Protest Decisions

IN RE: MICHELLE GLESSNER and ALAN WEEKS, Protestors.
Protest Decision 2011 ESD 96
Issued: February 1, 2011
OES Case No. P-081-011811-ME & P-082-011811-ME

Michelle Glessner and Alan Weeks, members and delegate candidates in Local Union 957, 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 protests alleged that Doug Davis, secretary-treasurer and business agent, impermissibly retaliated against Glessner for activity protected by the Rules.

These protests were consolidated for investigation and decision. Election Supervisor representative Denise Ventura investigated them.

Findings of Fact

Protestor Glessner is a steward at ABF's Dayton, Ohio branch. On January 6, Glessner's supervisor, Dawn Podijil, called a safety meeting of ABF employees. When assembling for the meeting, Glessner asked Podijil if she could make an announcement about upcoming union meetings. According to Glessner, she often made such announcements at work to encourage her co-workers to get involved in union activities. Podijil said she could. When the meeting began, Podijil told those assembled that Glessner would speak to them about "some union stuff" at the end of the meeting. When the meeting concluded, Glessner announced the monthly union meeting to take place on Sunday, January 9, and the nominations meeting for the delegates and alternate delegates election that would occur on Saturday, January 8. A co-worker called out, asking if Glessner would be nominated. Glessner responded to the co-worker that there was a chance she would be, and if she were she was backing Sandy Pope. Pope is a candidate for IBT General President.

On Saturday, January 8, Glessner was nominated for delegate. She is a member of the Vote for Choice slate, as is the other protestor in this case, Alan Weeks.

On Thursday, January 13, Glessner was pulled into a meeting with ABF branch manager Tim Magato, ABF regional vice president Mark McMinn, and ABF industrial relations manager Steve Dusko. Also present were Podijil, Local Union 957 officer and business agent Doug Davis, and alternate union steward Dayna Sluterback. Davis, Local Union 957's secretary-treasurer, is the business agent responsible for servicing ABF members in Local Union 957; he is also a delegate candidate on the Members First slate, which is opposing the Vote for Choice slate.[1] Sluterback is an ABF employee, Glessner's friend, and Davis' stepdaughter.

According to Glessner, Dusko led the meeting. He said he knew it was an election year and that it was federal law not to campaign in the workplace. He stated that at the January 6 safety meeting Glessner campaigned by stating that if she got nominated she would back Sandy Pope. Dusko further told Glessner that the only campaigning permitted at the worksite was in the employee parking lot and off the clock. He said she was not permitted to hang flyers or wear campaign pins or t-shirts at work. Dusko concluded by telling Glessner that if campaigning happened again, "it can be immediate termination." According to Glessner, business agent Davis said nothing in her defense at the meeting.

IR manager Dusko told our investigator that he learned from business agent Davis, on Monday, January 10, three days before the January 13 reprimand meeting, that there might have been some inappropriate things said at the January 6 safety meeting. Dusko said he called Podijil, Glessner's supervisor, and asked what Glessner had said. Podijil told him that Glessner announced at the end of the safety session that union meetings were coming up. Dusko said he asked Podijil if Glessner had said anything else; Podijil replied that was all she heard.

Dusko said he arranged the January 13 meeting because the Dayton facility has been in operation for only three years, and, in his view, the stewards and supervisors don't realize what is and is not allowed. At this meeting, he gave what he called "the company version of what they can and cannot allow" in terms of union campaigning. Dusko said that Glessner and alternate steward Sluterback agreed that Glessner had said she was running for delegate and would be supporting Sandy Pope. Podijil maintained that she did not hear Glessner say that at the safety meeting.

Dusko told our investigator that he "made it very clear that we can't allow this conduct to go on." He knew that "the ladies were scared to death," and admitted that he "may have come on a little strong in this meeting." He said, "They were definitely intimidated because they didn't know what they had done." Although he said he could not recall his precise language, Dusko believed he said there would be serious consequences for anyone who did this again.

