Protest Decisions

              January 14, 1997

VIA UPS OVERNIGHT

Johnnie Robinson

January 14, 1997

Page 1

Johnnie Robinson

14811 Grant Street

Dolton, IL 60419

Gerald Zero, Secretary-Treasurer

Teamsters Local Union 705

1645 W. Jackson Boulevard

Chicago, IL 60612

Bennie Jackson

Teamsters Local Union 705

1645 W. Jackson Boulevard

Chicago, IL 60612

Lupe Estrada

Teamsters Local Union 705

1645 W. Jackson Boulevard

Chicago, IL 60612

Phil Goines

United Parcel Service

1400 S. Jefferson Street

Chicago, IL 60607

Martin Wald

Schnader, Harrison, Segal & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Johnnie Robinson

January 14, 1997

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Re:  Election Office Case Nos.              P-1101-LU705-CHI

P-1214-LU705-CHI

Gentlemen:

Johnnie Robinson, a member of Local Union 705, filed related pre-election protests pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International

Johnnie Robinson

January 14, 1997

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Union Delegate and Officer Election (“Rules”) against Local Union 705 and his employer, United Parcel Service (“UPS”), alleging discrimination and harassment due to his support for James P. Hoffa, a candidate for general president.  In P-1101-LU705-CHI, Mr. Robinson charged that, due to his support of Mr. Hoffa and his filing of an earlier protest against a local union steward, Local Union 705 Steward Lupe Estrada and Recording Secretary Bennie Jackson failed to properly represent him in a series of disciplinary actions taken by UPS.  He also charged that Mr. Estrada conspired with UPS managers to have the protester and other Hoffa supporters terminated during the election period.[1]  In P-1214-LU705-CHI, Mr. Robinson asserted that UPS terminated him on November 7, 1996 due to his support of Mr. Hoffa and that other reasons asserted by UPS are pretextual.

UPS responds that Mr. Robinson was terminated for excessive absenteeism.

Local Union 705 stated that Mr. Robinson had received numerous warnings about his absenteeism.  The local union states that the protester was terminated on November 7 for two separate offenses:  failure to work as directed and absenteeism.  The local union states that it properly represented Mr. Robinson by filing grievances over his termination and previous suspensions.

These protests were investigated by Regional Coordinator Julie E. Hamos.

Mr. Robinson was employed as a sorter at a UPS facility on South Jefferson Street in Chicago, Illinois from April 25, 1993 until his discharge on November 7, 1997.  The investigation revealed several disciplinary actions against Mr. Robinson by UPS. 

On September 26, 1996, UPS Manager Phil Goines asked Mr. Robinson to leave the sorting line and report to Mr. Goines’s office after allegedly hearing Mr. Robinson use profanity.  Mr. Robinson states that he used profanity because boxes fell on him while working.  He also states that he was entitled to have a local union representative present when talking to

Mr. Goines and therefore did not immediately report to Mr. Goines’s office.  In the disciplinary report, Mr. Goines states that the protester’s failure to report to his office constituted a failure to work as directed.  When Mr. Robinson returned to Mr. Goines’s office with Mr. Estrada,

Mr. Goines placed Mr. Robinson on 30-day probation for failing to work as directed. 

Mr. Goines’s report states that he advised the protester that the next time he failed to work as directed, he would be suspended.  Mr. Robinson alleges that Mr. Estrada insisted that

Mr. Robinson accept the discipline based upon his prior record.

On October 15, 1996, Mr. Goines placed the protester on a one-day suspension, to be served on October 17, “for not working as directed.”  At that time, Mr. Robinson related in the discipline that he was unaware that he would be suspended the next time he was disciplined as a result of the 30-day probation on September 26.

According to the protester, Mr. Jackson went to Mr. Goines and asked that

Johnnie Robinson

January 14, 1997

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Mr. Robinson’s suspension on October 17 be delayed until after the grievance hearing concerning the suspension on October 23.  UPS did not agree, and when Mr. Robinson reported to work on October 17, he was called into a meeting with Mr. Goines and other UPS managers.  Steward Joe Rodriguez was present and Mr. Jackson participated via speaker phone.  Following a discussion, Mr. Jackson suggested Mr. Robinson serve the ordered October 17 suspension, but continue to pursue his grievance.  Messrs. Goines and Rodriguez escorted Mr. Robinson from the facility.

