Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: KELLEY McNALLY,                   )           Protest Decision 2016 ESD 237

                                                                        )           Issued: June 7, 2016

            Protestor.                                           )           OES Case No. P-201-030316-NE     

____________________________________)                                                                  

Kelley McNally, member of Local Union 251, 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 Paul Santos, Brooke Reeves, and the elected leadership of Local Union 251 impermissibly retaliated against her for activity protected by the Rules.

Election Supervisor representative Peter Marks investigated this protest.

Findings of Fact

Local Union 251 is entitled to elect seven delegates and two alternate delegates to the IBT convention.  At the local union’s January 16, 2016 nominations meeting, candidates forming two full slates – the Teamsters United and the Teamsters Strong slates – were nominated to compete for these positions.  Protestor McNally was a delegate candidate on the Teamsters Strong slate.  Santos, Reeves, and several elected leaders of Local Union 251 were members of the Teamsters United slate.  The tally conducted March 19, 2016, showed that all candidates on Teamsters United polled more votes than any candidate on Teamsters Strong.  The narrowest margin of victory between a winning and losing candidate was 591 votes in the delegate race out of 1,711 cast – a 35% margin of victory. 

Protestor McNally and the principal respondent, Reeves, are both employed full-time by Rhode Island Hospital (RIH).  Reeves also fills the role of “liaison,” a quasi-union steward.

The protest, filed March 3, 2016, alleged that on March 1, 2016, human resources personnel of Rhode Island Hospital placed McNally on paid, administrative suspension while they conducted an investigation of alleged misconduct.  The protest asserted that Santos and Reeves took actions that caused RIH to discipline McNally, and that Santos and Reeves’s actions were motivated by McNally’s delegate candidacy on the Teamsters Strong slate.

According to McNally’s protest, she picked up one ream-size box of prescription paper from the in-house RIH print shop on February 9, 2016 and carried it to the RIH emergency department where she works as a senior unit secretary.  McNally stated that one box was placed in a supply room (the box could not be located in a later search).  McNally stated that she was observed carrying the box by two employees of RIH’s transport unit, who McNally believes contacted Reeves to state that McNally was seen with two boxes.  McNally asserted that Santos, who is Local Union 251’s elected president and a full-time business agent, contacted the hospital and asked that the matter be reviewed to determine whether RIH’s print shop had printed campaign flyers for McNally’s Teamsters Strong slate instead of the prescription paper that McNally said had been printed.  According to McNally, she was contacted by a hospital investigator who asked what was in the box; McNally replied that the contents was prescription paper, directing the investigator to the print shop for a receipt or work order that would verify what was printed.

            By comparison, Reeves’s recounting of events was that in early February 2016, a member approached her with a concern that McNally was seen leaving the RIH print shop carrying two ream-size boxes with “McNally” printed on the side.  Based on Reeves’s personal experience with RIH’s transition from paper to electronic medical records, she thought it “odd” that the emergency department would need printed forms or materials in such quantity and was suspicious that the print shop had instead produced campaign material for McNally.  Reeves said she raised the issue with Santos, and Santos contacted the print shop manager, Mario Luis, to inquire whether the print shop was producing anything for Teamsters Strong.  Luis denied doing so.

            Santos then went to Lou Sperling, a labor relations official with RIH, with the same concerns about the boxes that McNally was seen carrying out of the print shop.  Sperling followed up with Luis and asked what was printed; Luis produced a receipt dated February 15, 2016 for two boxes of “RX paper.”  At this point, RIH apparently accepted McNally’s explanation of her conduct and took no action against her, and Santos appears to have taken no further action in the matter.

Reeves, however, was not satisfied with this explanation.  As a unit secretary employed at RIH, Reeves said she knew first-hand that RX paper was rarely used. 

Accordingly, at some time after the February 15 receipt was produced and before February 23, 2016, Reeves approached Lindsay McKeever, a manager in the emergency department, who denied that prescription paper was used there, denying further that McNally had been asked to order some.  According to Reeves, McKeever stated that another employee in the emergency department had prescription pads in her office, they had been there for some time and were rarely used, and there was no reason to order more.  Also according to Reeves, McKeever looked for the boxes of paper McNally had picked up from the print shop and could not find them.

