Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: CHRIS TOOLE,                              )           Protest Decision 2020 ESD 12

                                                                        )           Issued: August 25, 2020

Protestor.                                           )           OES Case No. P-015-073020-NE

____________________________________)

Chris Toole, member of Local Union 118, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that John Bulgaro, president and principal officer of Local Union 294, and Jeff Palmerino, a shop steward, threatened and harassed supporters of the Teamster Power slate who were campaigning in the parking lot of a UPS hub in Gloversville NY.

Election Supervisor representative Peter Marks investigated this protest.

Findings of Fact

Paul Markwitz, member and principal officer of Local Union 118 in Rochester NY, is a candidate for East region vice president on the Teamster Power slate.  On July 29, 2020, he and Dave Weilert, another member and business agent of the local union, traveled some 200 miles to the UPS Amsterdam distribution center in Gloversville NY to canvass for accreditation signatures in support of the Teamster Power slate.  Markwitz and Weilert arrived at the employee parking lot and began canvassing members at 8:15 or 8:20 a.m.  They stood in the parking lot adjacent to the entrance employees use to enter the workplace.

Markwitz texted Local Union 294’s Bulgaro at 8:39 a.m., some twenty minutes after arriving at UPS Amsterdam, and stated, “Hello John.  Just a courtesy message that I will be in the Albany area collecting signatures.  Paul.”  Markwitz’s text did not identify the locations the petitioners would visit and, pointedly, did not specify his present location at UPS Amsterdam.  Bulgaro texted promptly in reply: “Enjoy Ups Amsterdam.”

A short time later, a person subsequently identified as union steward Jeff Palmerino drove into the parking lot and stopped his vehicle several feet from where the canvassers were speaking with a member.  According to the canvassers, Palmerino shouted to the member, “Don’t sign their petitions!  They’re with Hoffa!”[1] The member speaking with the canvassers then demurred, telling them, “I can’t sign.  That’s my steward.,” and walked away.  According to the canvassers, Palmerino parked his truck, entered the building where he remained for a brief period, then emerged to the parking lot near the canvassers.  There, according to the canvassers, he attempted to intercept members as they approached the canvassers, escorting some on a wide berth around the canvassers and into the building, using hand gestures to signal others that they not sign, and telling members who were speaking with the canvassers not to sign the petitions.  On an occasion where a member stopped to speak with the canvassers, Palmerino moved toward that member, who noticed Palmerino and reacted by walking away without signing.  According to the canvassers, Palmerino engaged in these actions continuously until members gathered for the PCM meeting[2], which began shortly before 9:30 a.m., more than a half hour after he arrived at the worksite.

Unlike all other members reporting to the worksite that day who wore UPS uniforms, Palmerino was not in uniform; rather, he wore street clothes.  He had sustained an injury and was off work on workers’ compensation.  As such, he was unable to perform any work for the company and, for that reason, was not permitted to be present on the site to perform union steward duties.[3] 

Although not permitted on site to work or perform union business, Palmerino remained a member in good standing and therefore had the right under the Rules to come onto the parking lot to campaign.  In that vein, when Palmerino arrived at the site he did not distribute campaign literature or simply speak for or against a candidate; rather, he engaged in conduct to keep members from hearing the canvassers’ message or signing their petitions. After Palmerino continued this behavior for some time, Markwitz complained to him about what Markwitz called his discourtesy in interfering with their canvassing, stating, “At least I had the courtesy of letting the principal officer of 294 know we were coming.”  According to Markwitz, Palmerino responded, “I know that.  He already called me.”

Palmerino denied to our investigator that he told members not to sign the petitions or otherwise attempted to influence them in that regard.  He said he came to the site that day for union business, to warn members about their use of social media, informing them that a member had been discharged for posting information about the company on social media.  Palmerino stated that he addressed the day shift employees when they had assembled for the daily PCM meeting that management conducted.  Palmerino denied that he said anything to the employees about the canvassers on the parking lot when he spoke to them about the social media issue.

Despite what the canvassers said were Palmerino’s efforts to keep members from speaking with them and signing their petition, the canvassers spoke with Ozzie Martucci for a few minutes and obtained his signature.  Martucci is a long-time Teamster and past officer of former Local Union 669, which was merged into Local Union 294 several years ago.  He signed the petition while Palmerino watched.  Martucci then walked into the building.  Several minutes later, Martucci received a phone call from principal officer Bulgaro. 

