Protest Decisions

IN RE: JIMMY MARTINEZ, Protestor.
Protest Decision 2011 ESD 134
Issued: February 23, 2011
OES Case No. P-104-013111-NE

Jimmy Martinez, member of Local Union 449 and alternate delegate candidate on the Generation Next Slate, 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 local union president and business agent George Harrigan retaliated against him by reporting to UPS management that he was distributing campaign material on company time in work areas. Martinez asserted that such conduct was intimidating and interfered with his right to exercise his political rights under Article VII of the Rules.

Election Supervisor representatives Maureen Geraghty and Deborah Schaaf investigated this protest.

Findings of Fact

Martinez is employed at UPS Buffalo as an irregular train operator on the twilight shift. He drives an electric cart in all areas of the hub picking up and delivering irregular packages during the package sort process. Frank Damon is a local union trustee and chief union steward at the hub on Martinez's shift. Damon supports the No Dues Increase slate in the upcoming delegate election; Harrigan is a delegate candidate on that slate.

The pending election is the first contested delegates and alternate delegates election in the local union's history. Thus, Harrigan, Damon and the other local union officers have not had campaigns or elections at the local union subject to the Rules.

The local union has had contested local union officers elections. In those elections, UPS Buffalo management has never permitted campaigning inside the building, even during break times in break areas. Instead, management has uniformly required employees to limit campaigning to employee parking lot areas at the hub.

Damon told our investigator he saw Martinez give campaign t-shirts to employees on work time at three separate times, the first two incidents on January 20 and the third time on January 27. Damon stated all three incidents occurred immediately after break time. He stated he also heard and observed Martinez discuss his candidacy briefly during work times in work areas, which Damon said violated UPS work rules. Damon immediately reported the matter to UPS twilight manager, Steve Siler, first on January 20 and again on January 27. In both instances, Siler told Damon he did not see Martinez do what Damon alleged; according to Damon, Siler said he would watch Martinez and address any improper campaigning if he saw it.

Martinez denied to our investigator that he campaigned in work areas during work times; he specifically denied handing out campaign t-shirts during work hours in work areas. Martinez stated that he campaigned in designated break areas during designated break times.

Damon told our investigator that he also called Harrigan on January 26 and alerted him that Martinez was campaigning during work hours.

Harrigan said he immediately called Jim Dolan, the UPS labor manager for the Northeast region. Harrigan asked Dolan if UPS had changed its policy prohibiting campaigning in the workplace and, if so, he wanted equal access for all candidates. According to Harrigan, Dolan replied that UPS had not changed its policy and that campaigning in work areas on work times was prohibited. Harrigan then told Dolan that Martinez was campaigning and handing out campaign t-shirts in work areas during work times, also stating that he had received reports that Martinez was doing a lot of talking about his candidacy with other UPS employees during work hours in work areas. Harrigan asked Dolan to look into the matter and to put a stop to it. Dolan agreed to look into the allegations and told Harrigan he would call him back after he spoke to twilight supervisors at the hub.

Following the call with Harrigan, Dolan told twilight supervisor Brian Weber to speak with Martinez and tell him that campaigning in work areas during work hours was prohibited. Dolan also told Weber that campaigning in break areas during break times was permitted under the Rules. As labor manager, Dolan had been involved in a similar protest, Kozubowski, 2010 ESD 61 (December 22, 2010), a few months earlier involving campaign rights inside the UPS Syracuse hub. Harrigan called Dolan back a day or two later and asked if UPS supervisors had spoken to Martinez and, if so, what they had learned. Dolan told Harrigan he had not yet heard back from Weber but would call him when he had some information.

On January 27, supervisor Weber spoke with Martinez, told him that Harrigan had called Dolan and that Dolan had directed Weber to investigate and insure that Martinez was following UPS's policy that limited campaigning to designated break areas during designated break times. Martinez strongly denied engaging in any improper campaigning. UPS has not imposed any discipline on Martinez because managers did not observe him campaigning in work areas or during work times.

After Dolan spoke with Weber, he called Harrigan back and advised him that Weber had not observed any improper conduct and that Martinez had been reinstructed regarding the UPS's policy. Dolan also told Harrigan that under the Rules, UPS employees were entitled to campaign in designated break areas during designated break times. Dolan told Harrigan that the right to campaign inside the facility in designated break areas during designated break times only applied to delegate elections and would not be extended by UPS to local union officers elections.

