December 4, 1996
VIA UPS OVERNIGHT
Jack Barmon
December 4, 1996
Page 1
Jack Barmon
2610-E S. Arlington Mill Drive
Arlington, VA 22206
Tony Cannestro, Jr.
Teamsters Local Union 769
8350 N.W. 7th Avenue
Miami, FL 33150
Tony Cannestro, President
Teamsters Local Union 769
8350 N.W. 7th Avenue
Miami, FL 33150
Jack Barmon
December 4, 1996
Page 1
Re: Election Office Case No. P-1308-LU769-SEC
Gentlemen:
Jack Barmon, a member of Local Union 728, filed a pre-election protest pursuant
to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) alleging that Local Union 769 Business Agent
Tony Cannestro, Jr., campaigned on union time at the Deerfield, Florida facility of UPS on November 22, 1996. He also alleges that Mr. Cannestro and others interfered with his own campaigning at the facility and with the corresponding right of members at the facility to receive Mr. Barmon’s campaign message.
Mr. Cannestro admits campaigning at the Deerfield facility between 8:00 and 9:00 a.m. on the date in question. He states that he did so instead of going to breakfast and therefore was not on time paid by the local union.
This protest was investigated by Regional Coordinator J. Griffin Morgan.
Mr. Barmon states that he arrived at the Deerfield facility at approximately 7:20 a.m. on November 22. He states that he immediately noticed a local union vehicle parked by the gate and two men standing by the guard shack, one of whom he recognized as Mr. Cannestro. He further states that he exchanged words with Mr. Cannestro, who wanted copies of
Jack Barmon
December 4, 1996
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Mr. Barmon’s campaign literature and then said that he would have to stay longer at the facility due to Mr. Barmon’s presence. Mr. Cannestro introduced the other man as a local union steward.
Mr. Barmon further states that he observed Mr. Cannestro and the steward pass into the facility, meet with another steward named Linda Straton, enter the warehouse, and subsequently emerge to conduct union business with a group of other members inside the facility’s fence. He alleges, however, that at approximately 8:00 a.m., Mr. Cannestro,
Ms. Straton, the unnamed steward and others began heckling him from inside the fence. He also alleges that as “[e]ach member took my literature [and] and navigated through the group gathered by the gate, they were persuaded, cajoled, and intimidated into throwing the material on the ground.” He states that the heckling and interference with his campaigning continued until approximately 9:00 a.m., when the group dispersed and Mr. Cannestro departed.
Ms. Straton responds that she, Mr. Cannestro and others were doing “walk arounds” to see if supervisors were working and to ensure that members were not working before their start time. She states that the group also stood by the gate looking for other stewards, that members did hand them Mr. Barmon’s campaign material in order to avoid taking it into the facility and getting into trouble, and that Mr. Cannestro did not engage in campaigning.
The Regional Coordinator subsequently interviewed Mr. Cannestro, who admitted that he campaigned inside the fence from approximately 8:00 a.m. to 9:00 a.m. He states, however, that after working from approximately 7:40 a.m. to 8:00 a.m., he decided to take breakfast but changed his mind when he saw Mr. Barmon campaigning. Thus, he states that he was not on union time during the hour that he campaigned.
Local Union 769 member Javier Aceveo states that Mr. Cannestro encouraged members to throw Mr. Barmon’s campaign material on the ground.
Article VIII, Section 11(b) of the Rules provides:
All Union officers and employees, if members, retain the right to participate in campaign activities . . . However, such campaigning must not involve the expenditure of Union funds. Accordingly, officers and employees (and other members) of the Union may not campaign on time that is paid for by the Union. Campaigning incidental to regular Union business is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is also not violative of this section.
The investigation revealed that the general start time for employees at the Deerfield facility is 9:00 a.m. Therefore, the important time to perform “walk arounds” to ensure that members were not working before their start time was the period before 9:00 a.m., when
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December 4, 1996
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Mr. Cannestro admits that he was campaigning. The Election Officer does not credit his statement that he had originally decided to take breakfast and was therefore off the clock at the time, because taking breakfast between 8:00 a.m. and 9:00 a.m. would have prevented him from performing the local union business that he was ostensibly at the facility to do--at the most important time to do it. While the Election Officer recognizes that local union officers have flexibility in setting meal and break times, such flexibility is not a license to campaign at will. The Election Officer finds on this record that Mr. Cannestro interrupted his work in order to engage in one hour of campaign activity, in violation of the Rules.[1]
Mr. Barmon also alleges that Mr. Cannestro violated the Rules by heckling him and telling other members to discard his campaign material. The Rules do not proscribe “the natural discourse that arises as a result of campaign-related activities,” even if heated. Furst, P-949-LU430-PNJ (October 9, 1996). The Election Officer finds that Mr. Barmon’s allegations of interference, even if accepted at face value, did not “reveal actions by either side that exceeded natural discourse between people with strongly held beliefs.” Powell, P-1086-LU413-CLE (November 20, 1996) (competing campaign rallies in local union parking lot not improper).
For the foregoing reasons, the protest is GRANTED with respect to Mr. Cannestro’s campaigning on time paid by the local union and DENIED in all other respects.
When the Election Officer determines that the Rules have been violated, she “may
take whatever remedial action is appropriate.” Article XIV, Section 4. In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.
The Election Officer orders Mr. Cannestro, within two (2) days of the date of this decision, to reimburse Local Union 769 for one hour of his time, calculated by dividing his weekly salary by 40. Within two (2) days of making such reimbursement, Mr. Cannestro shall file an affidavit with the Election Officer demonstrating compliance with this order, including a statement of his weekly salary and a copy of his reimbursement check to the local union.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).
Jack Barmon
December 4, 1996
Page 1
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
J. Griffin Morgan, Regional Coordinator
[1]Mr. Cannestro was joined in that activity by Ms. Straton and the unidentified steward. Those persons did not begin work until 9:00 a.m. and, thus, were properly on their own time while they campaigned.