may be made by a Union officer or employee, but solely in his/her individual capacity. …
Article VII, Section 11(c) of the Rules states, in relevant part:
Union funds, facilities, equipment, stationery, personnel, etc., may not be used to assist in campaigning unless the Union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance. …
Campaign activity on union-paid time is incidental to union business - and therefore not prohibited - where it is of brief duration and does not cause the union employee to deviate substantially from his/her prescribed duties. Thus, a union employee transacting union business on union time did not violate the Rules by asking a member to circulate candidate accreditation petitions. Newhouse, P253 (January 4, 1996). Similarly, a business agent on union time who delivered campaign flyers to a member while heading into a safety meeting with the employer did not violate the Rules. Mihalow, P467 (March 7, 1996), aff'd 96 EAM 135 (March 20, 1996); see also, Dillon, P467 (March 4, 1991) (short campaign-related conversation between business agents and stewards which occurred prior to contract negotiations did not violate the Rules).
However, in Noll & Riccio, 2001 EAD 294 (March 31, 2001), aff'd 01 EAM 56 (April 6, 2001), a business agent was found to have violated the Rules by removing campaign literature from a general purpose workplace bulletin board. The business agent, when confronted over the removal of the literature, said he was the business agent and could do as he pleased. On these facts, the Election Administrator found that the agent's action, taken on union-paid time, violated Article VII, Section 11(b) because it represented a substantial deviation from his prescribed duty merely to monitor the postings on a general purpose bulletin board. Further, the agent's conduct was found to constitute a counter-endorsement of a candidate by a union official, in violation of Article VII, Section 11(b), because he invoked his title as business agent when removing it.
On the facts presented here, we find that Evans violated Article VII, Section 11(a) by interfering with the right of the UR&F handbillers to campaign and the reciprocal right of the UPS-Ashbottom employees to receive such campaign advocacy. Evans used his authority as a Local 89 official to solicit and receive from UPS-Ashbottom employees the campaign literature distributed by the UR&F campaigners. We find that members knew Evans to be a Local 89 official with responsibility for their worksite and that they surrendered the leaflets to Evans on account of the office he held.
We further find that Evans violated Article VII, Section 11(b) for engaging in campaign activity while on union-paid time. In reaching this conclusion, we find that Evans' conduct occurred while he was on union-paid time, was of at least 40 minutes' duration, and represented a substantial deviation from his prescribed duties.
Finally, we find that Evans' actions constitute a counter-endorsement of a slate of candidates by a union official in violation of Article VII, Section 11(c). We reach this conclusion because Evans was present at the worksite to conduct union business and was recognized as such. Where a union official appears at a worksite under such circumstances and collects campaign materials distributed by members there, the recipients of that literature may reasonably conclude that the union is opposed to that campaign activity and the candidates or slates the activity supports.
Accordingly, we GRANT the protest with respect to Evans. However, we DENY the protest with respect to business agents Carter, Burns, and Hamm and secretary-treasurer Bolton, finding insufficient evidence to determine that they violated the Rules.
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.
We order Kevin Evans to cease and desist from violation of the Rules in the following respects:
• Interfering with the rights of members to campaign and the rights of other members to receive campaign advocacy.
• Campaigning for or against any candidate or slate of candidates while on union-paid time.
• Endorsing or opposing a candidate or slate of candidates in his capacity as a union officer or employee.
We further order Evans, no later than Tuesday, October 11, 2005, to sign and post the attached Notice on all union and general purpose bulletin boards at the UPS-Ashbottom facility. We order Evans to stand on the employee walkway immediately outside the security perimeter at the facility on Tuesday, October 11, 2005, between 7:15 and 8:15 a.m., and distribute copies of said signed Notice - and that Notice only - to all IBT-represented employees arriving at or leaving the facility by that walkway during that time. Finally, we order Evans, by 5:00 p.m. EDT, Wednesday, October 12, 2005, to transmit his affidavit to our office attesting to his compliance with this remedy.
We note that ballots in the Local 89 delegate and alternate delegate election were mailed October 5, 2005 and that the remedy we order here may be insufficient to cure the effect of Evans' improper conduct. Accordingly, we reserve further remedy until after the tally of ballots has been completed. Within three (3) business days of the date the tally is announced, any interested party may request that we order additional remedy.
A decision of the Election Supervisor takes immediate effect 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. 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, 1725 K Street, N.W., Suite 1400, 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
2005 ESD 13
NOTICE OF ALL UPS-ASHBOTTOM EMPLOYEES REPRESENTED BY TEAMSTERS LOCAL 89
The Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules") prohibit any member from interfering with the rights of members to campaign for or against a candidate or slate of candidates, and the rights of other members to receive or hear such campaign advocacy. The Rules also prohibit a union official or employee from campaigning while on union-paid time and from endorsing a candidate or slate of candidates in his/her official union capacity.
The Election Supervisor will not permit any violation of such Rules.
The Election Supervisor has concluded that I, Kevin Evans, violated the Rules on September 27, 2005 at the UPS-Ashbottom facility when, while on union-paid time, I collected from members the campaign flyers of the United Rank & File (UR&F) slate. The Election Supervisor has determined that my conduct constituted improper interference with the rights of the UR&F slate to campaign and your rights to receive such campaign advocacy. The Election Supervisor has further determined that my conduct, on union-paid time, constituted an improper use of union funds and an improper statement by the union in opposition to the UR&F slate.
Local 89 does not endorse any candidate or slate of candidates in the delegate and alternate delegate election.
I have been ordered to sign, post, and distribute this notice to UPS-Ashbottom employees represented by Local 89.
_____________________________________
Kevin Evans
This is an official notice prepared and approved by Richard Mark, Election Supervisor for the International Brotherhood of Teamsters.
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
David Thornsberry
785 Kingswood Drive
Taylorsville, KY 40071
davidthorny@msn.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fzuckerman@teamsters89.com
Kevin Evans, Vice-President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
kevans@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
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com