IN RE: ANTHONY PINDER, Protestor.
Protest Decision 2006 ESD 133
Issued: March 7, 2006
OES Case No. P-06-195-022806-AT
Anthony Pinder, member and business agent for Local Union 639, 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 asserted that on Saturday, February 25, 2006, at 5:30 a.m., Charlene Peete-Jackson, an employee of Ottenberg's Bakery, campaigned during her work time in a work area.
Election Supervisor representative J. Griffin Morgan investigated this protest.
Findings of Fact and Analysis
Charlene Peete-Jackson is a candidate for delegate on the Team 639 slate. She drives a delivery truck for Ottenberg's Bakery. On Mondays, Tuesdays, Thursdays, and Fridays, she starts work at 2:00 a.m. Wednesday is an off day. On Saturday, she starts work around 5:00 a.m.
Jeffrey Pitsenberg is a supporter of the Members United slate and a delivery truck driver for Ottenberg's. He stated that between 5 a.m. and 5:30 a.m. on Saturday, February 25, Peete-Jackson spoke to two drivers on the Ottenberg's Bakery dock and showed the drivers sample ballots prepared by the Team 639 slate. Pitsenberg stated that he was approximately 70 feet away from Peete-Jackson and the two drivers. He stated that there were six to seven empty loading docks between his truck and where the conversation took place. Despite that distance, Pitsenberg stated that he could clearly hear and understand the conversation between Peete-Jackson and the two drivers. He stated that he heard Peete-Jackson tell the drivers, in a conversation lasting several minutes, to mark the box to vote for the Team 639 slate. Pitsenberg further stated that Peete-Jackson loads her truck on a dock located on the opposite side of the bakery and that she had no business on the dock where he and the other two drivers were located.
Peete-Jackson stated that normally she does load her truck on the opposite side of the bakery from the bay where Pitsenberg loads his truck. However, she stated that on Saturdays her truck is sometimes loaded on Pitsenberg's side of the dock. Peete-Jackson stated that on Saturday, February 25, and Saturday, March 4, her truck was loaded on the same side of the bakery as Pitsenberg's truck. She stated that on that side of the dock there are spaces for 12 trucks. On February 25, her truck was located at the end of the dock (space 1). Two trucks were being loaded in the two spaces immediately adjacent to her truck (spaces 2 and 3). There were six empty spaces (4-9), Pitsenberg's truck (10), and two more empty spaces (11, 12).
Peete-Jackson asserts that Pitsenberg could not have heard her conversation with the two drivers because of the distance between their three trucks and Pitsenberg's truck. However, Peete-Jackson admits that she distributed sample ballots from the Team 639 slate. She states that she encouraged the two drivers parked next to her to vote and to call the 800 number if they did not receive their ballot within the next few days. She states that the conversation lasted less than five minutes and did not interfere with her work or the work of the other two drivers. She stated that she and the other drivers left the dock on schedule.
From the interviews with Pitsenberg and Peete-Jackson, there is agreement on the following facts: (1) Peete-Jackson had campaign discussions with two truck drivers; (2) the discussions took place on a loading dock, in the immediate vicinity of the trucks Peete-Jackson and the other two drivers would soon be driving; and (3) the campaign discussions were of short duration, described as several minutes or less than five minutes.
Additionally, we find that Peete-Jackson reported to work on February 25, at her normally scheduled Saturday morning time of approximately 5:00 a.m. and that her truck was parked immediately adjacent to the two drivers with whom she was speaking.
Analysis
The Rules prohibit a member from campaigning on time that is paid for by an employer. The applicable rules read:
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 time off is also not violative of this section.
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No member may campaign for him/herself or for any other candidate during time that is paid for by the Union or by any employer. However, campaigning incidental to work or regular Union business or during paid vacation, paid lunch hours or breaks, or similar time off is not violative of the campaign contribution rules.
Rules, Article VII, Section 12 (a) ¶ 3; Article XI, Section 1(b) (7). The rules protect "incidental" campaigning on work time to insure that members may 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 looks to employer tolerance of similar personal activity, Halberg, P403 (February 22, 1991), and to the brevity of the campaigning. Kaiser, P56 (December 12, 1990). The incidental exception does not cover campaign activity distinct in time or place from the employer's normal work. George, supra. The incidental exception has been applied where a member was campaigning on his break time among employees who were on work time. Rosas, 2001 EAD 200 (February 27, 2001).
In this case, Peete-Jackson timely performed her work duties. She did not deviate from her prescribed duties or interfere with the other drivers' work. The campaign activity at issue took a short amount of time. Therefore, we conclude that Peete-Jackson's campaign activity was incidental to her work and did not violate the Rules.
Accordingly, we DENY this 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 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
885 Third Avenue, Suite 1000
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
2006 ESD 133
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
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
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Anthony Pinder
10703 Meynell Drive
Chelterham, MD 20623-1203
Charlene Peete-Jackson
11107 Elon Court
Bowie, MD 20720
Jeff Pitsenberger
1200 Towanda Lane
Bowie, MD 20715
Thomas Ratliff, President
IBT Local Union 639
3100 Ames Place, N.E.
Washington, DC 20018
J. Griffin "Griff" Morgan
Elliot, Pishko, Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com