IN RE: SAMUEL BUCALO, Protestor.
Protest Decision 2006 ESD 166
Issued: April 20, 2006
OES Case No. P-06-055-010606-ME
Samuel Bucalo, member and former candidate for delegate of Local Union 100, 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"). The protest alleged that the protestor's employer, UPS, systematically targeted and punished him in retaliation for his delegate candidacy, in violation of the Rules.
Election Supervisor representative William B. Kane investigated this protest.
Findings of Fact
The protestor was a steward alternate at the UPS Sharonville building. The protest alleged that after the protestor began passing out election materials in the UPS building on December 12, 2005, UPS re-assigned his position and hours. UPS then terminated the protestor's employment by letter dated December 27, 2005. According to the protest, UPS was aware of the protestor's candidacy because of the election literature he distributed. The protest claims that these actions amounted to employer discrimination and that they were taken in retaliation against the protestor for running as a delegate candidate.
Our investigation found that the protestor has filed over 400 grievances against UPS in the last 3 years. The protestor held a variety of positions with UPS since 1979. On May 7, 2005, he was fired by UPS for actions related to pursuing a grievance. After several formal tribunals regarding his termination, the protestor was reinstated without back pay or any liability on UPS's part on December 12, 2005.
On the protestor's first day back to work on December 12, 2005, he passed out campaign literature in front of the UPS Sharonville site. Immediately following this campaigning, the protestor and shop steward Jim McCraken were called to a meeting with UPS Sharonville Center manager Jim Murry and division manager Bill Hearst. The protestor and McCraken were advised that they could not conduct any steward work before or after their work shifts on company property and that they would not be permitted to conduct steward activities during their work shifts. In addition, the protestor was reassigned to a new delivery area and limited to outdoor responsibilities.
After clocking out on December 13, 2005, the protestor claims that foreman Matt Klei directed him to leave the building immediately. Sometime during this encounter, the protestor told Klei that Klei was "skating on thin ice." Later, division manager Hearst altered the previous limitation with respect to steward activity and advised that the protestor and McCraken could perform steward duties before and after their shifts and, with permission of management, during their shifts.
According to the protestor, a short time before midnight on December 20, 2005, he made a joke about foreman Klei's sexuality and "patted" Klei on the arm. A short time later, on December 21, 2005, the protestor was summoned to meet with Klei, supervisor Todd Wachter, and steward McCraken. The protestor was told that he was terminated for an altercation in which the protestor "pushed" Klei. Two days later, the protestor filed a grievance over his termination.
According to McCracken, he witnessed Hearst and Murry inform the protestor on December 12, 2005 that he was not to stray from his work area and that the company could decide when the protestor would be permitted to perform his alternate steward duties. McCracken also attended the meeting on December 21, 2005, where the protestor was told that he had to be removed immediately due to workplace violence.
Business agent David Roa stated that the protestor had been targeted by UPS for a long time; he was unable to provide any evidence suggesting that UPS's actions against the protestor were related to his delegate candidacy.
UPS employee and Local Union 100 member Elvis Bowman witnessed the exchange between Klei and the protestor. According to Bowman, the protestor merely patted Klei on the shoulder, and he was certain that the protestor's action could not be construed as an act of violence.
According to the UPS Sharonville supervisor Todd Wachter, the protestor's candidacy for delegate was never discussed by UPS management officials. Wachter felt that UPS's actions were not in any way related to the protestor's candidacy.
This protest was filed with our office on January 5, 2006.
The protestor was reinstated without backpay on January 9, 2006, and was assigned to work inside the Sharonville site. UPS has changed several of its Sharonville managers, including Hearst and Murry.
In a letter dated January 27, 2006 from Gary Tocci, an attorney representing UPS, Tocci asserted that the protest is both untimely and without merit. Tocci alleges that Klei reported that the protestor had laid his hands on him and pushed him in a threatening manner. At that point, business manager Murry decided to terminate the protestor's employment. Tocci claims that Murry was not even aware of the protestor's candidacy and therefore his candidacy was not a motivating factor in the decision to terminate him.
Analysis
Article VII, Section 12(g) of the Rules states that "[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 this or any other Article of the Rules is prohibited."
Proving a retaliation case requires three elements: 1) activity in question is protected under the Rules; 2) the charged party has actual or constructive knowledge of that protected activity; and 3) the protected activity was a motivating factor in the decision or the conduct at issue. The existence of a reasonable independent basis for the decision or conduct at issue is a defense to an allegation of improper motivation so long as it is not shown to be a pretext. There can be no violation if the decision maker would have taken the same action in the absence of the protective activity. Ulloa, 2001 EAD 135 (February 6, 2001); Ruscigno, 2001 EAD 105 (January 26, 2001); Pope, 2000 EAD 39 (October 17, 2000); Hoffa, P857 (September 11, 1996), aff'd, 96 EAM 234 (September 19, 1996). In other words, a retaliation case is analyzed under the Rules just as a discrimination case is under the NLRA. See generally Wright Line, 251 NLRB 1083 (1980), enf'd, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).
On the facts presented here, we cannot conclude that UPS's decision to discharge Bucalo on December 21 was motivated by his protected campaign activity or delegate candidacy. No direct evidence was presented or discovered that the protected activity motivated the discharge, and UPS expressly denies such motivation. Further, scores of delegate candidates come from the ranks of UPS employees across the nation, and Bucalo is the first candidate who has alleged retaliatory dismissal against the company. More importantly, the event in closest time proximity to the dismissal - and that cited by management as cause for the discharge - was the altercation between Bucalo and Klei. It is not for us to decide whether Bucalo committed the act of which Klei accused him or whether the act, if proven, merited the sanction UPS imposed. We conclude that UPS, rightly or wrongly, discharged Bucalo because of the incident with Klei and not because of his activity that the Rules protect.
Article XIII, Section 2(b) of the Rules requires that pre-election protests "be filed within two (2) working days of the day when the protestor becomes aware of the action protested or such protests shall be waived."
Although the alleged conduct in question occurred on December 21, 2005, the protest was not filed with our office until January 5, 2006. While the protest is untimely, the investigation failed to reveal evidence to support the allegation that UPS acted in retaliation against the protestor's candidacy, and therefore it denied on the merits.
Accordingly, 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 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 166
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
barbaraharvey@comcast.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, #2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Samuel J. Bucalo
6158 King Oak Drive
Cincinnati, OH 45248
Troy H. Stapleton, President
IBT Local Union 100
2100 Oak Road
Cincinnati, OH 45241
Gary Tocci
Reed Smith LLP
2500 One Liberty Place
Philadelphia, PA 19103
gtocci@reedsmith.com
William B. "Bill" Kane
242 Old Haymaker Road
Monroeville, PA 15146
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com