When Mr. Robinson returned to work on October 18, UPS Supervisor Lenice Arnold wrote him up for not working as directed.  Ms. Arnold stated in her report that she attempted several times to have Mr. Robinson change the way he was standing at the sorting belt and that he refused, causing work stoppages.  Later, on October 18, after a meeting with UPS Supervisor Gray and Mr. Rodriguez, Mr. Robinson received a notice of termination for failing to work as directed.[2]

On October 21, UPS reports that Mr. Robinson was absent from work without calling in and, on October 22, Mr. Robinson called in sick. 

On October 23, 1996, a grievance hearing was held on seven separate grievances filed

by and on behalf of the protester.  The grievances included the disciplinary incidents on September 26, October 15 and October 18.  He was represented by Mr. Jackson and

Lorelei Anderson, a member of Local Union 705.[3]  Mr. Robinson states that he discovered at this hearing that an additional grievance had been filed on his behalf concerning a letter dated September 24, 1996 from UPS Division Manager John McIntosh concerning excessive absenteeism.[4]  At the hearing, Mr. Robinson received another notice of termination, dated October 22, 1996, for excessive absenteeism.  A grievance meeting on this termination notice for excessive absenteeism was scheduled for November 6, 1996.  Mr. Jackson and Ms. Anderson advised Mr. Robinson that he needed to assemble his documentation concerning his absences for this November 6, 1996 grievance meeting.

On November 4, 1996, Mr. Robinson punched in for work one minute late, at 7:31 a.m., and was told by Supervisor Arnold that she did not need him.  Mr. Robinson complained to

Mr. Estrada, who intervened and Mr. Robinson was put to work at 10:15 a.m.

When the protester arrived at work on November 6, Ms. Arnold told him to leave. 

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January 14, 1997

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Mr. Robinson found Mr. Jackson, who instructed him to wait in the lunchroom.  At 10:00 a.m., Mr. Jackson came to the lunchroom and told Mr. Robinson that a grievance hearing on his termination was to be held that day and the local union needed the documentation on his absences.  Mr. Robinson states that this hearing was not supposed to be held on November 6, but during the week of October 28, 1996.  When Mr. Robinson replied that the documentation was at home, Mr. Robinson stated that Mr. Jackson asked him to go home and return by noon with

the papers.  Mr. Robinson contends he had not been advised that the hearing would be on November 6.

Local Union 705 asserts that Mr. Jackson informed Mr. Robinson about the November 6 hearing on a number of occasions, including on October 23 and on November 4 when

Mr. Jackson intervened on the protester’s behalf with management.  According to the local union, on November 6, when Mr. Jackson learned from Mr. Robinson that he did not have the documentation with him, Mr. Jackson told him the hearing could proceed anyway because the parties could deadlock at the first step and present documentation at the next step in the grievance process.  The local union states that Mr. Robinson insisted on going home to retrieve his paperwork and therefore missed the grievance hearing.  Local Union 705 states that the union and management deadlocked and forwarded his grievance to the next step.

Mr. Robinson was terminated from his job on November 7, 1996.

The pre-arbitration grievance panel met on November 21, 1996 with Mr. Robinson in attendance.  According to Local Union 705, the panel considered two grievances filed by

Mr. Robinson over his termination for failing to work as directed and excessive absenteeism.  The panel rescinded the notice on failing to work as directed and sustained the notice of termination for excessive absenteeism.[5]  Mr. Robinson claims that the purpose of the

November 21 hearing was only to consider his termination for failing to work as directed and that he was never notified that his termination for absenteeism would also be considered.

Mr. Robinson argues that this series of events demonstrates that the local union and UPS repeatedly acted against him in retaliation for his support of Mr. Hoffa.  He also claimed in his protest that Mr. Estrada conspired with UPS managers to have other Hoffa supporters terminated.  Mr. Robinson did not present any evidence that other supporters of Mr. Hoffa were disciplined or terminated.

