Protest Decisions

IN RE: KEVIN HARDISON, Protestor.
Protest Decision 2011 ESD 198
Issued: April 4, 2011
OES Case No. P-199-030711-GP

Kevin Hardison, member of Local Union 631 and delegate candidate, filed a pre-election protest in Case Number P-084-011811-GP 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 Empowerment slate campaigned on employer premises in violation of the Rules.

Election Supervisor representative Bruce Boyens investigated this protest.

Findings of Fact

The Hoffa 631 slate competed against the Empowerment slate, the Restore the Pride slate, two other small partial slates and an independent candidate in Local Union 631's election for eight delegates and two alternate delegates to the IBT convention. Protestor Hardison is local union president and was lead delegate candidate on the Hoffa 631 slate. John Phillipenas is local union secretary-treasurer and was lead delegate candidate on the Empowerment slate.

Hardison's protest made four allegations. All were said to occur on March 3, 2011. He first alleged that Todd Clapper, a local union executive board member running on the Empowerment slate, campaigned inside UPS Freight's facility at 8:30 a.m., distributing campaign flyers and posting the flyer on the bulletin board. He also alleged that Phillipenas, Kermit Williams, and Joe Rivas, all of whom are employed by the local union, held a "captive audience" meeting at Laughlin Landfill at 10 a.m. "to discuss politics and health and welfare issues." The protest further alleged business agent Rick Gallegos and steward Marlene Garcia distributed Empowerment slate flyers at UPS South at 10 a.m. and posted the flyer on the bulletin board. Finally, he claimed that Kermit Williams posted an Empowerment slate flyer on the bulletin board at Republic Services Sloan worksite at 3 p.m.

UPS Freight. Investigation showed that member Joe Phillips posted an Empowerment slate flyer on the "general" bulletin board at the facility. According to Phillips, the board he used is not the local union's official board; instead, it is used for general postings and "all kinds of crap are put on that board." Phillips also told our investigator that the flyer he posted had been removed by an unknown person. No witness observed Todd Clapper inside the facility distributing flyers, although member Tom McLaughlin saw Clapper with Phillips outside the building and Phillips had flyers in his hand.

Laughlin Landfill. No evidence was presented to substantiate the allegation that Phillipenas and others made a captive audience speech at this worksite to discuss politics. Steward Dale Jensen, a witness identified by protestor Hardison, told our investigator that he witnessed no campaign activity at the worksite.

UPS South. Investigation showed that business agent Gallegos gave flyers to steward Garcia, who in turn distributed them to a few members who were in the break room taking their breaks. Garcia then noticed a typographical error on the flyer[1] and stopped her distribution. The protest also alleged that Gallegos walked through a sorting area of the facility where four employees were working; it alleged that he held up a campaign flyer and told those employees that the Empowerment candidates "will appreciate your support." Two of the four employees to whom Gallegos made this pitch were candidates on the Restore the Pride slate. The other two indicated to our investigator that they supported Restore the Pride. Six of the eight delegate candidates on the Restore the Pride slate won delegate positions, including the two who were said to have witnessed Gallegos' campaign activity. The remaining two delegate positions were won by Empowerment slate candidates.

Republic Services Sloan. No evidence was presented to substantiate this allegation. Williams denied he visited the facility on March 3. Republic management denied through human resources that they observed any campaigning or campaign literature.

Analysis

We DISMISS the allegations with respect to Laughlin Landfill and Republic Services Sloan for lack of evidence.

The allegation concerning posting on the general purpose bulletin board at UPS Freight implicates Article VII, Section 12(d) of the Rules, which declares that "[n]o restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity." Under this provision, past practice governs use of an employer bulletin board.  Cooper, 2005 ESD 8 (September 2, 2005).  Where there is no past practice of using the board as a general purpose board, there is no right to post campaign literature there.  Bolen, 2006 ESD 73 (February 7, 2006); Deaver, 2006 ESD 74 (February 7, 2006); Hailstone & Martinez, 2010 ESD 24 (September 24, 2010). The only evidence presented concerning the bulletin board at UPS Freight was that it was used for general purposes. General purpose boards may be used for campaigning. Accordingly, we DENY the allegation with respect to UPS Freight.

The allegation concerning distribution of flyers on non-work times in the break room of UPS South, a non-work area, implicates another sentence of Article VII, Section 12(d), which declares that "no restrictions shall be placed upon candidates' or members' preexisting rights to solicit support, distribute leaflets or literature … or engage in similar activities on employer … premises." We have repeatedly held that campaigning in non-work areas of an employer worksite on non-work time does not violate the Rules. DePietro, 2010 ESD 52 (December 8, 2010); Kozubowski, 2010 ESD 61 (December 22, 2010); Martinez, 2011 ESD 134 (February 23, 2011); and Gibbs, 2010 ESD 54 (December 9, 2010). Accordingly, we DENY the allegation with respect to break room distribution at UPS South.

With respect to the allegation concerning Gallegos' display of a campaign flyer in a work area during work time, we find insufficient evidence to conclude that this occurred. The protestor was not a witness to the occurrence; Gallegos denied the incident; and the four employees who said it occurred were either candidates on or supporters of the Restore the Pride slate. If Gallegos made the campaign statement to that audience, as the protest alleged, we find it likely that his pitch would have been met with counter-campaigning either supporting Restore the Pride or opposing Empowerment.

Although this protest was filed pre-election, we consider it in a post-election context pursuant to Article XIII, Section 2(f)(2) of the Rules. If the campaigning occurred on the sorting floor at UPS South as alleged in the protest, we find it did not affect the outcome of the election, as all employees who are said to have witnessed the campaign activity told our investigator that they supported Restore the Pride and were not dissuaded from this support by Gallegos' alleged activity. Accordingly, we DENY this aspect of 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
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 198

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

John Phillipenas, Secretary-Treasurer
Teamsters Local Union 631
700 North Lamb Blvd.
Las Vegas, NV 89110
johnp@teamsters631.com

Kevin Hardison
7345 Rietz Can
Las Vegas, NV 89131
kevinandheather@embarqmail.com

Tommy Blitsch
10372 Kepler Cascades Street
Las Vegas, NV 89141
lvcubs23@gmail.com

Bruce Boyens
1326 S. Elizabeth St.
Denver, CO 80210
boyensb@aol.com

Mary Ann Campbell
13859 State Road E.
DeSoto, MO 63020
scdennis@aol.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