IN RE: DARRIN ZIEMBA, Protestor.
Protest Decision 2011 ESD 172
Issued: March 21, 2011
OES Case No. P-182-022811-NE
Darrin Ziemba, member of Local Union 264 and candidate for delegate on the No Dues Increase - Members First 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 Chris Schwab, local union vice president and business agent and candidate for delegate on an opposing slate, violated the Rules by using union resources to campaign and by making a disparaging statement about him.
Election Supervisor representative Deborah Schaaf investigated this protest.
Findings of Fact
Schwab was elected vice president of Local Union 264 in December 2010. He visited Erie Logistics freezer facility on February 24, 2011 to attend a regularly scheduled bi-weekly labor-management meeting. After the meeting, he went with two stewards to look at the employee locker room, because proper care of the space had been an issue for some time. While there, he picked up some campaign literature from protestor Ziemba's slate, which he said was scattered about the locker room.
Schwab and the two stewards then left the building and entered the warehouse dock area. Some five members were working on the dock 20 to 30 feet away. One or two came over and asked Schwab questions about the labor-management meeting. During this discussion, Schwab pulled out the opposition slate literature and discarded it in the trash. This action prompted a conversation about the upcoming delegates election and the bullet points on the flyer. Schwab responded to those questions, telling the members that the local union would soon establish a website that would include information about the issues. During the discussion, the number of members engaged in the conversation rose and fell but never exceeded five. The entire conversation, including the discussion of the labor-management meeting and the campaign flyer, took about five minutes, after which Schwab left the facility.
Ziemba did not witness the alleged activity but provided contact information for Chris Denning, a union member and employee who was working on the warehouse dock when Schwab left the building. Denning's account differed from Schwab's in a few respects. Denning said Schwab addressed the bullet points on the flyer in a deliberate attempt to discount the points, while Schwab said he was answering questions from the workers. According to Denning, Schwab said the union was putting up the website "to counter the bullet points in the flyer."
Schwab told our investigator the website is planned by the local union for all members to access for official union business and communications. Schwab said he told the workers about the website because "rumors had been flying" about his running of the local since the recent election. Schwab was trying to "calm the guys down" by emphasizing that the local union is doing its job. In any event, Schwab said the website is not up yet is not likely to be up until well after the delegates election has concluded.
Denning said that Schwab concluded his remarks with a disparaging sexual remark about Ziemba. Schwab did not deny making the remark; he told our investigator he did not remember what he said but admitted that the language got "pretty rough." However, he characterized it as light banter once the substantive conversation had ended.
Schwab said that Ziemba used to work for Local Union 264 as an organizer, but was "let go" when leadership of the local union changed hands in December. Both Schwab and Denning said Schwab and Ziemba had a long history together in the union, and their opposition as candidates and concerning what each views as best for the union has gotten "personal."
Analysis
Article VII, Section 12(b) prohibits union officers and employees from campaigning on time paid for by the union. However, campaigning incidental to union business does not violate this provision. This exception 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).
Here, Schwab's rebuttal to the campaign flyer was incidental to work and did not violate the Rules. Schwab was performing his work activities as a business agent when he visited the Erie Logistics freezer facility. He did not deviate from prescribed duties or interfere with the warehouse dock employees' work, and the campaign activity at issue lasted a short period of time.
With respect to Schwab's disparaging remark about Ziemba, it was made in a campaign context. The Rules permit "rough language" to support or oppose a candidate.
Accordingly, we 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 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 172
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 Hall 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
Darrin Ziemba
Dziemba264@yahoo.com
Mary Hall, President
Teamsters Local Union 264
35 Tyrol Drive
Cheektowaga, NY 14227
mholl264@yahoo.com
Chris Schwab, Vice President
Teamsters Local Union 264
35 Tyrol Drive
Cheektowaga, NY 14227
schwab_christopher@yahoo.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 S. 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