Business agent Davis told our investigator that he was not present at the safety meeting. He learned from his stepdaughter, Sluterback, that Glessner said at the meeting she was supporting Pope. He said that Sluterback told him that Glessner asked her to tell the night shift the same thing, which Sluterback did. At this, Davis said he "jumped all over" his stepdaughter for campaigning on company property and told her that campaigning had to be confined to the parking lot.

When our investigator asked Davis if he told IR manager Dusko about Glessner's alleged campaigning, he deflected the question, saying he wasn't sure how Dusko heard about it. Davis revised his answer after our investigator told him that Dusko said he had learned of the incident from Davis. Learning this, Davis then conceded he did, saying he asked Dusko if he was aware that Glessner had been campaigning on company time, and if Dusko "was allowing that to happen." Davis said he has known Dusko a long time through union business. Davis said he did not view his question to Dusko as reporting an employee to the company.

Davis told our investigator that he attended the January 13 meeting. At this meeting, Dusko "made it clear" that campaigning was not allowed. Also at this meeting, Davis said he asked Glessner what she had said following the safety meeting; she stated that she would be running for delegate and that she would be supporting Sandy Pope. At this point, Davis realized that this was "not real big campaigning to me," but did not say as much at the meeting. Nor did he say anything in support of Glessner. When asked how Glessner appeared to take Dusko's comments, Davis said both she and his stepdaughter seemed "nervous."

Davis said that the next day, January 14, he visited the ABF facility again to talk to Glessner because he was "very upset that she asked my stepdaughter to nominate her" for delegate. Davis said he was upset because his stepdaughter is family, and he is running for delegate, too. He "told [Glessner] to leave my stepdaughter out of it." At the end of this conversation, Davis said he hugged Glessner "and told her I loved her."

Davis said his duties as business agent include negotiating contracts and representing "the girls in the office" at ABF. When asked why he reported Glessner's alleged campaign activity to the company rather than to the Election Supervisor, he stated he "thought the company already knew about it." With respect to Glessner and his stepdaughter, he stated, "I love 'em to death - I'm trying to teach 'em union stuff. They've only been doing it for two years."

Analysis

Article VII, Section 12(g) of the Rules prohibits "[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."

Business agent Davis violated this provision. He actively retaliated against Glessner first by reporting her conduct to Dusko, his long-time opposite at ABF, expecting that the report would cause the employer to reprimand her. Although he is Glessner's business agent, and recognized in the meeting with Dusko that what Glessner did was "not real big campaigning," he did not represent Glessner's interests during the reprimand meeting. He retaliated again by coming to her workplace the next day to warn her against seeking political support from his stepdaughter.

Glessner's candidacy, not her incidental remarks about Pope, motivated Davis to retaliate. This is established by Davis' conduct the day after the reprimand meeting when he returned to ABF to tell Glessner he was "very upset that she asked my stepdaughter to nominate her."

If Davis truly intended to assert a Rules violation, he should have filed a protest with our office. Article XIII, Section 1 grants him and every other member to file a protest alleging noncompliance.[2] That he did not file is consistent with his actual assessment at the reprimand meeting, where he recognized (in private thought) that Glessner's statement was "not real big campaigning."

The exception to the prohibition on campaigning during work hours for "[c]ampaigning incidental to work" recognizes that some activity that literally fits the definition of "campaign activity" inevitably occurs in members' everyday interactions on the job. Rosas, 2001 EAD 200 (February 27, 2001) ("The Rules recognize that as employees engage in normal personal interaction while they work, campaigning should not be excluded from what they may talk about."). In assessing whether campaign activity is incidental, we look to whether the activity interfered with employees performing their regular work or caused employees to deviate from prescribed duties. Pinder, 2006 ESD 133 (March 7, 2006) (campaigning found to be incidental where UPS driver distributed flyers to 2 others while loading truck and encouraged them to vote; conduct did not interfere with duties, and all drivers left terminal on time.) We also consider the duration of the campaigning incident; brief or transient matters are more likely to be held incidental to work. Pinder (less than 5 minutes); Thompson, 2001 ESD 332 (April 30, 2001), aff'd, 01 EAM 73 (May 24, 2001) (one-on-one campaign exchange that took place while both employees worked together to set a trailer hitch held incidental); Cooper, 2005 ESD 8 (September 2, 2005) (exchange lasting 10 seconds found to be incidental); and Gibbs, 2010 ESD 54 (December 9, 2010) (asking for and receiving a campaign postcard held incidental campaigning where exchange took a few seconds). In the present case, the exchange in which a co-worker asked Glessner if she would be nominated and her response that she might be and if so would be supporting Pope consisted of a brief statement, question and response, and did not interfere with any employee's work or cause them to fail to perform their duties. Accordingly, Glessner's comment was campaign activity "incidental to work" and did not violate the Rules.

