IN RE: MICHAEL ZAJAC, Protestor.
Protest Decision 2011 ESD 173
Issued: March 21, 2011
OES Case Nos. P-163-022211-NE
Michael Zajac, member of IBT Local Union 317 and candidate for delegate, 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 candidates on the opposing slate distributed campaign literature using employee mailboxes located at the employees' workplace. Zajac asserted that this use of worksite mailboxes constituted impermissible campaign assistance from an employer.
Election Supervisor representative Deborah Schaaf investigated this protest.
Findings of Fact
Zajac reported that Rachel Doyle, a local union member employed at the North Syracuse Central Schools Transportation Department, reported she received campaign literature of the "Members First Integrity Team" slate in her mailbox at work.
The North Syracuse Central Schools Transportation Department employs 104 regular drivers, 20 attendants and 20 substitutes. There are 104 employee mailboxes, which are open-ended slots in the lobby by the time clock. The mailboxes are located behind a locked door. They are accessible to all employees but not to the general public.
Doyle confirmed to our investigator that she received the campaign literature as alleged. Doyle said that she often gets general communications unrelated to work in her workplace mailbox; she said typical examples included flyers advertising trips, newsletters, and invitations to Tupperware parties. Doyle said she did not remember receiving campaign literature in her workplace mailbox before the Members First Integrity Team slate's distribution.
Doyle complained to Diane Norton, the steward at the location. According to Doyle, Norton stated that she had put the campaign literature in the mailboxes after learning from slate member Mark May that school district policy allowed employees to use workplace mailboxes.
Our investigator spoke to two officials of the North Syracuse Central Schools District. Mike Janisch, the Transportation Department Manager, told us that employees of the bus garage may freely use the employee mailboxes for general matters unrelated to work, including to distribute campaign literature. Janisch thought that campaign literature had probably been distributed before using the mailboxes, but he had no actual knowledge that it had. Janisch recalled seeing the Members First Integrity Team slate's literature and thought it unremarkable to have material like that in the mailbox. In contrast to Janisch, Wayne Bleau, the Assistant Superintendent of the school district, stated that while the school district actually had no policy on the use of workplace mailboxes, the school district purportedly restricts their use. Bleau said that the boxes could not be used for campaigning, nor could campaigning occur on school property.
After receiving the Members First Integrity Team slate's literature, Doyle invited Zajac and DePietro to the employee parking lot at the bus garage to hand out Rank and File Power Slate literature to employees. The three members were in the lot offering literature for about an hour on February 18, then left. Doyle reported that Norton complained about this activity to May; May reported this activity to Bleau; and Bleau then discussed the activity with a person at the bus garage. Jerri Burke, a dispatcher, told Doyle that non-employees are prohibited access to school property, including the employee parking lot.
Local Union 317 held its delegate election ballot count on March 9, 2011. Zajac's slate lost the election by a 2-1 margin.
Analysis
Article VII, Section 12 (d) of the Rules provide that:
No restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity. Similarly, no restrictions shall be placed upon candidates' or 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. Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis.
The evidence in this case establishes that employees at the North Syracuse Central School Transportation Department have a preexisting right to campaign on employer premises notwithstanding any purported policy to the contrary. Specifically, the workplace mailboxes are regularly and frequently used to distribute communications unrelated to work. Although the assistant superintendent claimed there are limitations on use of the mailboxes, he conceded that no policy actually exists. Doyle confirmed that she regularly receives unofficial material in her workplace mailbox, and Janisch confirmed that the boxes were open to general use. The candidates therefore had a pre-existing right to use the workplace mailboxes to distribute literature, and there is no Rules violation. See Walter, 2001 EAD 525 (October 25, 2001) (no violation to distribute campaign literature in driver cubbyholes at workplace where evidence established pre-existing right to use that facility for campaigning). Accordingly, the protest is DENIED.
The Rules also protect Local Union 317 members' right to campaign in the bus garages' parking lot. See Rules, Article VII, Section 12(e). As the Rules contemplate, the campaign activity was limited to the workplace parking lot where candidates may communicate with union members, and was not conducted on any other property of the school district. There was no interference with the actual campaign activity that occurred.
