OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: JOSEPH PRISCO, ) Protest Decision 2011 ESD 266
) Issued: May 28, 2011
Protestor. ) OES Case No. P-120-020811-FW
____________________________________)
Joseph Prisco, member of Local Union 986 and delegate candidate, 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 Dave Elmore, business agent and delegate candidate on the opposing slate, distributing campaign literature while on time paid for by the union, in violation of the Rules.
Election Supervisor representative Rochelle Goffe investigated this protest.
Findings of Fact
According to its approved local union election plan, Local Union 986 is entitled to 19 delegates and 6 alternate delegates[1]. At its nominations meeting held January 8, 2011, 25 candidates were nominated for delegate and 6 for alternate delegate.[2] Two slates were formed: the Griswold/Harren Shop Stewards and Members slate, comprised of 19 candidates, and the 986 Members for Sandy Pope and Reform slate. Ballots were mailed February 7 and counted February 28. All candidates on Griswold/Harren won their elections.
Protestor Prisco was a delegate candidate on the 986/Pope slate. Respondent Elmore was a delegate candidate on Griswold/Harren.
The Rules violation alleged here occurred at United Air Lines aircraft maintenance facility at Los Angeles International Airport on January 7, 2011, the day before the nominations meeting. Prisco, who works at UAL’s maintenance facility at San Francisco International Airport, had no personal knowledge of the alleged incident. He referred our investigator to Anthony Ybarra.
Ybarra has worked at UAL in aircraft maintenance at LAX for some 25 years. He has been the chief steward there for one year. He told our investigator that access to all areas at the LAX maintenance area is restricted, including work, break and lunch areas. Any person not employed at the LAX facility must have an escort who is able to show proper LAX identification to gain access to all restricted areas, and the escort is required to remain with the guest at all times. This requirement applies to union business agents visiting the facility.
Ybarra stated that he served as Elmore’s escort during Elmore’s January 7 visit to the facility and was with him at all times during that visit. Elmore is a full-time business agent for Local Union 986 and is responsible for servicing the collective bargaining agreement at LAX.
Ybarra said Elmore’s visit lasted approximately 2½ hours. According to Ybarra, he and Elmore first went to the union office. In the time there, Elmore addressed four business items: 1) getting medical-dental coverage reinstated for a member; 2) dealing with a recall order for another member; 3) addressing management about a third member who was recalled and allowed to bid on a position for which he may not have been eligible; and 4) addressing management about another operating problem.
Ybarra said that this business was conducted in the front office area. Between the second and third business items, he and Elmore passed through the break room, where some twenty tables are arranged for employees’ use. According to Ybarra, Elmore brought with him a stack of Hoffa literature. Ybarra said that Elmore placed three flyers on each table, a process Ybarra said took fifteen to twenty minutes. During that activity, Elmore did not speak with anyone and did not ask Ybarra’s assistance. As Elmore was placing the sheets on the table, Ybarra said that member Dave Struthers came through, saw what Elmore was doing and said, “You can’t do that; it’s illegal.” Elmore replied, “Yes, I can,” and continued his activity. According to Ybarra, Elmore did not converse with anyone else, and said nothing about the upcoming delegates election, either in the break room or during the business meetings Elmore had with members or management during the visit.
Elmore told our investigator he arrived at the LAX between 10 and 11 a.m. on January 7 and left a little before 1 p.m. While there, he said he handled five issues with management, and explained the results of his interactions to the members who were affected by them. In addition to the four business items Ybarra recounted, Elmore said he addressed one additional recall issue.
Elmore said that he and Ybarra went to the break room at the end of the conversations. There, Elmore said he bought a soft drink and a cookie, which served as his lunch that day. Elmore stated there were some ten tables in the break room, and he put campaign flyers on six to eight of them. Elmore denied that he brought the flyers to the facility with him. Instead, he said he picked them up off the literature table in the union office at the facility and spread them out in the break room. Elmore said there was no one in the break room when he put the flyers on the tables. A person saw his activity and asked if placing the literature on the tables was legal, and he responded that it was. Other than that brief question and answer, Elmore said he did not discuss the election with anyone.
Analysis
Article VII, Section 12(b) prohibits union employees from campaigning on time that is paid for by the union. “Campaigning incidental to regular Union business is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is also not violative of this section.”
The question this protest presents is whether the time Elmore spent distributing campaign flyers in the LAX break room fell within the exception to the prohibition on campaigning during union-paid time. We find that it did.
Although the amount of time Elmore spent in this activity is disputed (Ybarra estimated it at 15 to 20 minutes; Elmore said it took considerably less time), Elmore was in the break room principally to have a soft drink and a cookie. We conclude that he was on a paid lunch period or break during this time, which was not extended for any appreciable duration by the campaign activity he performed. Accordingly, we find that he did not violate the Rules by placing the flyers on the break room tables.[3]
Accordingly, we DENY 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, 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.
[1] Pursuant to a delegate strength recalculation, Local Union 986’s allotment was reduced from 19 delegates to 18. The 19th delegate became the ranking alternate delegate in accordance with Article III, Section 2 of the Rules.
[2] As the 6 nominees for alternate delegate did not exceed the number of alternate delegate positions open for election, the nominees were declared elected at the nominations meeting.
[3] Although not contested in the protest, we note that distribution of campaign literature in non-work areas to be read by employees on break or lunch periods generally does not violate the Rules. Article VII, Section 12(d); see, e.g., DePietro, 2010 ESD 52 (December 8, 2010); Kozubowski, 2010 ESD 61 (December 22, 2010); Martinez, 2011 ESD 134 (February 23, 2011); Gibbs, 2010 ESD 54 (December 9, 2010); and Hardison, 2011 ESD 198 (April 4, 2011).
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2011 ESD 266DISTRIBUTION 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
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
Joseph Prisco
2414 Ohatch Dr.
San Pablo, CA 94806
jgprisco@yahoo.com
Dave Elmore
Teamsters Local Union 986
1198 Durfee Avenue
South El Monte, CA 97133
dave@teamsters986.org
Rich Petrovsky
7251 Browns Valley Road
Vacaville, CA 95688
richnginsranch1@aol.com
Greg Sullivan
Teamsters Local Union 986
1198 Durfee Avenue
South El Monte, CA 97133
gsullivan@teamsterssfo.com
Christopher Griswold
Teamsters Local Union 986
1198 Durfee Avenue
South El Monte, CA 97133
Cgriz009@teamsters986.org
Rochelle Goffe
1234 22nd Avenue, E
Seattle, WA 98112
rochellegoffe@gmail.com
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.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, Suite 210
Ann Arbor, MI 48104
EllisonEsq@aol.com