Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: FRED ZUCKERMAN and            )           Protest Decision 2017 ESD 367

            WILLIAM LOBGER,                     )           Issued: January 13, 2017

                                                                       )           OES Case No. P-339-072916-ME

            Protestors.                                         )          

____________________________________)                      

Fred Zuckerman, candidate for IBT General President on the Teamsters United slate, and William Lobger, member of Local Union 401, jointly 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 Local Union 401 business agent used a union telephone to convey a partisan political message to Lobger, in violation of the Rules.

            Election Supervisor representative Dan Walsh investigated this protest.

Findings of Fact and Analysis

Protestor Lobger drives for YRC Freight under the jurisdiction of Local Union 401.  He also serves as a steward for the local union at that workplace.  On July 29, 2016 in response to a phone message from Local Union 401 business agent Scott Kucharski, Lobger called Kucharski at the local union hall.  According to Lobger, Kucharski asked him if he was involved with the Zuckerman campaign.  Kucharski told Lobger he had heard from a UPS driver that Lobger wanted to campaign at a Local Union 401 UPS worksite.  Lobger replied that he indeed supported Zuckerman.  According to Lobger, Kucharski suggested Lobger not campaign for Zuckerman because Lobger was a union steward and, in Kucharski’s view, it would embarrass the local union to have one of its stewards campaign for Zuckerman when a local union member sits on the UPS bargaining committee.  According to Lobger, the two men then had a polite and professional discussion for some 45 minutes about the campaign and the candidates competing in the election.  Kucharski asked Lobger why Lobger supported Zuckerman; Lobger replied that he was not satisfied with the YRC contract and thought Zuckerman could improve terms and conditions of employment there.  Kucharski pointed out that the YRC contract was ratified by the membership, to which Lobger replied that he had not been employed by YRC at the time of ratification.  Lobger told our representative that Kucharski was respectful, there was no arguing or yelling during the call.  Although Lobger said Kucharski did not make any statements supporting the Hoffa-Hall 2016 slate during the call, Lobger believed Kucharski was attempting to dissuade him from supporting Zuckerman.  Lobger was not dissuaded from that support and continued to support Teamsters United for the balance of the campaign.

Kucharski told our representative that he is a full-time business agent with Local Union 401.  He stated that he called Lobger to discuss a grievance Lobger had filed against YRC.  According to Kucharski, the grievance sought payment for 0.07 hours of wages (the equivalent of $1.35).  He called Lobger to provide him an update on the grievance.  According to Kucharski, his business agent responsibilities include YRC, and he had spoken with the freight manager there about resolving the grievance since it involved a small amount.  Kucharski told our representative that the freight manager said he would discuss the grievance with Lobger, and Kucharski’s call was to ask Lobger whether the discussion had occurred.

Kucharski told our representative that he left a voice message for Lobger on July 28, and Lobger returned the call the next day.  However, between the time that he left the message for Lobger and Lobger called back, Kucharski told our representative that he received a call from a UPS driver who informed him that a Local Union 401 member had approached him and asked what shift hours employees worked at the UPS facility.  The member asked if the person was looking for work; the person replied that, no, he and another member wanted to campaign there for Zuckerman.  Kucharski told our representative that, based on the description and other particulars the caller provided, he thought it might be Lobger who had spoken with the UPS driver, so when Lobger called back on July 29 he asked him. 

Kucharski told our representative that the conversation that ensued between the two men caused him to forget the original purpose of the call, and he never asked Lobger about the grievance.  Instead, the two discussed the campaign, with Kucharski expressing the view that it would be embarrassing to the local union if any union official, including a steward, did not support the Hoffa-Hall 2016 slate.  Kucharski said that Lobger asked whether Kucharski was saying that Lobger should resign his steward position because he supported Zuckerman.  Kucharski replied, “No, you can support whomever you want.”  Kucharski said he asked Lobger what his issues were with Hoffa.  According to Kucharski, Lobger replied that there were a number of things, including the YRC contract, unhappiness with cameras being installed in vehicles, the general environment at YRC, and subcontracting.  Lobger told Kucharski he was afraid that all the electronic data YRC was collecting on its drivers would lead the company to fire them at will.  Kucharski pointed out that language in the contract required cause for discipline, with additional language prohibiting discipline based solely on electronic data. 

Kucharski stated that the phone conversation lasted more than thirty minutes but less than an hour.  It was friendly and professional.  Kucharski told our representative he thought the call constituted legitimate union business because the men discussed the provisions of the YRC contract, with Kucharski attempting to correct what he regarded as Lobger’s misunderstanding or misperception of management rights under the contract.

The protest alleged that Kucharski violated the Rules by discussing the election on union-paid time on a union-provided telephone.  Further, the protest implied that Kucharski coerced or attempted to coerce Lobger in the exercise of his rights to support the candidate of his choice.

Article VII, Section 12(a) grants all union members the right to support or oppose any candidate and to aid any candidate’s campaign, among other things.  The provision bars members from campaigning on work time, incidental campaigning excepted, and further bars members on personal time from campaigning to members who are working.  Article VII, Section 12(b) grants those same rights to union officers and employees, limiting their campaign activity to personal time and campaigning incidental to work.  

Coercion in the exercise of rights is prohibited implicitly by Article VII, Section 12(a), which guarantees each member the right to support any candidate.

We find that Kucharski and Lobger had a lengthy phone conversation while Kucharski was working and while Kucharski was using a union-provided telephone.  Although Lobger placed the call, the contact was initiated by Kucharski, who sought to discuss a grievance Lobger filed.  That purpose was lost and never recovered, however, because Kucharski pursued a different line with Lobger altogether, commencing and carrying on a lengthy call principally on the subject of Lobger’s campaign support for Zuckerman, a discussion in which Lobger participated fully.  During the call, both parties stated their partisan preferences for the candidates they supported and discussed at length their reasons for supporting those candidates.  The men also discussed particular provisions of the YRC contract, a discussion that generally was unrelated to the election.

It is true that Kucharski’s discussion of the election and Lobger’s support for Zuckerman while on union-paid time using a union-provided phone could be seen as a violation of Article VII, Section 12(b) and (c) because his words had the foreseeable effect of influencing, positively or negatively, the election of a candidate.  It also is true that Lobger’s statements in support of Zuckerman and in opposition to Hoffa, made while Lobger was on personal time but when he knew that Kucharski was on union-paid time using a union-provided phone could be seen as violation of Article VII, Section 12(b) and (c) as well.  The better course for Kucharski would have been not to initiate the call on that subject under those circumstances.  The better course for Lobger would have been to end the call once he understood the subject matter.  Neither man pursued the better course, and each made their political points in a cordial and professional manner over a lengthy period.

That the call was lengthy, cordial, and professional compels the conclusion that it was not coercive, and Lobger was not dissuaded from his support for Zuckerman as the result of the call.

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

            2017 ESD 367

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