OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: RICHARD GALVAN, ) Protest Decision 2011 ESD 235
) Issued: April 27, 2011
Protestor. ) OES Case No. P-098-012611-FW
____________________________________)
Richard Galvan, member of Local Union 396, 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 396 induced UPS to discharge Robert Granados and demote David Wuence because of their candidacies for alternate delegate on the Galvan Respect and Dignity slate, in violation of the Rules.
Election Supervisor representative Rochelle Goffe investigated this protest.
Findings of Fact
At Local Union 396’s nominations meeting held January 8, 2011, Robert Granados and David Wuence were nominated for alternate delegate on the Galvan Respect and Dignity slate.
At the time of the nominations meeting, Granados was a 26-year employee of UPS and worked as a package car driver. On January 24, 2011, UPS discharged him, allegedly for time card fraud. The circumstances leading to his discharge showed that, on January 20, he was summoned to a meeting with Eric Decau, UPS manager, and was questioned about an alleged “discrepancy” on his time card from January 18 or 19. According to Granados, Decau claimed that a particular delivery should have taken 6 to 8 minutes but instead took 21. Granados recalled that the discrepancy was explained because he met another driver out on the road to discuss a safety issue.
Granados said that Decau then shifted to what was termed a two hour “discrepancy” from the same day. Granados’ time record showed that his last pickup was completed at 5:07 p.m. but he did not clock off duty until 7:07 p.m. Granados recalled that the additional time was spent taking two breaks he had not taken earlier on his route, then returning to the facility, servicing his truck with gas and air, and taking a safety test. When Decau complained about the breaks taken at the end of the shift, Granados asserted that he had been told by a previous supervisor as well as his current one that it was acceptable to take the breaks at the end of the shift. At this, Decau called the two supervisors to the office. Both denied that it was acceptable to take the breaks at the end of the shift, although Granados’ previous supervisor acknowledged that drivers did it anyway. The meeting closed with Decau stating that the matter remained under investigation.
On January 24, Granados again was directed to Decau’s office, where he was discharged for “proven dishonesty – falsifying records.”
In March 2010, some eight months earlier, Granados had challenged Decau’s action in changing the time on more than a dozen time cards. The company subsequently took corrective action with respect to that time.
When Granados was discharged, Local Union 396 filed a grievance. Granados was reinstated about two weeks later, and the employer agreed to expedited arbitration on the issue of whether any discipline should be imposed on him. At present, the arbitration proceeding has not been held.
Granados believed that his discharge was related to his previous complaint against Decau concerning the time cards. He told our investigator he had no evidence that Decau imposed the discharge because of Granados’ candidacy for alternate delegate.
David Wuence, the other subject of Galvan’s protest, also had been employed by UPS as a package car driver. However, on January 7, the day before the nominations meeting, UPS laid him off, along with five other drivers. He used banked leave time to continue his income for the next two weeks, and then he returned to work as a sorter at a wage substantially less than the wage he earned as a driver. Wuence did not file a grievance against UPS, nor did he file a protest with us.
When responding to our investigator’s questions on Galvan’s protest, filed January 26, Wuence stated that Decau called him aside two or three days before the layoff and told him he had learned from Jay Phillips, Local Union 396’s president, that Wuence and Granados “want to take [Phillips’] job.” According to Wuence, Decau told him, “Good luck.” Wuence had never previously spoken with Decau other than to greet him at the start of a shift, so he was concerned that Decau spoke to him about internal union politics. Wuence said he responded to Decau, “I have got to be careful – are you going to try to fire me?” Wuence said that Decau replied, “Don’t worry, nothing can happen.”
Analysis
Article VII, Section 12(g) prohibits an employer from retaliating against a member for activity protected by the Rules. To prevail on a claim of retaliation, the evidence must show that the member engaged in activity protected by the Rules and that such protected activity was a motivating factor in the adverse decision or conduct in dispute. The Election Supervisor will not find retaliation if he concludes that the employer would have taken the same action even in the absence of the member’s protected conduct. Miner, 2005 ESD 1 (May 27, 2005).
We find insufficient evidence to establish that UPS was motivated to discharge Granados for his alternate delegate candidacy. As noted, Granados believed that the candidacy played no role in UPS’s decision; instead, he contended that Decau discharged him because of a complaint Granados had made against him over time cards some ten months earlier. Further, the evidence Granados presented of the investigatory meetings in Decau’s office related to Granados’ timecard from January 18 or 19 and raised legitimate questions about how particular time was spent. Finally, no mention or reference was made in those meetings to the delegate election or internal union politics.
For a similar reason, we find insufficient evidence to establish that UPS retaliated against Wuence for his candidacy. First, Wuence was laid off from his package car driver position before the nominations meeting. Second, UPS laid off several drivers at the same time, demonstrating that the layoff was likely the result of the post-holiday slowdown that occurs annually at UPS. Finally, Wuence did not challenge the layoff through the grievance procedure, suggesting that he believed it was the result of legitimate exercise of management rights rather than retaliatory conduct.
Finding insufficient evidence to link the adverse employment action suffered by Granados and Wuence to their protected activity, 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, NY 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 235
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
Richard Galvan
1208 E. Dalton Avenue
Glendora, CA 91741
patg_0706@yahoo.com
Ron Herrara, Secretary-Treasurer
Teamsters Local Union 396
880 Oak Park Road, #200
Covina, CA 91724
ronherrera@local396.net
Rochelle Goffe
1234 22nd Avenue, E
Seattle, WA 98112
rochellegoffe@gmail.com
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com
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