Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: TEAMSTERS UNITED,               )           Protest Decision 2016 ESD 98

                                                                        )           Issued: February 1, 2016

            Protestor.                                           )           OES Case No. P-112-011916-GP     

____________________________________)

            Teamsters United 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 a union steward retaliation against a member for the member’s support of Teamsters United.

            Election Supervisor representative Mary Campbell investigated this protest.

Findings of Fact and Analysis

            Article VII, Section 12(a) of the Rules states that “Union members retain the right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.” 

Article VII, Section 12(g) states that “[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 this or any other Article of the Rules is prohibited.”

The protest alleged that, on January 12, 2016, Local Union 104 member Mark Caballero was discussing a grievance he wished to file with steward Mitch Gallagher, when Gallagher observed Teamsters United literature Caballero was holding.  Gallagher asked if Caballero supported Teamsters United; Caballero replied that he did.  At this, according to the protest, Gallagher ceased discussing the grievance, began yelling at Caballero, and took a UPS certificate awarded to Caballero that day and threw it under some machinery where it could not be reached.  The protest contends that these facts constitute prohibited retaliation against Caballero for his support of Teamsters United.

Investigation showed that Caballero approached Gallagher to file a grievance.  According to Caballero, Gallagher looked at the grievance and refused to accept it, saying it was not any good.  Caballero claimed that, during the discussion with Gallagher about the grievance merits, Gallagher noticed Teamsters United material, asked Caballero if he supported that slate, and when Caballero said he did began cursing and shouting at Caballero.  At this, Caballero claimed he showed Gallagher his certificate for 15 years of service received from UPS that day, whereupon Gallagher seized the certificate and threw it under some machinery.

Gallagher told our investigator that Caballero sought to file a grievance about being denied the opportunity to drive a route with a supervisor.  Gallagher said that Caballero could not do so without a “set of browns” (the UPS package car driver uniform) and was denied for this reason.  According to Gallagher, Caballero sought to file a grievance over the matter nonetheless and presented his write-up to Gallagher.  Gallagher said the write-up was generally illegible; in addition, it lacked the dates and names that would be necessary to process it effectively.  Gallagher said he returned the write-up to Caballero, telling him it would have to be rewritten.  Gallagher said Caballero became frustrated at Gallagher and responded by raising his service certificate over his head, then slammed it down on the counter where the two were discussing the grievance.  Gallagher said that Caballero’s action caused some of Gallagher’s papers to fall to the floor.  Gallagher responded by pushing some of Caballero’s papers off the counter onto the floor, the service certificate included.  The unframed certificate slid several feet away, under some machinery.  Gallagher denied that Teamsters United was mentioned or discussed, further denying that he threatened Caballero in any way.  Gallagher said each was speaking loudly to the other, and the incident ended when a UPS manager came over to ask what was going on.

Caballero and Gallagher each told our investigator separately that no other witnesses observed the incident.

A UPS HR representative told our investigator that Caballero filed a complaint against Gallagher over the incident, claiming that Gallagher threw some papers belonging to Caballero, including the service certificate, onto the floor.  The representative said the incident occurred in a portion of the facility not covered by a surveillance camera, and that no other witnesses saw the exchange.  The representative said that Caballero did not complain that Gallagher’s action was motivated by union campaign material or Caballero’s support for particular candidates.  The representative said finally that the certificate has been retrieved and returned to Caballero.

On these facts, we are unable to conclude that Gallagher took any action with the purpose or intent to retaliate against Caballero for the latter’s protected activity.  Accordingly, we find no Rules violation 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, 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

            2016 ESD 98

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):