Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: SAM BUCALO,                              )           Protest Decision 2016 ESD 191

                                                                        )           Issued: May 4, 2016

            Protestor.                                           )           OES Case No. P-223-031616-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 the Teamsters First slate violated the Rules by distributing campaign material that may be and was affixed to employer property at a First Student facility.

            Election Supervisor representative Dan Walsh investigated this protest.

Findings of Fact and Analysis

Local Union 100 is entitled to election five delegates and two alternate delegates.  Three full slates and one unaffiliated delegate candidate competed for these positions.  The Teamsters United slate was led by protestor Bucalo; the Local 100 Teamsters First slate was comprised of the local union principal officer Dave Webster and was comprised of other officers and business agents; the No More Hoffa slate was a rank-and-file slate.

This protest alleged Rules violations at First Student.  This employer operates four facilities under the jurisdiction of Local Union 100.  At the Hamilton lot on March 10, 2016, Nick Wainscott, a candidate for alternate delegate on Bucalo’s Teamsters United slate, distributed campaign literature on personal time.  He entered the facility and asked the manager if he could place campaign flyers in the break room and the employee mailboxes located in that room.  After the manager learned the nature of the flyers, she told Wainscott it was “absolutely OK” for him to do so.  He left flyers in the break room and placed one in each mailbox.  As he completed this task, he observed another person putting Teamsters First calendars in the same mailboxes.  These calendars measured approximately 4” x 2.5,” read “Teamsters First,” listed Dave Webster and Ron Butts as “President” and “Secretary-Treasurer,” respectively,[1] and had a peel-off adhesive backing.

The person distributing these calendars among the mailboxes was Kym Kelly, a First Student employee, a local union steward, and a member of the local union election committee.  She told our investigator that the mailboxes are used for employer and union communications and for personal things such as garage sales and the like.  Kelly was off duty when she placed the calendars in the mailboxes, as she works the 3 p.m. to midnight “sports pick-up” shift.  She saw a man (presumably Wainscott) placing campaign flyers in the same mailboxes.

Charlotte Smith is a First Student employee at the Beechmont Avenue facility.  She was not a candidate in the delegates and alternate delegates election but will be in the officers election.  She told our investigator she passed out calendars at the Beechmont location during the unpaid break between the two halves of her split shift.  She denied putting the calendars in the mailboxes at Hamilton; however, she said she gave calendars to Kelly to distribute.

Tanya Pace, the assistant manager for First Student at the Hamilton lot, told our investigator that a man (Wainscott) asked and received permission to put campaign material in the mailboxes there. 

No evidence was presented that the calendars were affixed to any employer equipment or buses.  Bucalo told our investigator that it “made sense” to him that the calendars were put to that use, but no witness, including the employer’s Pace, provided any evidence this had occurred.

Article VII, Section 12 (d) of the Rules provide that:

No restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity. Similarly, no restrictions shall be placed upon candidates' or members' preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on employer or Union premises. Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis.

The evidence in this case established that employees at First Student – Hamilton have a preexisting right to use employee mailboxes to campaign.  Workplace mailboxes are used to distribute communications unrelated to work.  Kelly confirmed that she regularly received unofficial material in her workplace mailbox and that the boxes were open to general use. The candidates therefore had a pre-existing right to use the workplace mailboxes to distribute literature, and there is no Rules violation. See Walter, 2001 EAD 525 (October 25, 2001) (no violation to distribute campaign literature in driver cubbyholes at workplace where evidence established pre-existing right to use that facility for campaigning); Zajac, 2011 ESD 173 (March 21, 2011). 

            With respect to the allegation that the calendars were affixed to employer’s property and buses, no evidence supported it.  Bucalo’s intuition is no substitute for evidence.

            Finally, Bucalo claimed that it is unethical for an election committee co-chair to distribute campaign literature.  However, the individual in question is a member and possesses the rights all members have “to participate in campaign activities” (Article VII, Section 12(a)), where the exercise of those rights do not interfere with or compromise her function on the election committee.  We find that distributing campaign material on personal time more than three weeks before the tally of ballots did not impair the co-chair’s election committee function.

For these reasons, 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

            2016 ESD 191

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