Martucci and Bulgaro have known each other for years, owing to their respective local union leadership positions.  Each had the other’s cell phone number.  Prior to the July 29, 2020 phone call, Martucci said he had last spoken with Bulgaro prior to Labor Day 2019, concerning the use of Local Union 294’s truck in the local Labor Day parade, for which Martucci had leadership responsibility.  When Martucci answered the call from Bulgaro early on July 29, Bulgaro told Martucci the call was an accident.  Rather than simply hang up, however, Bulgaro told Martucci not to sign the petition.  Martucci replied that he already had.  According to the canvassers, Martucci emerged to the parking lot and told the canvassers he had just received a phone call from Bulgaro directing him not to sign the petition.

Bulgaro told our investigator that he learned of the canvassers’ activity when he received the courtesy text from Markwitz.  He stated he also heard about the canvassers from Tom Quackenbush, secretary-treasurer (non-principal officer) of Local Union 294.  Quackenbush identified Palmerino as his information source.  Bulgaro told our investigator that his call to Martucci was an accident; he said he attempted to call for service on his car with Otto Cadillac and hit Martucci’s number by mistake.  Bulgaro said Martucci volunteered to him that he had signed the petition.  Bulgaro said he replied to Martucci that “we are supporting” the O’Brien-Zuckerman 2021 slate.  Bulgaro explained to our investigator that “we” meant the officers and agents of the local union. 

In warm weather months the PCM is usually held outdoors in an area close to where the canvassers were seeking signatures that day.  Markwitz saw employees begin to gather for the meeting and told some employees that he and Weilert would move out of the way so the PCM could proceed.  Instead, Palmerino moved the meeting to another area of the parking lot more than 50 yards away, away from the doors to the workplace and out of the canvassers’ hearing.  When Markwitz asked why the meeting location was moved, an assistant steward told him, “Because you’re here.”  Although the canvassers could not hear what was discussed during the PCM, they did observe Palmerino look and gesture in their direction while he was addressing the group. 

The canvassers left UPS Amsterdam shortly after the shift started at 9:30 a.m.  Markwitz texted Bulgaro, “Went well.  Met some good guys.”  Bulgaro replied immediately, “Including Ozzie,” referring to Martucci.

The only signature the canvassers obtained at UPS Amsterdam was Martucci’s.

Analysis

Markwitz and Weilert exercised their rights under Article VII, Section 12 of the Rules to campaign on the parking lot of UPS Amsterdam on July 29, 2020.  Section 12(a) of that article granted them the right “to aid or campaign for any candidate.”  Section 12(e) granted Markwitz, as a candidate for International office, and Weilert, as a union member within the regional area in which Markwitz is seeking office, the right to “distribute literature and/or otherwise solicit support in connection with such candidacy in any parking lot used by Union members to park their vehicles in connection with their employment.” 

While Markwitz and Weilert had the right to present a campaign message, the members working at UPS Amsterdam also had the right to hear that message.  Thus, Section 12(a) declares that “members of the Union shall have the reciprocal right to hear or otherwise receive such campaign advocacy.”  Section 12(e) declares that “each member of the International Union who is employed within the regional area(s) in which said candidate is seeking office has the reciprocal right to receive such literature and/or solicitation of support from such candidate for International office or candidate’s advocate.”

Palmerino had the right to advocate as well.  Thus, he could present a message for a candidate he favored and/or a counter-message against a candidate he opposed.  Palmerino as a union member had the same campaign access to the parking lot as Markwitz and Weilert had.  If Palmerino had limited his actions to campaign advocacy that members enjoy in employee parking lots, we would find no violation.

We find that Palmerino steered and shepherded members past the canvassers in order to interfere with the canvassers’ right to advocate and to deprive the members he escorted of their right to hear the canvassers’ campaign advocacy.  We find that he approached other members who were hearing the canvassers’ advocacy and directed them not to sign the petitions, either by oral directive or by gestures.  In engaging in this behavior, Palmerino used his status as union steward effectively to interfere with campaign rights.    

Use of union status to interfere with campaigners’ rights to campaign and members’ rights to hear the advocacy was found to violate the Rules in Thornsberry, 2005 ESD 13 (October 8, 2005), aff’d, 05 EAM 3 (November 4, 2005) (business agent violated the Rules by collecting campaign flyers from members, where the members knew the business agent had responsibility for their worksite and surrendered the flyers to him on account of the office he held).  We find that Palmerino violated the same principle here. The members he steered around the campaigners submitted to that action because of his status, just as did the members who disengaged from the canvassers when Palmerino appeared and spoke to them.