After Norton learned of the campaigning, however, she directed a complaint about this election-related conduct to May who, in turn, brought it to the attention of the assistant superintendent of the school district. That resulted in Doyle being admonished against giving non-employees Zajac and DePietro access to the parking in the future. The Rules prohibit "retaliation or threat of retaliation" by members of the IBT against other members for exercising their protected rights. Rules, Article VII, Section 12(g). If Norton or Mays had questions about the propriety of Doyle's conduct in connection with the campaign, the proper course of action was to file a protest, not to refer the matter to management. See Glessner & Weeks, 2011 ESD 96 (February 1, 2011). In this case, the referral did not impact Doyle's exercise of the right to campaign in the parking lot, because the dispatcher's statement regarding non-employee access was no bar to Doyle. The issue may arise again, however, if there is a contested election for International officers after the IBT's 28th International Convention this summer. Accordingly, we find that Norton and May violated the Rules by attempting to restrict union member campaign activity in the workplace parking lot, and we GRANT this aspect of the protest.[1]
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.
Norton and May interfered with the campaign rights of a member they have the responsibility to represent by reporting the conduct to the school district. That action undermines the electoral process by intimidating the member in the free exercise of her rights under the Rules.
Accordingly, we order the following remedy:
class=MsoNormal style='margin-left:1.0in;text-align:justify;text-indent: -.5in'>1. Norton and May shall cease and desist from retaliating and threatening to retaliate against any member for activity protected by the Rules. In particular, Norton and May shall take no action to cause Doyle, Zajac or DiPietro to suffer adverse employment action by the employer.
2. Local Union 317 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 through the conclusion of the IBT International Officer Election 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 173
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
Michael Zajac
P.O. Box 3012
Syracuse, NY 13220
zajac.mike43@yahoo.com
Mark May
337 Westbrook Hills
Syracuse, NY 13215
markmay@twcny.rr.com
John DePietro
6878 Sand Hill Road, Apt. 4
East Syracuse, NY 13057
cosmo2121@yahoo.com
Gary Staring, Secretary-Treasurer
Teamsters Local Union 317
P.O. Box 11037
Syracuse, NY 13218
gstaring@twcny.rr.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
Office of the Election Supervisor
for the International Brotherhood of Teamsters
1801 K Street, N.W., SUITE 421 L
Washington, D.C. 20006
202-429-8683
877-317-2011 Toll Free
202-429-6809 Facsimile
www.ibtvote.org
Richard W. Mark
Election Supervisor
March 21, 2011
To All Members of the IBT Local Union 317
The Election Supervisor has found that Mark May and Diane Norton violated the Election Rules.
May and Norton retaliated against Rachel Doyle by suggesting to the management of the North Syracuse Central School District that members of Local Union 317 could not campaign for the International Officer Election in the employee parking lot at Doyle's bus garage. That suggestion was made after Doyle and two other Local Union 317 members had campaigned in the parking lot without interference.
The Election Rules provide that IBT members have a limited right to campaign in employee parking lots in connection with the local union delegates election and the International Officer election.
The Election Supervisor has ordered May and Norton to cease and desist from retaliating against any members for engaging in conduct protected by the Election Rules.
The Election Supervisor has issued this decision in Zajac, 2011 ESD 173 (March 21, 2011). You may read this decision at http://www.ibtvote.org/protests/2010/2011esd173.htm.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, 1801 K Street, N.W., Suite 421L, Washington, D.C. 20006, telephone: 877-317-2011, fax: 202-429-6809, email: electionsupervisor@ibtvote.org.
This is an official notice of the IBT Election Supervisor and must remain posted through November 30, 2011. It must not be defaced or covered up.
[1] We also consider both matters as a post-election protest pursuant to Article XIII, Section 2(f)(2). Because we find no Rules violation with regard to the use of the workplace mailboxes to distribute campaign literature, we need not consider whether that conduct affected the outcome of the election. Although we find a Rules violation in connection with the issue of parking lot access, there was no interference here with the campaigning that actually occurred, and there was no restriction on Doyle's right to campaign and communicate with her co-workers in the parking lot. Furthermore, the winning slate's margin of victory in the delegate election far exceeded the number of Local Union 317 members at the location where Doyle works: the lowest tally for a winning delegate candidate was 626 and the highest tally for a losing candidate was 319, for a margin of 307 votes out of 960 cast. Thus, we conclude that this violation did not affect the outcome of the election.
