Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: DAVID FROELICH,                       )           Protest Decision 2016 ESD 99

                                                                        )           Issued: February 3, 2016

            Protestor.                                            )           OES Case No. P-077-010616-CA     

____________________________________)

            David Froelich, member, officer, and delegate candidate in Local Union 987, 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 Bob Brunet violated the Rules by using an employee discount to transmit copies of his nomination and acceptance documents to the local union.

            Election Supervisor representative Jack Sullens investigated this protest.

Findings of Fact and Analysis

Local Union 987 held its nominations meeting January 5, 2016 in Calgary, Alberta.  Seven members were nominated for six delegate seats.  Six delegate candidates, including protestor Froelich, are members of the Strength & Unity slate.[1]  The seventh, Bob Brunet, is unaffiliated.

The protest challenges the nomination of Brunet, arguing that it should be invalidated because Brunet allegedly received an impermissible employer contribution that he used in submitting nomination and acceptance documents.[2]

Brunet was nominated in writing and accepted the nomination in writing.  On Tuesday, December 29, 2015, Rick Chaulk and Brunet delivered the written second and the written acceptance of nomination to the Edmonton, AB office of Local Union 987, a week before the date the nominations meeting would take place in Calgary, some 300 km north.  They delivered them to Wayne Skene, a business agent there.

The next day, Wednesday, December 30, Mark Olson delivered his written nomination to the Edmonton union office.  When Olson delivered the nomination, he requested that the local union staff member receiving it date-stamp and sign the nomination to acknowledge receipt.  According to Olson, the staff member, organizer Akram Ali Shamie, agreed to do so, but said that he needed to photocopy Olson’s identification along with the nomination.  Shamie then stamped and initialed the nomination, copied it and the ID, and returned the copy and the ID to Olson.  Olson asked Shamie to fax and email the written nomination to Froelich, the local union secretary-treasurer, at the Calgary office so that it would be received there before 5 p.m. on Monday, January 4, 2016.  According to Olson, Shamie said he would do his job but suggested that Olson send the nominating document to Froelich directly, just in case.  Shamie gave Olson a business card for Froelich. 

After Olson left the union office, he phoned Brunet to express his concern that the nominating documents might not reach Calgary by the 5 p.m. deadline on January 4.  He suggested to Brunet that a second set of the documents be sent by courier.  Brunet agreed, saying that all three writings could be sent in the same envelope.  Olson observed, given the past treatment the local union had shown Brunet, a courier envelope bearing Brunet’s name on the waybill might not be dealt with fairly.[3]  Brunet replied that he would have Chaulk send the package.

Brunet gathered a second set of the nomination, second, and acceptance for shipment.  A letter from Chaulk but also signed by Brunet and Olson accompanied the documents.  It read as follows:

To whom it may concern:

On December 29^th, myself and Bob Brunet dropped off to Wayne Skene, Business Agent for TLU 987, paperwork to Nominate Bob Brunet as a Delegate for the June 2016 IBT Convention in Las Vegas NV.  On December 30^th, Mark Olson dropped off paperwork for the same, as explained above, to Akrim Ali Shamie, Organizer TLU 987.  I am including the 3 letters today, to ensure that all 3 letters are read aloud at the meeting set for January 5^th 2016, at 8:30 am at TLU 987, 5663 Burleigh CR S.E. Calgary AB.  These letters can be read by any member on our behalf that is present at the meeting.

            On Thursday, December 31, 2015, Brunet took the envelope containing the nominating documents and Chaulk’s cover letter to a Purolator shipping center and sent it to the Calgary office of the union, listing Chaulk’s name and address on the return address.  The package was scanned in at the Edmonton service center on December 31 at 3:46 p.m.; it was received at the Calgary union office on Monday, January 4, 2016 and was signed for by Tania at 10:52 a.m., ahead of the 5 p.m. deadline that day for submission of written nomination documents.

            Under Article II, Section 5(f) of the Rules, written nominations and acceptances must be submitted to the local union secretary-treasurer.  Froelich, the secretary-treasurer (and the protestor here), received the documents and turned them over to Pat Pope, the chair of the local union’s election committee.  Pope is a retired Teamster.  Before retiring, he was president of Local Union 987.[4]

            Pope told our investigator that he received Brunet’s written nominating documents, saw from the waybill that they had been sent from a Purolator service center by Chaulk, a Purolator employee, and concluded that the shipping discount accorded to employees had been misused.  According to Pope, Purolator offers a shipping discount to employees but prohibits use of it “for personal gain.”  Pope theorized that use of the employee discount to send nominating documents to the local union constituted an employer contribution to a candidate, in violation of Article IV, Section 5 of the IBT constitution.

            Pope then contacted Purolator loss prevention to report what he saw as a misuse of the employee discount.  An investigation ensued.  Ken Johnston of Purolator reported back to Pope by email on January 5, the same day as the nominations meeting, as follows:

Hi Pat,

I have looked into your request for information about a package shipped under the name “Rick Chaulk” from our Edmonton Depot.

I can confirm that one of our employee’s [sic] named Bob Brunette [sic] was captured on video purchasing the shipment that matched the pin and description you asked us about.  I can tell you that the regular price on that shipment would be approximately $18 at a minimum, and that Mr. Brunette paid with an employee discount, for an amount of $6.85.  This occurred at 15:46 on December 31^st.

We are conducting an investigation to determine whether or not he used his own employee discount code or Mr. Chaulk’s. the latter would be a violation of our own policy.

