IN RE: DANIEL FUSSMAN, Protestor.
Protest Decision 2006 ESD 235
Issued: May 10, 2006
OES Case No. P-06-247-033006-MW
Daniel Fussman, a member and delegate candidate from Local Union 486, 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 a steward at a UPS sought to have the protestor, also a UPS employee, fired for campaigning on UPS property.
Election Supervisor representative Joe Childers investigated the protest.
Findings of Fact
Protestor Fussman is a UPS employee and shop steward at UPS's Mt. Clemens, Michigan facility; he ran for delegate in Local Union 486's delegate and alternate delegate election. The protest alleged that on March 21, 2006, Fussman was told by drivers employed at UPS's facility in Alpena, Michigan that Bill Johnson, the shop steward at that facility, had threatened to get Fussman fired if he campaigned inside the building in Alpena.
The protest alleged that the next day, March 22, shop steward Johnson reported Fussman to UPS management for distributing flyers at the Alpena UPS facility earlier that day. The protest claimed that Fussman had engaged in activity protected by the Rules and that Johnson's act of reporting Fussman to management constituted prohibited retaliation.
Fussman campaigned in a work area by placing campaign flyers on the drivers' seats in package delivery cars. Drivers were loading the package cars while Fussman leafleted, and Fussman stated that he did not interfere with their work. Investigation showed no contrary evidence.
Fussman stated to our investigator that he leafleted the package cars because he believed the Rules permitted him to do so. When he returned to the Mt. Pleasant facility at the end of the day on March 22, however, Fussman was called into the office of the center manager, Willie Lewis. Lewis told Fussman that Kirk Blitzel, district manager for UPS, had telephoned and stated that Fussman had been campaigning inside the building at Alpena. Blitzel stated that shop steward Johnson had faxed Fussman's campaign flyer to Blitzel at the West Branch, Michigan UPS center. According to Fussman, Lewis was about to discipline him when Fussman told him that the campaign activity was protected by the Rules. As a result, Fussman was not disciplined.
After meeting with Lewis, Fussman learned that UPS's rules of conduct permit candidates to campaign inside UPS buildings; however, such campaign activity is confined to breakrooms and locker rooms.
Johnson told our investigator that UPS rules prohibit campaigning in the buildings altogether, while permitting it only in the parking lots. When he learned that Fussman was campaigning inside the building in Alpena, Johnson told the drivers at his facility to tell Fussman that they could accept his campaign literature only in the parking lots and not in the buildings. Johnson stated he gave this advice to protect drivers from charges that they engaged in campaign activity in a work area on work time by accepting Fussman's flyers. Johnson stated he also told the drivers that Fussman could be disciplined, up to and including discharge, for campaigning in prohibited areas.
However, Johnson denied stating it was his intention to pursue disciplinary action or discharge for Fussman. Instead, when he learned that Fussman had distributed literature in package cars, Johnson contacted Norm Shepherdson, the facility manager for both the Alpena and the West Branch UPS centers, told him of Fussman's activity and requested the same opportunity to campaign in work areas that Fussman had exercised. Johnson was a supporter of the slate opposing Fussman in the delegate election. Shepherdson told Johnson that he would contact UPS labor relations representative and ask him to contact Fussman's supervisor.
Investigation found no evidence that UPS had, prior to Fussman's exercise, permitted campaign activity in any work area of the Alpena facility. In addition, investigation found no evidence that any UPS manager was aware of Fussman's activity while he was engaged in it.
Analysis
Article VII, Section 12(d) of the Rules prohibits any restriction on candidates' and members' preexisting rights to campaign on employer premises, subject to the limitation that such campaign activity may not occur on time paid for by the employer. Distributing campaign literature to UPS package cars in a work area of a UPS facility while the drivers were loading the rear of the vehicles is not activity protected by Article VII, Section 12 of the Rules, however, as there is no evidence that such activity in work areas has been permitted in the past. UPS's written policy forbidding such activity is prima facie proof that no preexisting right to campaign there exists.
Retaliation or the threat of retaliation against any member for exercising the rights guaranteed by the Rules is prohibited. Article VII, Section 12(g). Here, Fussman's activity was not protected by the Rules. However, he did not suffer discipline as the result of Johnson's report of his activity. Regardless, we find that Johnson contacted management about Fussman's activity for the sole purpose of seeking equal opportunity to campaign in work areas and not to prompt disciplinary action against Fussman.
Accordingly, we find no retaliation under the Rules and therefore 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 Office of the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, Suite 1400, N.W., Washington, D.C. 20006, 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 235
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
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
Daniel Fussman
185 S. Lincoln
Mt. Pleasant, MI 48858
Bill Johnson
7880 U.S. 23 South
Ossineke, MI 49766
Dave Robinson, Secretary-Treasurer
IBT Local Union 486
805 Bridgeview South
Saginaw, MI 48604
William Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com