OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: SAM BUCALO, ) Protest Decision 2015 ESD 44
) Issued: October 27, 2015
Protestor. ) OES Case No. P-059-100715-ME
__________________________________)
Sam Bucalo, member and secretary-treasurer of Local Union 100, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that Bucalo suffered retaliation for activity protected by the Rules in the form of possible tampering with electronic equipment in his union office.
Election Supervisor representative Dan Walsh investigated this protest.
Findings of Fact
As detailed in Bucalo, 2015 ESD 42 (October 19, 2015), appeal pending, protestor Bucalo was suspended without pay from all official duties for the period September 21, 2015 through October 4, 2015. Bucalo contended in that case that the suspension constituted retaliation for his Rules-protected support of Teamsters United. The Election Supervisor denied that protest, finding that the suspension was for Bucalo’s conduct unrelated to his Rules-protected activity.
This protest alleged that on September 22, 2015, the second day of Bucalo’s suspension, Local Union 100 president David Webster and two unknown persons entered Bucalo’s office at the local union hall and engaged in manipulation of electronic equipment there. In particular, the protestor claimed that union funds may have been used to install a “keystroke” program on his office computer and that his office may have been “wired” or “bugged” while he was off work serving the suspension. The protestor further asserted that two illegal surveillance cameras were installed in the union office. This activity, according to Bucalo, constituted further retaliation against him for his political support of Teamsters United.
Investigation showed that when Bucalo returned from suspension on October 5, 2015, he discovered that someone had entered his office during his absence. His proof of this activity came from a video camera he has hidden in his office, the recording of which showed that on September 22, 2015, local union president Webster and two individuals Bucalo did not recognize were seen entering his office. One of the individuals turned the camera away from them so that it faced the wall. According to Bucalo, the camera was turned back around twenty six minutes later. Bucalo stated that the video showed one of the persons carrying a computer and another carrying a device Bucalo said looked like a scanner. Bucalo told our investigator he did not know what the persons did while in his office but speculates that they tampered with his computer, possibly installing a “keystroke” program on it. In addition, Bucalo asserted that they may have tampered with his phone. Bucalo stated that the camera he installed is motion activated and that it was not operating during the time it was facing the wall.
Bucalo further stated that two surveillance cameras were installed in the union hall, one in the area where financial records are kept and the second in the area on the second floor where the stairs and elevator are located. Bucalo examined the model number of the cameras installed and concluded that they are capable of recording both video and audio, although he was unable to determine if the audio recording capability was enabled. He told our investigator that the recording of audio with a surveillance camera is unlawful wiretapping.
Local union president Webster told our investigator that at the suggestion of legal counsel he hired a contractor to come into the union hall to scan everything there for hidden audio and video equipment. Webster was aware of the hidden camera in Bucalo’s office, and he decided to have the office checked for other hidden equipment because other officers suspected Bucalo might have placed other devices around the hall.
Webster said he and the contractor’s staff checked all the offices and other areas and found only the video camera in Bucalo’s office, which Webster said he already knew about. Webster has keys to all the offices, and he walked the contractor’s staff around the offices. When they got to Bucalo’s office, they entered, located the hidden camera, removed the chip from it, and checked it on the office manager’s computer; they found nothing there. To access the chip, they had to turn the camera around. When they were done, they replaced the chip and turned the camera back around.
The contractors asked Webster if he wanted them to check Bucalo’s computer. Webster declined, and he denied to our investigator that anything was placed or installed on Bucalo’s computer, including a “keystroke” program, or that any sort of “bug” was placed in Bucalo’s office. The only activity in Bucalo’s office was to examine it for hidden equipment and to check the chip in his camera. Webster said he checked with legal counsel about accessing Bucalo’s computer and was advised not to do so.
Webster said he had a contractor install surveillance cameras in the hall, one at the top of the steps covering the hallway and elevator area, the other in the main office area and focusing on where the office clericals work. He said this was done at the union attorney’s suggestion because of evidence or belief that Bucalo was going through the trashcans. Webster said the cameras record video only, and the feed goes to the office manager’s computer.