We also find that Palmerino did not act solely on his own initiative.  Rather, he acted either at the instruction or encouragement of principal officer Bulgaro.

In reaching these conclusions, we credit the canvassers and Martucci and do not credit Palmerino and Bulgaro.  We find that Palmerino was not permitted on the worksite by the employer because of his medical condition, whether as an employee or a union steward, and that he went there when he did at least in part because he was made aware that the canvassers were on site seeking petition signatures.  While Palmerino could have engaged in counter-campaigning, his actions went beyond that to conduct that obstructed the exercise of campaign rights by others.  For more than a half hour from the moment he arrived through the time the canvassers departed, Palmerino’s principal activity was to disrupt and interfere with the canvassers’ protected activity.  He used his status as union steward to do so, as demonstrated by members’ statements and actions in disengaging with canvassers when he appeared.  We do not credit Palmerino’s denial of such activity, which took place over an extended period and involved multiple actions and statements on his part.

We also do not credit Bulgaro’s claim that the phone call to Martucci was accidental.  The events leading to it – Markwitz’s courtesy text message to Bulgaro, Palmerino’s statement to Markwitz that Bulgaro had called him about the text, Martucci’s signing of the petition in front of Palmerino – are persuasive that Bulgaro called Martucci intentionally to criticize him for signing.  Martucci and Bulgaro had not spoken in some ten months, and it is not credible that Bulgaro’s finger slipped to Martucci’s name from Otto Cadillac minutes after Martucci signed the petition Bulgaro did not wish him to sign.  Were Bulgaro’s call simply a “wrong number,” as Bulgaro claimed, we expect he would have ended the call quickly.  Instead, he began the call with Martucci by saying the dialing was accidental, and then told him not to sign the petition.  We find that Bulgaro, in league with Palmerino, called Martucci with the intention that the message would spread to avoid the canvassers.

We do not credit Palmerino’s claim that, when he spoke to the members immediately before the PCM, he did not criticize the canvassers.  We find, based on the facts that he looked at the canvassers and gestured toward them while addressing the gathering, that he discussed them in connection with the PCM.  Given his behavior over the previous half hour, we find that his statements were critical of the canvassers’ activity.

Palmerino’s behavior at the gathering for the PCM is relevant to our analysis because he should not have been conducting the pre-PCM at all.  Thus, even though he could not perform a steward function at the time, he cloaked himself in union authority to conduct a union meeting and used that to engage in partisan conduct.  Palmerino led the gathering in his role as steward, the ranking union official on site, ostensibly to address the members concerning terms and conditions of employment.  Although the PCM itself is employer sponsored and led, the moments immediately before the PCM when Palmerino addressed the members about conduct were a union meeting conducted for mutual aid and protection.  Article VII, Section 5(a)(4) emphasizes the requirement that unions are to remain neutral in the election.  Thus:

A Local Union shall not discriminate or permit discrimination in favor of or against any candidate in conjunction with its meetings or otherwise.  This requirement shall apply not only to formal presentations by or on behalf of candidates but also to informal campaign activities, such as, for example, comments on candidates during meetings, literature distribution at meetings, literature distribution tables, etc.

This provision applies equally to monthly membership meetings of a local union as well as craft and “stand-up” meetings a business agent or steward may conduct at a worksite.  See, e.g., Brannan, P-029-LU344-NCE (absent advance notice to candidates, local unions may not permit their meetings to be used for campaigning, which is “a solicitation of support for a candidate or slate of candidates or an attempt to sway support from an opposing candidate or slate”); Wigley, P668 (April 18, 1996) (disparaging opposition during union meeting constitutes illegal campaigning); Hardison, 2006 ESD 115 (February 27, 2006) (disparaging comments about candidate).  Palmerino’s conduct of the pre-PCM violated this anti-discrimination provision. 

            For the reasons stated, 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).

We order the following remedy:

1. Local Union 294, its officers, employees, and representatives, including stewards, shall cease and desist from interfering with the rights of members and candidates to campaign and advocate for candidates in accordance with the Rules, and from interfering with the rights of members to hear or receive that advocacy.

