N RE: FRANK HALSTEAD,
Protest Decision 2001 EAD 79
Issued: January 10, 2001
OEA Case No. PR122101WE
Frank W. Halstead, a member of Local 572, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules")against the Hoffa Unity Slate (the "Hoffa slate") and Local 572 alleging that Local 572 business representatives Clare Butterfield and Louis Mireles violated Article VII, Section 11(d) of the Rules by removing campaign postings supporting the Tom Leedham Rank and File Power Slate (the "Leedham slate") from the union bulletin boards at Ralph's Grocery Company's Perishable Service Center in Compton, California ("Ralph's").
Election Administrator representative Dolly Gee investigated the protest.
Findings of Fact
The protestor is an employee of Ralph's. There are four union bulletin boards there. Local 572 does not dispute that these boards have traditionally been used to post IBT campaign literature. Halstead has noticed that campaign literature postings supporting the Leedham slate have disappeared from these bulletin boards when Butterfield and Mireles have visited Ralph's. He inferred that they were responsible for the removal.
Halstead had no witnesses to the removal of the Leedham postings until an incident on December 20, 2000. Then, two Ralph's employees who have spoken to our investigator saw Butterfield, in the company of Mireles, tear down a Leedham flyer from one of the four union bulletin boards. When confronted about this by Local 572 members, Mireles countered, "That's political propaganda."
Local 572's counsel, Fern Steiner, submitted a position statement to our investigator. It acknowledged that the business agents had removed a Leedham flyer from the Ralph's bulletin board on December 20, 2000, and acknowledged that they should not have done so. Steiner further stated that the trustee for Local 572, Rick Middleton, has instructed all business agents that they are not to remove any campaign literature from any union bulletin board.
Analysis
Article VII, Section 11(d) of the Rules provides that "[n]o restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity. … Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis."
Past practice governs bulletin board issues. Rodriguez, P348 (February 1, 1996); Meyer, P130 (October 12, 1995); Blake, P953 (October 30, 1991). Where there is no past practice, then absent present discrimination against a candidate there is no Rules violation when access to union or employer bulletin boards is denied. Lambert, P359 (February 26, 1996). Conversely, when the past practice has been to allow campaign postings, the removal or defacement of properly posted campaign literature violates Article VII, Section 11(d). Blake, supra; Amadio, P1073 (November 20, 1991).
Here, it is undisputed that Butterfield and Mireles removed Leedham campaign literature from at least one union bulletin board at Ralph's on December 20, 2000, and it is quite possible that they did so on other occasions, as Halstead alleges. Since the past practice as to the union bulletin boards at Ralph's was to allow the posting of IBT campaign literature, Butterfield's and Mireles' conduct violated Article VII, Section 11(d). As held in Blake, supra, such conduct is "a serious violation of the Rules." Further, Butterfield and Mireles violated Article VII, Section 11(b) of the Rules by removing Leedham campaign literature from the Ralph's union bulletin boards, and thus engaging in campaign-related activity, while on time paid for by their local union employer.[1]
For the foregoing reasons, the protest is GRANTED.
Remedy
When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interference with the election process.
Here, Local 572's trustee has instructed the local's business representatives to refrain from any future removal of campaign literature from in-plant bulletin boards. We have taken this into consideration, but we still believe that a Notice posting is required here to inform members of their posting rights and to warn members and other persons of the serious nature of removing or defacing such postings.
Accordingly, we direct that the attached Notice be immediately posted on all four union bulletin boards at Ralph's for a period of thirty days from the day of posting, and further direct that Butterfield and Mireles file an affidavit with the Election Administrator within three (3) days of posting attesting to their compliance with this directive, with a further affidavit to be filed by them attesting to the full posting required herein within three (3) days after the end of the posting period.
We further direct that Butterfield and Mireles each pay the sum of ten dollars to Local 572 within three business days of the date of this decision as reimbursement to the local union for their campaign-related activity while on union paid time, and that they provide the Election Administrator with proof of payment within three (3) business days after payment is made. We further direct Butterfield and Mireles to cease and desist from conduct of the type found to violate the Rules here.
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 in any such appeal upon evidence that was not presented to the Office of the Election Administrator. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th
Street, NW, 10th Floor, Washington, DC 20005, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2001 EAD 79
NOTICE TO MEMBERS OF TEAMSTERS LOCAL 572 FROM THE ELECTION ADMINISTRATOR FOR THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Under the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"), you have the right to participate in campaign activities for delegate candidates for the 2001 IBT Convention and International officer candidates in the election that will follow the Convention.
Under the Rules, you also have the right to post campaign material on union bulletin boards at Ralph's Compton, California facility, since those bulletin boards have been used in the past for similar postings. Any removal or defacement of campaign literature properly posted on these union bulletin boards by any person is a serious violation of the Rules.
The Election Administrator has found that properly posted campaign materials in support of International officer candidate Tom Leedham have been removed from the union bulletin boards at Ralph's by Local 572 business representatives Clare Butterfield and Louis Mireles, and has directed them to cease such activities. The Election Administrator has further directed Mireles and Butterfield to reimburse Local 572 in the amount of $10.00 each because their conduct in removing the Leedham campaign literature constituted campaign activity on paid union time.
Any protest you may have regarding your rights to engage in campaign activities or interference with those rights under the Rules should be filed with the Election Administrator within the time period prescribed by the Rules.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
This is an official notice from the Election Administrator for the International Brotherhood of Teamsters and must remain posted for 30 consecutive days from the day of posting, and must not be altered, defaced or covered by any other material.
DISTRIBUTION LIST VIA FACSIMILE AND UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
645 Griswold
Penobscot Building
Suite 1800
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
IBT Local 572
450 Carson Plaza Drive
Carson, CA 90746
Fern M. Steiner
Tosdal, Levine, Smith & Steiner
600 B Street
Suite 2100
San Diego, CA 92101
Frank Halstead
260 LaFollette Drive
Los Angeles, CA 90042
[1] We find no evidence of a Rules violation by the Hoffa slate here.