IN RE: HEATHER GIBBS, Protestor
Protest Decision 2010 ESD 54
Issued: December 9, 2010
OES Case No. P-054-112210-AT
Heather Gibbs, member of Local Union 391, 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 supporters of the Gray/Bishop slate campaigned on work time in work areas of her plant.
Election Supervisor representative Griff Morgan investigated this protest.
Findings of Fact and Analysis
The Gray/Bishop Experience Team is competing in Local Union 391's delegates and alternate delegates election. Claude Gray, the principal officer of the local union, leads the slate, which also includes other members of the local union executive board. The local union's secretary-treasurer and other executive board members form another slate, Team 391. Nomination of additional candidates is expected. Although the nominations meeting will not occur until January 8, campaigning has begun in earnest.
Protestor Gibbs is employed in the storage and transportation area of B/E Aerospace. Her protest alleged that on November 17 she "witnessed shop stewards and other members passing out election cards for Gray/Bishop team during work hours. Frank Mays, a shop steward, handed me a card at 11:00 a.m." The protest also alleged that the cards were delivered to the back door of her facility by someone from the union hall, suggesting that the delivery was made by an officer or employee of the union on union-paid time. The allegations, if proven, implicate Article VII, Sections 12(a) and (b), which read in pertinent part:
(a)* * * 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 paid time off is also not violative of this section.
(b)* * *[O]fficers and employees (and other members) of the Union may not campaign on time that is paid for by the Union. Campaigning incidental to regular Union business is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is also not violative of this section.
Investigation showed that the campaign cards were brought into the workplace by Ronnie Baldwin and Tony Davis, rank-and-file members. Baldwin said they received the cards from Barry Hardy, a YRC driver, who brought the cards to a parking lot next door to B/E Aerospace after work, several days before the November 17 events that are the subject of the protest. Baldwin told our investigator that Hardy instructed both that they could pass the cards out only during lunch and break times.
Davis corroborated Baldwin in large part, stating that he received the cards from Hardy in the parking lot next door and that Hardy emphasized that the cards could not be distributed during work time.
Hardy told our investigator that he met Baldwin and Davis in the nearby parking lot because he was unsure whether he was permitted to enter the B/E Aerospace lot. He gave the two 60 cards, cautioning them not to pass the cards out during work time but to wait for breaks or lunch.
The cards consisted of a brief statement of support for the Gray/Bishop slate and had spaces in which the recipient could write his/her name and contact information. The cards were to be distributed, filled out, and returned by those who supported the slate.
Baldwin said he passed out about a dozen cards during his break time, waiting for each recipient to fill the card out and return it. Most of these were done in the break room, although Baldwin recalled 2 instances in which a member on break filled out the card in the work area.
Davis gave his stack of cards to several people to distribute, Frank Mays being one. In addition, Davis passed out some cards himself, but only in the break room and only before work, during break time, and at lunch.
With respect to Mays, protestor Gibbs told our investigator that she observed Mays passing something out on November 17. She did not know what it was, so she asked him. Gibbs said that Mays told her he did have any more but would get one for her. In contrast to the written protest which alleged that Mays gave Gibbs the campaign card himself, Gibbs told our investigator that co-worker Travis Martin later handed her the campaign card and said that Mays told him to give it to her. Gibbs was working in the stockroom when Martin gave her the card. She saw other cards on pushcarts used by employees in her department.
Mays told our investigator that he first saw the campaign cards when he found a stack of them on his desk; he did not know where they came from and assumed someone had brought them in the back door, which is used by employees and UPS drivers. Mays said he gave the cards to Mike Davis (Tony Davis' brother); Mays denied passing the cards out himself. Mays said that Gibbs approached him some time after he gave the cards to Mike Davis and asked for a card. Mays told Gibbs he didn't have any. Gibbs, upset, told him, "you should have one; you're the shop steward." Mays replied that if he saw one, he would get it for her. She asked where the cards came from. Mays told her that someone brought them in the back door, which was his assumption. Mays subsequently came across one of the cards and gave it to Gibbs. Mays told our investigator that he was probably in a work area when he gave the card to Gibbs, although he could not recall precisely. Mays further said that he saw several members with cards on their push carts and in the break room. Mays said that about 30 employees work in the storage and transportation department. They take breaks at different times, some in the break room, others in the work area, and still others outside smoking.
On these facts, we cannot conclude that the Rules were violated. The evidence presented is that those distributing the campaign cards were aware that it was impermissible to do so during work time and that they honored this rule by limiting distribution to break and lunch times.
The only evidence that this rule was not observed is the instance in which Mays gave a card to protestor Gibbs. This was done at Gibbs' request, and she received it in a work area while she was working. However, this transaction did not cause Gibbs or Mays to deviate from their tasks, nor did it interfere with the work of another employee.
Precedent establishes that the "incidental" exception to the prohibition on campaigning during work hours is to insure that as members interact normally during the course of their on-the-job responsibilities, that interaction may include campaigning. George, P490 (April 4, 1996). In assessing whether campaign activity is incidental, we look 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); Joseph, 2006 ESD 114 (February 17, 2006); Pinder, 2006 ESD 133 (March 7, 2006). We also assess how much time the campaigning incident consumed; if brief, the more likely the campaigning will be deemed incidental. Kaiser, P56 (December 12, 1990).
We find that Mays' exchange with Gibbs was incidental to their work and did not violate the Rules.
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
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 54
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
Heather Gibbs
2715 Reid Street
Winston-Salem, NC 27107
(by UPS overnight)
Frank Mays
119 Camden Street
Advance, NC 27006
(by UPS overnight)
Ronnie Baldwin
120 Powers Court Road
Winston-Salem, NC 27106
(by UPS overnight)
Claude Gray, President
Teamsters Local Union 391
P.O. Box 35405
Greensboro, NC 27425
cgray65663@aol.com
J. Griffin Morgan
Elliot Pishko Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.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