            Reeves reported this information directly to RIH’s Sperling.  Not satisfied with Sperling’s response, Reeves emailed her allegations concerning the prescription paper (apparently missing by that point) and the conjecture that the RIH print shop may have produced material for the Teamsters Strong slate to managers at the hospital.  Reeves stated that she wrote “as not only a candidate on the United Action delegate slate but also a concerned employee of Rhode Island Hospital,” and was alerting RIH to concerns about McNally, whom she identified as “an employee and member of our opposing slate.”

            On March 1, McNally was summoned to RIH human resources and questioned about the whereabouts of the boxes.  McNally denied any knowledge of what happened to the boxes and their contents.  She was placed on administrative suspension that day, pending further investigation.  Following the investigation, RIH issued “corrective action” to McNally on March 10, 2016 that concluded the following, in part, viz.

• That she ordered RX paper from the print shop;
• That she did not follow “the usual and customary departmental procedure for ordering RX paper;”
• That she “did not properly secure the RX paper in compliance with the usual and customary departmental procedure;”
• That the RX paper could not be found “and is presumed missing notwithstanding a thorough and comprehensive search of the Emergency Department”; and
• That as a result, McNally has been directed to apply for equivalent vacant unit secretary positions in other departments as they become available, will accept such a position if offered, and will not seek to return to the emergency department under its current leadership.

The “corrective action” also set out a procedure for McNally to apply for and obtain a position as a unit secretary in a RIH department or unit other than the emergency department. 

            McNally acknowledged receipt of the terms of the corrective action, waived the right to union representation at the meeting with human resources at which they were presented, and then filed a grievance protesting the action.  The “corrective action” does not mention the delegate election.  It does not contain any finding that the Teamsters Strong slate had anything printed at the RIH print shop.  The findings relate solely to failure to follow RIH procedures to account for and secure RX paper. 

            Teamsters Strong produced to our investigator a receipt for campaign flyers printed at campaign expense at Express Printing in Fall River, MA.

McNally told our investigator that “[t]he protest has nothing to do with the discipline that the hospital has imposed on me, I am dealing with that in other ways,” principally through a grievance that she initiated at Step 2 of the contractual procedure and which she intends to advance “all the way to Arbitration.”  McNally asserts, however, that “if Brooke Reeves had never investigated me … I would have No discipline at all.  We were in the middle of an election to which she decided to retaliate against me and attempt to get me out of the election by trying to get me fired.”

Analysis

            Article VII, Section 12(g) of the Rules prohibits “[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.”

            To establish a violation of this provision, “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) (emphasis added).  See also, Bundrant, 2005 ESD 19 (October 25, 2005), aff’d, 05 EAM 4 (November 15, 2005); and Miner, 2005 ESD 1 (May 27, 2005).

            McNally clearly satisfies the first element of this retaliation case.  She was a candidate for delegate and was actively promoting her candidacy during the period that the investigation into her conduct began and continued.

            Turning to the second element, we conclude that RIH took adverse employment action against McNally in the form of the “corrective action,” even though McNally apparently has lost no compensation as the result of the action.  The employer has made a finding that McNally violated employer-promulgated rules by failing to follow procedures for ordering and safeguarding RX paper; further, the employer has directed McNally to seek a reassignment to an equivalent position outside the emergency department.  We conclude that the employer’s finding of misconduct and remedial directive are sufficient to satisfy the requirement that McNally suffer adverse employment action in order to pursue a protest alleging impermissible retaliation.

            However, McNally’s protest does not charge impermissible retaliation on the part of RIH, and she has stated in express terms that her protest “has nothing to do with the discipline that the hospital imposed on me.”  The RIH employment action, the merits of which concern compliance with hospital policies and procedures independent of and unrelated to the delegate election or McNally’s candidate status, is not a basis for relief under the Rules in this case.

            Reeves also took adverse action against McNally by bringing McNally’s alleged misconduct to the attention of RIH supervisors.  The substance of Reeves’s report concerned what Reeves believed to be violations of RIH policies – either that McNally used RIH’s print shop for a personal purpose or that RX paper had been improperly produced and had gone missing.  The employer’s corrective action, silent on this subject, effectively ruled out that McNally had used the RIH print shop for a personal purpose, printing campaign material.  However, the corrective action found two violations of employer policies, first that McNally had not followed appropriate procedure when ordering the RX paper, and second that she had not properly safeguarded the RX paper after it was produced. 

