October 24, 1995
VIA UPS OVERNIGHT
Craig Gonsalves
October 24, 1995
Page 1
Craig Gonsalves 4836 Larimer Way Castro Valley, CA 94546
Teamsters Local Union 70 70 Hegenberger Road Oakland, CA 94621 |
| Kim Muniz United Parcel Service 8400 Pardee Street Oakland, CA 94621
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Craig Gonsalves
October 24, 1995
Page 1
Re: Election Office Case No. P-160-LU70-CSF
Gentlepersons:
A pre-election protest was filed with the Election Officer pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Craig Gonsalves, a member of Local Union 70 and a candidate for convention delegate, who alleges that Local Union 70 failed to represent him fairly in the grievance procedure because of its opposition to his candidacy for delegate.
The protester received a notice of discharge due to his alleged failure to conform to his employer’s personal grooming standards. The protester charges that his local union representative failed to present documents and photographs that the protester believed would support his grievance.
Local Union 70 Business Representative Marty Frates, who represented the protester in his grievance, asserts that the materials he declined to present at the grievance hearing “had little value.” Mr. Frates notes that the protester’s proposed discharge was reduced to a five-day suspension. Mr. Frates states, “The results speak for themselves.”
This protest was investigated by Regional Coordinator Matthew D. Ross.
Craig Gonsalves
October 24, 1995
Page 1
The protester is employed by United Parcel Service (“UPS”), which threatened to discharge him because the length of his hair allegedly violated its grooming standards. During the grievance hearing, the protester asked Mr. Frates to produce on behalf of the union, petitions with signatures of fellow employees registering their agreement that the protester had received unfair treatment by UPS, letters of support from other employees, a letter from an attorney consulted by the protester, and photographs of other employees with hair as long or longer than that of the protester.
The grievant agreed, however, that Mr. Frates presented credible evidence at the hearing of disparate treatment from two witnesses with long hair, one of whom testified that he was repeatedly admonished for the length of his hair, but never disciplined despite his refusal to cut his hair.
To prevail in a claim that the union breached its duty of fair representation, the complaining party must demonstrate that the union acted in a manner that was “arbitrary, capricious, or discriminatory.” See In re: Braxton, 91 - Elec. App. - 147 (SA) (May 10, 1991) (citing Thomas v. UPS, 890 F.2d 909, 920-21 (7th Cir. 1989)).
The protester has failed to meet his burden of proof. The proposed documents would have had little weight in the grievance procedure. While the photographs suggested by the protester may be theoretically relevant, the proposition that the photographs might have supported was otherwise established through the testimony presented by Mr. Frates. There can be no doubt that Mr. Frates’ strategic decision did not “undermine[ ] the integrity of the arbitration process.” See In re Braxton, supra.
Accordingly, the protest is DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Craig Gonsalves
October 24, 1995
Page 1
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Matthew D. Ross, Regional Coordinator