Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: RICHARD GALVAN,                   )           Protest Decision 2015 ESD 47

                                                                        )           Issued: November 2, 2015

            Protestor.                                           )           OES Case No. P-047-090815-FW                 

____________________________________)

            Richard Galvan 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 Toni Lara campaigned on work time in violation of the Rules.

            Election Supervisor representative Michael Miller investigated this protest.

Findings of Fact

            The protest alleged that on September 1, 2015, Toni Lara, a Local Union 396 member employed as a UPS package car driver, sold raffle tickets to fellow union members at the UPS Bay Center facility in Westwood, California while she and the other members were working.

Lara told our investigator that on September 2 (not September 1, as alleged), she arrived at the Bay City hub to drop her next-day-air packages at about 5:15.  There she saw a friend and co-worker working the loading/receiving area.  She approached him and said she had raffle tickets if he wanted to buy them from her later.  When he asked if they were for the women’s caucus (Lara is a long-time member of Local Union 396’s women’s caucus), she told him they were for Ron Herrera’s upcoming bid for International office.  Lara said at this the co-worker appeared surprised.  He told her that she could not campaign while she and he were on the clock and in the work area.  Lara said she replied solely with, “I have raffle tickets available.”  She told our investigator she did not have the tickets with her at the time she approached the co-worker, but was only inquiring to see whether he would like to buy some from her later.  The co-worker told her he was not interested, and Lara thought the matter ended there.

Lara said she later learned that Teamsters United slate member Richard Galvan had filed this protest.  Lara told our investigator she knew she had made a mistake in judgement by approaching the co-worker and apologized to our investigator for it.  She saw her action approaching the co-worker as a friend and asking a casual question in passing to see if he was interested in buying tickets from her later.  Lara said she was carrying a basketful of next-day-air packages with her at the time and was in no position to sell tickets.  She was in a hurry to meet her next-day-air rendezvous deadline, and there were other drivers in the lot waiting to do the same thing.  The Bay Center hub was so designed explicitly for next-day-air drop offs, and there was no time for any of the drivers to mill around with the ground staff or to take a break.  Lara said her interaction with the co-worker was in passing and took less than a minute.  Lara repeated that she was “extremely sorry” for the trouble she caused and said she would never do something like this again. 

Lara’s co-worker agreed that the encounter was brief, adding that Lara told him the price of the raffle tickets, the prize for winning, and the campaign purpose.  He told her he was not interested, and she quickly withdrew.  To his knowledge, she did not solicit any other members on that occasion.

Jay Phillips, president of Local Union 396, told our investigator that Lara called him when she first learned the election protest was filed.  She was upset to learn this.  She told Phillips that she had approached a co-worker in early September at the UPS Bay City hub to ask him if he wanted to buy any raffle tickets to help support Herrera’s bid for International office.  She asked Phillips if she had done anything wrong and if she was going to lose her job.  Phillips said he explained to her the Rules provision prohibiting campaigning or solicitation while on company or union time, while on company or union premises, and/or while using company or union equipment.  He told Lara that OES would be in touch with her to obtain her side of the story, and that she should cooperate with our office by telling the truth and answering all their questions.  He reassured Lara that if she had made a mistake and inadvertently tried to sell a raffle ticket while on the job, she would not lose her job.  He cautioned her to avoid campaigning on company time.

Analysis

Article VII, Section 12(a) of the Rules  states that “[n]o candidate or member may campaign during his/her working hours.  Campaigning incidental to work is not, however, violative of this section.”

The exception to the prohibition on campaigning during work hours for “[c]ampaigning incidental to work" recognizes that some activity that literally fits the definition of "campaign activity” inevitably occurs in members’ everyday interactions on the job.  Rosas, 2001 EAD 200 (February 27, 2001) (“The Rules recognize that as employees engage in normal personal interaction while they work, campaigning should not be excluded from what they may talk about.”).  In assessing whether campaign activity is incidental, we look to whether the activity interfered with employees performing their regular work or caused employees to deviate from prescribed duties.  Pinder, 2006 ESD 133 (March 7, 2006) (campaigning found to be incidental where UPS driver distributed flyers to 2 others while loading truck and encouraged them to vote; conduct did not interfere with duties, and all drivers left terminal on time.)  We also consider the duration of the campaigning incident; brief or transient matters are more likely to be held incidental to work.  Pinder (less than 5 minutes); Thompson, 2001 ESD 332 (April 30, 2001), aff'd, 01 EAM 73 (May 24, 2001) (one-on-one campaign exchange that took place while both employees worked together to set a trailer hitch held incidental); Cooper, 2005 ESD 8 (September 2, 2005) (exchange lasting 10 seconds found to be incidental); Gibbs, 2010 ESD 54 (December 9, 2010) (asking for and receiving a campaign postcard held incidental campaigning where exchange took a few seconds); and Joyce, 2011 ESD 111 (February 14, 2011) (brief comment while employee was on her way to lunch was incidental).

We find that Lara’s campaign activity on September 2, 2015 was incidental to her and her co-worker’s work and therefore did not violate the Rules.  It was of very brief duration, was carried out while both performed their duties, and did not cause either to deviate from the work each was performing.

Accordingly, 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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th 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 17^th 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 47  

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Bradley T. Raymond, General Counsel