The Rules, at Article VIII, Section 11(f), prohibit “[r]etaliation or threat of retaliation by . . . any subordinate body . . . any employer or other person or entity against a Union member . . . for exercising any right guaranteed by this or any other Article of the Rules.”  To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the decision or the conduct in dispute.  The Election Officer will not find retaliation if she concludes that the local union or employer would have taken the same action even in the absence of the protester’s protected conduct.  Gilmartin, P-032-LU245-PNJ (January 5, 1996), aff’d,

95 - Elec. App. - 75 (February 6, 1996).  See Leal, P-051-IBT-CSF (October 3, 1995), aff’d,

Johnnie Robinson

January 14, 1997

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95 - Elec. App. - 30 (KC) (October 30, 1995); Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995).

The Rules and these applicable principles require the establishment of three elements before any allegation of retaliation can be sustained:

(1)              Showing that the protester was engaged in an activity protected by the Rules;

(2)              Showing that the charged party had actual or constructive knowledge that the protester was so engaged; and

(3)              The activity which is protected by the Rules was a motivating factor in causing the adverse action.              

Mr. Robinson is a well known and outspoken supporter of Mr. Hoffa.  The Election Officer finds that Local Union 705 was aware of Mr. Robinson’s views, particularly in light of the earlier protest he filed with the Election Officer.  There is no evidence that UPS was aware of Mr. Robinson’s support of Mr.  Hoffa.  Even if so apprised, however, the Election Officer finds that UPS has proven that it would have taken the disciplinary actions against Mr. Robinson absent any activity in support of Mr. Hoffa.

UPS submitted ample evidence to justify its action in terminating Mr. Robinson for excessive absenteeism.[6]  UPS stated that the protester had 31 absences during 1996, of which,

28 were for “no call, no show.”  UPS further stated that during 1996, Mr. Robinson arrived late for work 59 times.  UPS Labor Relations Manager Jerry Nerone stated to the investigator that the protester “has one of the worst attendance records” he had seen.  Mr. Nerone’s statements are supported by a February 22, 1996 warning letter to Mr. Robinson from Mr. McIntosh stating that from the period January 5 through February 2, 1996, he was absent from work two days and

late for work eight times, and a second and final warning letter from Mr. McIntosh dated September 24, 1996 previously described above.  UPS noted that Mr. Robinson’s attendance problem continued even during the time period involved in the protests:  on October 21,

Mr. Robinson was “no call, no show,” and he called in sick on October 22, October 28 and November 5.

Mr. Robinson contends that he never received the letter dated September 24, 1996 addressed to him from Mr. McIntosh, nor did the company ever warn him that his absenteeism could result in termination.  Even if Mr. Robinson did not receive this letter, the Election Officer finds that Mr. Robinson should have realized, in light of his record, that his attendance was a problem that could engender disciplinary action. 

Johnnie Robinson

January 14, 1997

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The Election Officer finds that the representation by Messrs. Estrada and Jackson of

Mr. Robinson was not compromised by his support for Mr. Hoffa or by his action in filing an earlier protest.  Rather, the evidence shows that Messrs. Estrada and Jackson acted properly and within the scope of their duties.  In fact, by the protester’s own account, on November 4,

Mr. Jackson quickly intervened with management to keep Mr. Robinson on the job.  Moreover, at the hearing on November 21, 1996, the termination for the protester’s failure to work as directed was rescinded.  Furthermore, the local union made efforts to ensure that Mr. Robinson’s evidence on absenteeism would be considered during the prearbitration grievance panel.  In light of the evidence presented on the absenteeism issue, the union did not act unreasonably in failing to deadlock on that issue.

The Election Officer concludes that UPS would have terminated Mr. Robinson even in the absence of his protected conduct, and that Messrs. Estrada and Jackson did not collude with management to violate his rights or retaliate against the protester, in violation of the Rules.    

For the foregoing reasons, the protests are 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

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 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

Julie E. Hamos, Regional Coordinator