Please advise if you require further information.

Ken

Purolator’s policy governing Employee Discount Shipments states that in appreciation for “the contributions of all employees … a price discount will be given on all personal shipments originating in Canada made or received by employees.”  The policy lays out limitations on its use, including that [s]hipments must be of a personal nature (not used to generate revenue).”[5]

Purolator completed its investigation and did not find that Brunet had violated the limitation that requires shipments to be “of a personal nature.”  However, it concluded that he had violated employer policy by shipping the package under Chaulk’s name.  Purolator issued Brunet a written warning for this violation.

Pope turned the results of his inquiry to Purolator over to Froelich, a delegate candidate, who filed this protest. 

Protestor Froelich concedes that use of a courier service to send a second set of nominating documents to the Calgary union office was unnecessary.  He wrote the following in the protest:

All three members [nominator, seconder, and candidate] had previously brought their letters into the Local Unions sub office in Edmonton Alberta, had the letters stamped and signed, as received by the Local office.  There was no need to further send copies of the same letters to the Calgary office however they may have just wanted to make sure they had all of their bases covered.

            We agree that there was no need to send the documents by courier to Calgary.  The delivery of nomination, second, and acceptance to the union office in Edmonton fulfilled the requirements of Article II, Section 5(f) with respect to written nomination and acceptance, and the local union was required by that same provision to “announce and treat the written nomination or second as if it had been made from the floor of such meeting.”  See also, Article II, Section 5(h) with respect to written acceptances.

            Accordingly, Brunet performed a meaningless act by sending the documents to the Calgary office by courier, as the benefit he sought – delivery of written nomination, second, and acceptance to the local union – he had already earned by the documents’ hand-delivery to the Edmonton office.

                Because delivery of the written nomination, second, and acceptance was already accomplished at the time the courier shipment was initiated, we need not decide whether a discount on services that an employer provides uniformly to its employees, regardless of candidacy, is prohibited by the Rules or the IBT constitution, or rather is part of the compensation, similar to wages and other fringe benefits, employees earn by virtue of their employment that may be used as employees see fit.  We note, however, that compensation and benefits a member receives as an attribute of employment generally do not constitute a prohibited employer contribution (or in the case of union employment, a prohibited union contribution).  Thus, in Beck, 2011 ESD 261 (May 22, 2011), we rejected a claim that payment of wages or pension benefits by an employer to a member who is also a candidate constituted an impermissible employer contribution under the Rules.  Thus: 

[W]e reject [the protestor’s] contention that a candidate, whether an employee of the union or of an employer under the union’s jurisdiction, accepts an impermissible campaign contribution in the form of wages or pension benefits in violation of prohibitions on receipt of such contributions set forth in the Rules, the LMRDA, the IBT constitution or other authority.  Payment of wages or pension benefits are compensation for labor provided to the employer by the employee; they do not constitute campaign contributions.  Were [the protestor’s] theory correct that a candidate receives an impermissible campaign contribution from an employer by accepting wages or benefits he or she has earned through labor, all candidates actively employed at the craft would violate the Rules merely by cashing their paychecks.

Similarly, use of an employer-provided facility or service in a workplace to post or distribute campaign material does not constitute a prohibited employer contribution where a pre-existing right exists to use the facility or service.  See, e.g., Hardison, 2011 ESD 198 (April 4, 2011) (posting of campaign flyers by an employee on a general purpose employer-provided bulletin board is protected by the Rules); Zajac, 2011 ESD 173 (March 21, 2011) (distribution of campaign flyers by an employee using open-ended employee mailboxes provided by the employer is no violation); Studd, 2006 ESD 103 (March 29, 2006) (right of an employee to campaign in drivers’ breakroom inside employer premises is no violation); Ferguson, 2011 ESD 132 (February 22, 2011) (use by an employee of an employer-provided email system to send campaign messages is protected where employees are permitted to use email system for personal purposes); Wright, 2006 ESD 361 (October 2, 2006) (local union employees who are permitted personal use of union-supplied vehicles may affix partisan stickers to them).  See also Hoffa Slate, 2001 EAD 370 (May 16, 2001) (campaign use of an airline travel pass provided by airline employer to flight attendant member was permissible under the Rules as use of a contractual benefit of employment; however, transferring a “companion pass” to a non-employee candidate violated the Rules as an impermissible employer contribution to that candidate).

We DENY this protest, finding Brunet’s use of the courier service meaningless given the previous delivery of nomination, second, and acceptance to the Edmonton office. 

Having denied the protest, we express our dismay at the utter lack of neutrality displayed by the election committee chair in this instance in gratuitously prompting an employer investigation of a candidate’s use of a courier service to submit a second set of nominating documents the chair knew were unnecessary to effect the candidate’s nomination.  The committee chair’s role is to administer the election apparatus in a fair, impartial, and even-handed manner by, among other duties, convening the nominations meeting, accepting nominations, giving notice to candidates of election procedures and rights to observe the various stages of the process, and insuring that the electoral choice the members make is fair and democratic.  It does not entitle the chair to investigate or prompt the investigation of conduct he imagines might possibly violate the Rules and then turn the results of that investigation over to a partisan opponent of the candidate.  Such a display of bias on the part of the election chair violates the neutrality he is required to demonstrate.  Any further partisan display will require us to remove the election chair from his position and consider other options for supervision of the delegate election, including direct supervision by OES at the local union’s expense.

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 99

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