On February 2, Dolan received a letter from Local Union 449 secretary-treasurer Kenneth Nelligan, who reported that "some candidates for delegates in the upcoming election are wearing and or distributing campaign material inside the building on James E Casey Drive." Nelligan thanked UPS for expanding its policy and reminded Dolan that all candidates must have equal access. Nelligan told our investigator he wrote the letter because UPS had never before allowed campaigning inside the Buffalo hub. UPS management confirmed its past practice during local officer elections restricted all campaign activity to the employee parking lot.

UPS management, after consulting with its legal department, has recently advised the union and employees that employees are allowed to wear campaign shirts inside the facility. In addition, as stated above, following a protest from the Syracuse hub, Dolan has advised managers in the Northeast division that the Rules permit limited campaigning inside the Syracuse and Buffalo hubs in designated break areas during designated break times.

Both Damon and Harrigan admitted they did not believe UPS supervisors were permitting campaigning in work areas or on work times. Both also admitted the reason they reported the conduct to Siler and Dolan was because they wanted management to intervene and stop Martinez from campaigning. Both believed that UPS did not permit any campaigning inside the facility. Dolan, Harrigan and Damon all agree that if the allegations concerning Martinez's conduct were substantiated, Martinez would likely be disciplined by UPS management.

Harrigan and Dolan agreed that Harrigan does not call Dolan to report allegations of employee misconduct; neither could recall a situation where Harrigan called with specific allegations of misconduct involving an identified union member.

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." Local Union 449 president George Harrigan and trustee and chief steward Frank Damon violated this provision by reporting to UPS twilight manager Steve Siler and district labor manager Jim Dolan that Martinez was campaigning in violation of company restrictions inside the Buffalo hub.

If Harrigan or Damon intended to assert a Rules violation, they should have filed a protest with our office.[1] Article XIII, Section 1 grants them and every other member the right to file a protest alleging noncompliance. 

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).  For these reasons, Nelligan, Harrigan and Damon were incorrect when they asserted that campaigning is strictly prohibited inside the UPS Buffalo hub.

The conduct Damon and Harrigan reported to UPS management, with the prospect of bringing Martinez to discipline, did not violate the Rules. Campaign material, like informational flyers, may be distributed in break areas on break time[2] and may be posted on general purpose bulletin boards in the workplace.[3]  The Rules also permit members to wear campaign buttons or emblems in the workplace,[4] where the employee does not interact with the public.  Members may also wear campaign t-shirts in the workplace, where they do not meet customers or the public in the course of their duties.[5] UPS management has advised Martinez and all candidates that work inside the hub that they are free to wear campaign t-shirts.

Harrigan, an officer and business agent of the local union, occupies an important position for UPS employees at the Buffalo hub. 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 of purported misconduct (something he had never done before) that could have resulted in Martinez being disciplined in direct response by UPS management.  Glessner & Weeks, 2011 ESD 96 (February 1, 2011) (Retaliation found where business agent reported incidental campaigning to management and management in turn called disciplinary meeting and warned employee that further campaigning could result in termination). Harrigan took this action against a competitor in the delegate election. Such a response to campaign activity (in this case, activity of a political competitor) is retaliation prohibited by the Rules. Damon, chief shop steward on the twilight shift at the Buffalo hub, owes an obligation to represent all employees fairly, including members he opposes politically. His report of Martinez to UPS supervisors for engaging in political activity violated the Rules. Both men could have raised their question by filing a protest with the Election Office; neither did.

Accordingly, we GRANT this protest.

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.

Harrigan retaliated against Martinez by reporting him to management for engaging in campaign activity. Harrigan's status as a local union official adds weight to the violation.  Damon's report to management similarly retaliated against Martinez and violated the Rules. Harrigan and Damon's union positions (union officer and business agent for the former; shop steward for the latter), in which they are responsible for representing Martinez's interests add weight to the violations.

Accordingly, we order the following remedy:

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

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

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:

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 134

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

Jimmy Martinez
168 Spicer Creek Run
Grand Island, NY 14072
judo72@yahoo.com

Frank Damon
Teamsters Local Union 449
2175 William Street
Buffalo, NY 14206
teamsters449@adelphia.net

Kenneth Nelligan, Secretary-Treasurer
Teamsters Local Union 449
2175 William Street
Buffalo, NY 14206
teamsters449@adelphia.net

Maureen Geraghty
426 Old Salem Road
Winston-Salem, NC 27101
mg@geraghtylawfirm.com

Deborah Schaaf
1118 Coddington Road
Ithaca, NY 14850
debschaaf33@gmail.com

David F. Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com

Maria Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com