1. Local Union 294 shall post on all worksite bulletin boards under its jurisdiction at UPS Amsterdam the notice attached to this decision.  The posting shall be completed within two days of the date this decision issues and shall remain posted through and including September 25, 2020.  The notice shall not be damaged, defaced, or covered up during the period it is required to be posted.  The local union is ordered to provide a declaration of notice posting to the Election Supervisor within two days following its posting.

1. Local Union 294 shall guarantee and pay the full printing and first-class mailing costs of a one-page, two-sided color mailing by Markwitz to all local union members employed at UPS Amsterdam on a date of Markwitz’s choosing no later than September 30, 2020.  Markwitz may delegate his entitlement to this remedy to the Teamster Power slate.  Within two days of the date this decision issues, the local union is ordered to supply to the Election Supervisor a current mailing list for the members employed at UPS Amsterdam.  The Election Supervisor will in turn supply the list to a mailhouse designated by Markwitz under arrangements that prevent Markwitz or any other candidate from obtaining or possessing the list.  The Election Supervisor will resolve disputes concerning this aspect of the order.  This order for a campaign mailing is strictly remedial in nature and is intended to restore the level playing field upset when the local union impermissibly interfered with campaign rights.

A remedial order of the Election Supervisor takes immediate effect unless stayed.  Lopez, 96 EAM 73 (February 13, 1996).

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.  Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i).  All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor.  Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Barbara Jones

Election Appeals Master

IBTappealsmaster@bracewell.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, all within the time prescribed above.  Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision.  A copy of the protest must accompany the request for hearing.

                                                                  Richard W. Mark

                                                                  Election Supervisor

cc:        Barbara Jones

Office of the Election Supervisor
for the International Brotherhood of Teamsters
1990 M Street, N.W., Suite 650
Washington, D.C. 20036
844-428-8683 Toll Free
202-925-8922 Facsimile
electionsupervisor@ibtvote.org
www.ibtvote.org

Richard W. Mark
Election Supervisor

NOTICE OF ELECTION RULES VIOLATION BY

TEAMSTERS LOCAL UNION 294

TO: All Teamster members employed at UPS Amsterdam

Members and candidates have the right under the Election Rules to campaign on employer parking lots where members park their vehicles.  Members have the right to hear and receive that campaign advocacy.

The Election Supervisor has found that Teamsters Local Union 294 principal officer John Bulgaro and Teamsters Local Union 294 steward Jeff Palmerino violated the Election Rules on July 29, 2020, by using their union positions to interfere with campaign activity by supporters of the Teamster Power slate.  Such activity impermissibly prevented the campaigners from engaging with members and impermissibly interfered with members’ rights to hear and receive that advocacy.

The Election Supervisor will not tolerate violation of the Rules.  The Election Supervisor has ordered Teamsters Local Union 294 to post this Notice on all worksite bulletin boards under the local union’s jurisdiction at UPS Amsterdam to inform members of the Rules’ requirements and the violation found.  The Election Supervisor has also ordered Teamsters Local Union 294 to pay the cost of a campaign mailing for the candidate it interfered with. 

The Election Supervisor has issued this decision in Toole, 2020 ESD 12 (August 25, 2020). You may read this decision at https://www.ibtvote.org/Protest-Decisions/esd2020/2020esd012.

Any protest you have regarding your rights under the Election Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, 1990 M Street, N.W., Suite 650, Washington, D.C. 20036, telephone: 844-429-8683, fax: 202-925-8922, email: electionsupervisor@ibtvote.org.

This notice must remain posted through and including September 25, 2020 and must not be damaged, defaced, or covered up.

DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

braymond@teamster.org

Edward Gleason

egleason@gleasonlawdc.com

Patrick Szymanski

szymanskip@me.com

Will Bloom

wbloom@dsgchicago.com

Tom Geoghegan

tgeoghegan@dsgchicago.com

Rob Colone

rmcolone@hotmail.com

Barbara Harvey

blmharvey@sbcglobal.net

Kevin Moore

Mooregp2021@gmail.com

F.C. “Chris” Silvera

fitzverity@aol.com

Fred Zuckerman

fredzuckerman@aol.com

Ken Paff

Teamsters for a Democratic Union

ken@tdu.org

Chris Toole

Team118@rochester.rr.com

Paul Markwitz

Markwitz2021@gmail.com

Dave Weiland

davewpw@hotmail.com

John Bulgaro

jbulgaro@teamsterslocal294.org

Craig Holmes

cholmes@ups.com

Peter Marks

pmarks@ibtvote.org

Jeffrey Ellison

EllisonEsq@gmail.com