Our investigator also interviewed the contractor, Bob Clemmer of Surveillance Technologies. Clemmer said that someone from the local union called and requested an electronic sweep of the union hall, saying they suspected someone might be eavesdropping there. Clemmer and sub-contractor Bob Sudbrink performed the sweep. Clemmer said they checked every area, including the restrooms. They found two visible cameras out in the hallway and office area and another camera hidden in one of the offices. The union did not tell them about any of these cameras before they performed their work.
Clemmer said the office with the hidden camera probably recorded him entering it. He said the camera was hidden by a Sony radio. He turned the camera around to eject the disk and they continued their sweep of the other areas while someone checked what was on it. Clemmer said they did not find anything on the disk so they replaced it. Clemmer said they did not look at the computer, phone or other equipment in that office. He said they could have done so but the union checked with their legal advisor and decided not to have them check it.
Clemmer said his company did not install a keystroke program on anyone’s computer. They also did not plant any “bugs.” He said they do not plant “bugs,” only find them. Clemmer said he did not prepare a written report of what he did because he was told none was needed.
Clemmer said he does not know if any of the cameras they found record audio, although they probably can record both video and audio. He said he does not recommend recording audio because of potential legal problems with doing so.
Before Bucalo left the local union hall to begin his suspension, he locked his office door and taped the following to the outside of the door:
To whom it may concern:
While I am out of the office. My phone calls will be forwarded to President Dave Webster. My Stewards have been alerted that I will be out of the office.
There is no reason for anyone to enter this locked office.
I have provided to Mr. Webster the items needed for those hearings and meetings which I am unable to complete or postpone prior to my absence. I have postponed all other activities.
If anyone trespasses through this locked door, I will bring criminal charges. Last year while I was out of the office, unauthorized persons entered my locked office and stole paperwork and files from my office. Such criminal activity will not be tolerated again.
I am,
Sam Bucalo
Secretary-Treasurer
When Bucalo returned from suspension, reviewed his video recording device and discovered Webster and two other persons in his office, he filed a police report. Bucalo told our investigator that the police accepted the report but to his knowledge have done nothing further.
Bucalo concedes he has no evidence that any device or program was installed on his computer, phone, any other equipment in his office or elsewhere in his office. He further concedes that he has no evidence that Joint Council 26 was in any way involved in the activity documented in this decision. He stated that he charged Hoffa-Hall 2016 with a Rules violation because his adversaries on the local union executive board support that slate. However, he acknowledges that he has no evidence to tie Hoffa-Hall 2016 to the decision to enter his office or to install surveillance cameras in the hall.
Analysis
The Rules prohibit “[r]etaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed” by the Rules. As the Election Officer has stated:
Since the Rules protect campaign activity as a personal right of members, the exercise of that right cannot be interfered with by labor organizations or employers, including the IBT as an employer.
Hoffa, P812 (August 16, 1996). Therefore, a union is “prohibited from using the electoral preferences or activities of its employees as factors in any employment-related decision.” Pope, 2000 EAD 39 (October 17, 2000), aff’d, 00 EAM 11.
To prevail on a claim of retaliation, “the evidence must demonstrate that 1) the alleged victim engaged in activity protected by the Rules, 2) the charged party took adverse action against the alleged victim, and 3) the protected activity was a motivating factor in the adverse action.” Cooper, 2005 ESD 8 (September 2, 2005). The Election Supervisor will not find retaliation if he concludes that the union officer or entity would have taken the same action even in the absence of the protestor’s protected conduct. Gilmartin, P32 (January 5, 1996), aff’d, 95 EAM 75. See also Miner, 2005 ESD 1 (May 27, 2005); Link, 2011 ESD 207 (April 12, 2011); Leal, P51 (October 3, 1995), aff’d, 95 EAM 30; Wsol, P95 (September 20, 1995), aff’d, 95 EAM 17.
