IN RE: JOHN DEPIETRO, Protestor
Protest Decision 2010 ESD 52
Issued: December 8, 2010
OES Case No. P-051-111110-NE
John DePietro, member of Local Union 317, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that UPS, his employer, impermissibly interfered with his right under the Rules to campaign in non-work areas on non-work time.
Election Supervisor representative Maureen Geraghty investigated this protest.
Findings of Fact and Analysis
Article VII, Section 12(d) preserves "members' preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on employer or Union premises." The provision further states that "[s]uch facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis." This protest concerns these rights.
Protestor DePietro is employed on the twilight shift by UPS at its Syracuse, New York hub. On November 5, 2010, he phoned our investigator to complain that management had prevented him from circulating an accreditation petition on behalf of Sandy Pope, candidate for IBT General President, on non-work time in the break room, a non-work area. Our investigator remedied the matter the same day, contacting UPS counsel and receiving assurance that management and supervision would be instructed not interfere with DePietro's right in this regard. Our investigator phoned DePietro back on Monday, November 8, leaving a message on his voicemail that the interference he encountered from management had been in error, had been remedied, and that DePietro should feel free to engage in similar activity, if that was his wish. UPS communicated the same message to John Pekoff, Local Union 317's president and a business agent with UPS responsibility. Pekoff did not immediately repeat the message to DePietro because DePietro had previously told Pekoff that UPS's interference was DePietro's problem that he would solve without assistance from the local union.
Six days later, on November 11, DePietro filed this protest, alleging UPS interference with his right to circulate petitions in a non-work area on break time. Our investigator immediately contacted DePietro, spoke with him directly, and gave him the same assurance she had left on his voicemail on November 5. DePietro replied that his cell phone does not work well and that he had not received the message. DePietro agrees that as the morning of November 12, he had received assurance from our investigator and business agent Pekoff that UPS would not interfere with his petition activity in non-work areas on non-work time. DePietro tested that assurance during his twilight shift on the evening of November 12, circulating his petitions in the break room on break time in the presence of 2 UPS managers without interference.
UPS management had neglected to communicate the non-interference policy to its security supervisor, however. At the end of DePietro's shift in the early morning hours of November 13, he solicited petition signatures in the smoking area immediately outside the hub entrance. After a brief period during which he campaigned without interference, DePietro went inside, approached a security supervisor, and asked if he was permitted to circulate his petition in the smoking area. The supervisor, uninformed of UPS's non-interference policy, incorrectly told DePietro that the only place he was permitted to campaign was in the employee parking lot. DePietro followed up this statement by asking the supervisor if he could be fired for campaigning in the smoking area. The supervisor replied that it was his understanding that management could fire DePietro for doing so.
When DePietro reported this incident to our investigator, our investigator again assured DePietro of his right to campaign in non-work areas on non-work times, including the smoking area outside the hub entrance. UPS managers met with DePietro on Monday, November 15 to repeat this assurance, to state that the security supervisor had stated UPS policy incorrectly, and to apologize to DePietro for failing to inform the supervisor of the correct policy.
At the November 15 meeting with UPS management, DePietro stated that he wished to campaign in 4 additional areas: 1) immediately outside the feeder break room, near the employee pay phone; 2) immediately outside the main break room, near the employee pay phone; 3) next to the coat hook area adjacent to Door No. 1; and 4) next to the union bulletin board in the Syracuse East area. Investigation showed that these areas are non-work areas.
Three days later, on November 18, DePietro added one more area: next to the orange belt where members rest during a production break when the conveyor belt is off and where UPS management has held pizza parties each Friday to solicit support for United Way.
After consultation, UPS agreed that DePietro could campaign in these areas when he and the employees he is soliciting are on non-work time and, in the case of the orange belt area, when the belt is not running and the employees are on their 15-minute break.
Aside from the incidents he experienced on November 5 from UPS supervisors and again on November 13 from the security supervisor, both of which were promptly remedied through our investigator's intervention, DePietro has been permitted to solicit accreditation signatures without interference, garnering signatures from far more than half of the members employed at the hub.
On this basis, we deem this protest RESOLVED.
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, 1801 K Street, N.W., Suite421 L, 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
2010 ESD 52
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington,D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
Previant Goldberg
155 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
John DePietro
6878 Sand Hill Road, Apt. 4
East Syracuse, NY 13057
cosmo2121@yahoo.com
John Pekoff, President
Teamsters Local Union 317
566 Spencer Street
Syracuse, NY 13204
pikpek@hotmail.com
Darren Jones
UPS
55 Glenlake Pkwy, NE
Atlanta, GA 30328
darrenjones@ups.com
Maureen Geraghty
426 Old Salem Road
Winston-Salem, NC 27101
mg@geraghtylawfirm.com
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com