In this way, among others, IR manager Dusko was incorrect when he made the blanket statement to Glessner that campaigning in the workplace violated federal law. His statement that Glessner could not bring flyers into the workplace was also wrong as a blanket proposition, because the Rules protect the distribution of flyers in break areas on break time[3] and the posting of campaign flyers on general purpose bulletin boards in the workplace.[4] Wearing campaign buttons or emblems in the workplace is also permitted,[5] where the employee does not interact with the public. Members may even wear campaign t-shirts in the workplace, where they do not meet customers or the public in the course of their duties.[6]

We find that IR manager Dusko learned of Glessner's alleged campaign activity from business agent Davis and that Dusko's reprimand of Glessner was caused by Davis. We reach this conclusion because Dusko's only other source of what occurred at the safety meeting was Podijil, the supervisor, and Podijil was unaware Glessner made any comment that could be construed as campaigning. As business agent, Davis occupies an important position for ABF employees at the Dayton facility. He is their representative appointed to insure that they receive the rights, benefits and protections set forth in the collective bargaining agreement, including the right to be disciplined only for just cause. He failed in his obligation by reporting an incident that he ultimately was not even sure amounted to misconduct, and by not representing the interests of the employee he identified to management. That he did this to a competitor in the delegate election makes it a Rules violation.

Accordingly, we GRANT these protests.Remedy

When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.

Davis abused his authority as business agent to induce the employer to interfere with the campaign rights of a member he has responsibility for representing. That action undermines the electoral process by intimidating the candidate-member in the free exercise of her rights under the Rules. That Davis is also a local union official adds weight to the violation.

Accordingly, we order the following remedy:

1.      Davis shall cease and desist from retaliating and threatening to retaliate against any member for activity protected by the Rules. In particular, Davis shall take no action to cause Glessner to suffer adverse employer action by the employer and, if such action is taken, he shall fulfill his responsibilities to provide prompt and effective representation to her, or insure that it is provided.

2.      Davis shall cease and desist from retaliating and threatening to retaliate against any candidate on the Vote for Choice Slate, or any supporters of that slate, for activity protected by the Rules.

3.      Local Union 957 shall post the notice attached to this decision on all union and worksite bulletin boards under the jurisdiction of the local union, within 2 days of issuance of this decision. The posting shall be maintained for a period of 30 consecutive days and shall not be defaced or covered up. Upon completion of this posting, the local union shall submit an affidavit of compliance to our offices.

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, 1801 K Street, N.W., Suite 421 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
        2011 ESD 96

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
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.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

Michelle Glessner
1680 Country Side Drive
Beavercreek, OH 45432
michelle.glessner@yahoo.com

Alan Weeks
2043 Leis
Miamisburg, OH 45342
lweeks1@woh.rr.com

Doug Davis, Secretary-Treasurer
Teamsters Local Union 957
P.O. Box 13357
Dayton, OH 45413
(via fax: 937-278-7577)

Varney Richmond, President
Teamsters Local Union 957
P.O. Box 13357
Dayton, OH 45413
varneyr@teamsterslocal957.com

Denise Ventura
949 Old Hickory Road
Pittsburgh, PA 15243
dmventura@verizon.net

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey J. Ellison
214 S. Main Street, Suite. 210
Ann Arbor, MI 48104
ellisonesq@aol.com