Protest Decisions

IN RE: JOHN DePIETRO, Protestor.
Protest Decision 2006 ESD 183
Issued: April 15, 2006
OES Case No. P-06-079-012006-NE

(See also Election Appeals Master decision 06 EAM 33)

John DePietro, a member and delegate candidate from Local Union 317, 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 John Pekoff, local union president and candidate for delegate, threatened and then took retaliatory action against DePietro in response to the exercise of his political rights, in violation of the Rules.

Election Supervisor representative Taea Calcut investigated this protest.

Findings of Fact

At Local Union 317's nominations meeting held January 15, 2006, DePietro and Pekoff were nominated for delegate, running on opposing slates of candidates. DePietro alleged that, after the nominations meeting, Pekoff told him that he would be removed from his current position at UPS, a clerical position he held since October 2005, and reassigned. The protest claimed that any such reassignment would be to a less desirable and more physically demanding job. Less than one week later, DePietro was told he would have to move to another position or accept a pay decrease to retain his current job.

Interviews with DePietro and Pekoff revealed that the job DePietro assumed in October 2005 was as a center clerk, principally a clerical position paying $20.60 per hour. At the time DePietro became center clerk, his pay grade and seniority merited an hourly wage of $26.18. However, after taking the center clerk position, UPS inadvertently continued to pay DePietro at the higher wage. According to DePietro, this error was known to him and his shift manager, Joseph Borello, and was communicated to his business agent, Pekoff, who did nothing to correct the situation until it was clear that DePietro had decided to run for delegate in opposition to Pekoff. Less than a week after the nomination meeting, Pekoff met with Borello, who subsequently advised DePietro that he had the choice to move from center clerk to another position that paid $26.18 or continue as center clerk and accept a pay cut to $20.60 per hour for that position. A week later, DePietro accepted a sorting position that paid the higher wage.

Pekoff told our investigator that in February 2005, a shortage of top pay rate positions at UPS caused DePietro to bid on the center clerk position. Accordingly to Pekoff, DePietro made the bid reluctantly because he understood the job change would result in a pay cut. Because of a number of delays, some attributable to DePietro, he did not assume the center clerk job until October. However, after DePietro accepted the position, the employer erred and continued to pay him at his former $26.18 rate. When DePietro told Pekoff of the error, Pekoff did not tell UPS. He did, however, warn DePietro that once the error was discovered, he would have to change positions in order to continue at the higher wage.

Pekoff stated that he took no action on the incorrect wage paid DePietro for two reasons: (1) he had not been specifically instructed to point out the error to UPS; and (2) UPS had just told the local union that it would not make any changes that might negatively affect service during the upcoming Christmas peak season. However, with the peak season over by mid-January, Pekoff then took the action necessary to remedy the imbalance between DePietro's pay rate and job position. Pekoff denied that he singled DePietro out for the change, providing our investigator evidence that 16 changes in other members' job positions were made in the same time frame, viz.:

Although DePietro claimed that other members of the local union had not had bid job changes acted upon since February 2005, investigation showed that that such changes were made in the six-week period following the nominations meeting. Investigation identified only one member, DePietro himself, who had been paid at an incorrectly high rate.

Analysis

DePietro's allegation that Pekoff singled him out for adverse action because of his delegate candidacy opposing Pekoff is not supported by the evidence. No direct evidence of retaliatory motive, such as an admission by Pekoff, was presented, and our investigation found none. Similarly, indirect evidence of retaliation also is lacking. Although the timing of Pekoff's action understandably raised DePietro's suspicion, two facts dispel retaliation as a motive here. First, DePietro can make no claim he suffered discrimination while others similarly situated did not; he is the only member the investigation identified who was paid at an improperly high rate, and he therefore cannot contend that his wage was corrected while others' were not. Further, more than a dozen job assignments changed after the Christmas peak period, when UPS' moratorium on such changes was lifted.

While the protest argues that Pekoff's action amounted to a retaliatory reassignment to an inferior position, allowing to DePietro to choose either to accept the correct $20.60 hourly wage for the center clerk position or bid on another position that legitimately paid the $26.18 premium wage under the contract with the employer was an altogether appropriate and overdue action.

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 183

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 

Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com 

Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com 

John DePietro
23 Trelign Drive
North Syracuse, NY 13212

John Pekoff, President
Local 317
P.O. Box 11307, Franklin Square
Syracuse, NY 13218

Taea Calcut
1725 K Street, NW Suite 1400
Washington, DC 20005
tcalcut@ibtvote.org 

David F. Reilly
22 West Main Street
North Kingston, RI 02852
dreilly@rooltd.com 

Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com