McNally alleged that Reeves was motivated to report McNally’s alleged misconduct to the employer because of McNally’s candidacy, and that is supported by Reeves’s statement that she made the report in part as “a candidate on the United Action delegate slate.”  Reeves explicitly invoked her status as a delegate candidate, and McNally’s status as an opposing candidate, as a predicate for RIH to consider the allegations. 

An employee does not violate the Rules by reporting job-based misconduct to the employer simply because the subject of the report is a candidate in the International union election or an active supporter of a candidate.  An employee cannot be immunized from reports of misconduct on the job, or consequent discipline, merely by taking on such a candidacy or engaging in active support of a candidate.  Reeves, however, did more than that by invoking the delegate election context as a predicate for the employer to consider disciplinary action against her political opponent.[1]  While there is no basis to conclude that the candidate status of Reeves or McNally motivated RIH’s actions on the merits of McNally’s conduct, Reeves explicitly cited the delegate election, and candidate status, when she brought the allegations to the attention of managers at RIH.  In contrast, Santos committed no Rules violation.  While he brought allegations of job-related misconduct to the employer’s attention, there is no evidence that he invoked the delegate election, or candidate status as a reason or predicate for employer action. 

Accordingly, we GRANT this protest.

Remedy

When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.”  Article XIII, Section 4.  In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.  “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.”  Hailstone & Martinez, 10 EAM 7 (September 14, 2010).

McNally’s protest focuses on Reeves’s improper invocation of the delegate election as a predicate for reporting the allegations to the employer.  The merits of the RIH disciplinary decision is separate from the Rules violation and McNally will address that in an appropriate forum.  For the Rules violation, we direct Reeves to cease and desist from referencing or invoking election-related activities as a predicate for reports of job-related misconduct.  We further order Local Union 251 to post the attached notice on all union bulletin boards, and in a prominent position on the local union’s web page.  The posting shall be completed no later than Monday, June 13, 2016, and the local union shall file a declaration of compliance no later than June 15, 2016.  The postings shall remain in place through and including July 15, 2016 and shall not be defaced or covered up.

It is a serious offense to retaliate against a member for exercising rights protected by the Rules.  The notice posting remedy is adopted here in consideration of the specific nature of this Rules violation.  We do not read the anti-retaliation provisions to make the reporting to the employer of job-related misconduct, alone, a Rules violation.  We specifically considered whether to subject Reeves to disqualification – “by nature, an anti-democratic remedy,” Cheatem, Post-27 (November 17, 1997) (Conboy, Election Appeals Master) – and conclude it is not appropriate to this case.  While a disciplinary process followed Reeves’s report to RIH and that has affected McNally personally, Reeves’s action did not involve impeding voter access to candidates, physical violence, misuse of union resources, or false statements to the OES.  Misconduct of that nature threatens the integrity of the process for expressing voter intent and has warranted disqualification in past cases.  See Del Viehland, 2006 ESD 271 (May 23, 2006) (disqualification for knowingly providing inaccurate, out-of-date worksite lists); Fauth, Raisor and Reynolds, 2016 ESD 176 (April 20, 2016), aff’d 2016 EAM 19 (May 2, 2016) (disqualification for use of physical force and verbal threats of further violence); Cheatem, Post-27 (November 17, 1997) (secret use of union funds to support incumbent campaign); Reyes, 2011 ESD 281 (June 11. 2011) (disqualification for conduct evincing “flagrant disrespect for election rules” and for providing “conspicuously false and misleading responses” to the OES investigator).  Reeves’s conduct does not approach that level.  We conclude that a notice posting explaining the violation and the governing rules is proportional to the violation found. 

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within three (3) 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 237

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 31^st Street, Suite 40

New York, NY 10001

lnikolaidis@lcnlaw.com

Julian Gonzalez

350 West 31^st 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

Kelley McNally

Kmcnalls2007@yahoo.com

Brooke Reeves

brookeellenr@gmail.com

Matt Taibi, Secretary-Treasurer

Teamsters Local Union 251

121 Brightridge Avenue

East Providence, RI 02914

mtaibi.ibt251@gmail.com

Peter Marks

116 Nagle St

Harrisburg, PA 17104

pmarks@ibtvote.org

Jeffrey Ellison

214 S. Main Street, Suite 212

Ann Arbor, MI 48104

EllisonEsq@aol.com