Bucalo alleges that he suffered retaliation for his support of Teamsters United by possible manipulation of his office computer or phone or by possible installation of eavesdropping device(s) in his office. Although proof exists that Webster and two individuals contracted by the local union entered his office specifically to examine it for the presence of surveillance and eavesdropping electronics, we decline to find that this activity constituted “adverse action” necessary to prove a retaliation case. First, the activity did not affect or diminish Bucalo’s duties, responsibilities, compensation, or terms and conditions of employment as business agent or secretary-treasurer. Second, although Bucalo sought to bar entrance to his office during the period of his suspension, he understood that Webster, a superior official of the local union, retained a key to the workspace and could enter it as he reasonably saw fit; accordingly, Bucalo could not reasonably expect that Webster did not retain the right to enter and could not enter the workspace in Bucalo’s absence. Third and perhaps most important for our analysis of this element, the evidence demonstrates that neither Webster nor the contractors made any change to Bucalo’s office or office equipment by entering or while present in the office. Specifically, there is no evidence that any device, software or other eavesdropping system was installed or introduced into Bucalo’s office or onto his office computer or phone; indeed, all the evidence is that no such device, software or system was installed. Bucalo returned from suspension on October 5 and has had opportunity since then to examine his equipment and office himself or to have his workspace and equipment examined by an electronics surveillance professional. Despite this opportunity, he has not produced any evidence to counter that provided by Webster and Clemmer that devices, software or systems were installed in his office or on his office equipment. Accordingly, we find Bucalo suffered no adverse action by the entry of Webster and the contractors and their activity there.
Even were an electronic scan and inspection of Bucalo’s office to constitute adverse action, a conclusion we reject, Bucalo’s burden is to establish a causal connection between his protected activity and the adverse action. He cannot do so for two reasons. First, the evidence establishes that the contractors scanned and inspected the entire union hall, including all offices, common areas, and restrooms. As such, Bucalo was not singled out for such treatment. Second, significant antipathy exists between the executive board majority and Bucalo unrelated to Bucalo’s endorsement of a slate in the International officer election. Examples of this antipathy include the internal union charge the majority brought against Bucalo and the confrontational note Bucalo taped to his office door before beginning the suspension that came from the internal union charge. Under these circumstances, Bucalo has failed to demonstrate that the entry into his office was motivated by his protected activity.
The security cameras placed in the union hall present a more attenuated causation problem for Bucalo. They were installed in a hallway used by officers, staff and visitors accessing the second floor of the union hall and in the general work area where the office clerical staff work. Accordingly, although the cameras can be expected to capture Bucalo’s image as he uses those areas of the union hall, they will capture the images of most other officers and staff as well as visitors using these areas as well. As such, the camera installation does not treat Bucalo differently or adversely as compared with other officers and staff of Local Union 100, and there is no evidence to prove that their installation is in any way connected to Bucalo’s protected activity.
For these reasons, we find no retaliation and 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:
Kathleen A. Roberts
Election Appeals Master
JAMS
620 Eighth Avenue, 34th floor
New York, NY 10018
kroberts@jamsadr.com
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, 1050 17th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kathleen A. Roberts
2015 ESD 44
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
braymond@teamster.org
David J. Hoffa
1701 K Street NW, Ste 350
Washington DC 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
Teamsters United
315 Flatbush Avenue, #501
Brooklyn, NY 11217
info@teamstersunited.org
Louie Nikolaidis
350 West 31st Street, Suite 40
New York, NY 10001
lnikolaidis@lcnlaw.com
Julian Gonzalez
350 West 31st Street, Suite 40
New York, NY 10001
jgonzalez@lcnlaw.com
David O’Brien Suetholz
515 Park Avenue
Louisville, KY 45202
dave@unionsidelawyers.com
Fred Zuckerman
P.O. Box 9493
Louisville, KY 40209
fredzuckerman@aol.com
Sam Bucalo
6158 Kingoak Drive
Cincinnati, OH 45248
sammo1245@aol.com
Teamsters Local Union 100
2100 Oak Drive
Cincinnati, OH 45241
sarahm@teamsterslocal100.com
Dan Walsh
950 Duxbury Court
Cincinnati, OH 45255
djw4947@gmail.com
John Pegula
1434 Greendale Dr.
Pittsburgh, PA 15239
jpegula@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Suite 210
Ann Arbor, MI 48104
EllisonEsq@aol.com