Protest Decisions

IN RE: GAIL McDONNELL ,
Protest Decision 2001 EAD 205
Issued: March 1, 2001
OEA Case No. PR020813MW

See also Election Appeals Master decision 01 EAM 46 (KC)

Gail McDonnell, a member of Local 89, 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"). McDonnell alleges that Local 89 business agent Ben Bramble told her supervisor to remove campaign bumper stickers that she posted on two bulletin boards at her job facility.

Election Administrator representative Lisa Sonia Taylor investigated this protest.

McDonnell is a lab tester with Smurfit Stone Container in Louisville, Kentucky and a candidate for delegate. She claims that upon the advice of Ben Bramble, Kevin Conley, a manager at Smurfit, instructed Susan Wilbur, a supervisor, to remove her campaign bumper stickers from a general-use bulletin board situated in the lab. McDonnell also claims that her campaign materials were removed from a union bulletin board at Smurfit.

Findings of Fact and Analysis

There is one designated union bulletin board at the Smurfit facility that is used for union business and other general purposes. Other bulletin boards at the facility include a bulletin board in the lab, a scheduling board and a company bulletin board located near the offices.

On February 6, 2001, after McDonnell's bumper stickers were removed from the bulletin board in the lab and the union board, she told Conley that she had a right to post campaign materials on the boards and gave him a copy of the Rules. Conley allowed McDonnell to replace the bumper sticker on the bulletin board in the lab until he could consult with the Human Resources department and the corporate offices. On February 13, 2001, the company decided that the campaign materials could not be posted on company bulletin boards, including the board in the lab.

McDonnell and Loretta DeVasier, a former steward at Smurfit and a supporter of the McDonnell campaign, stated that the bulletin board in the lab is a general-use bulletin board. They stated that candidates in prior elections have posted campaign material on the lab board as well as the union board.

Conley stated that the labor agreement provides for a union bulletin board. The company expects all union related materials to be posted on the union board. He denied that the company ever allowed campaign literature on the company bulletin board. He stated that if such materials are posted on company boards, they are removed.

Wilbur stated that the board in the lab is generally used for the posting of personal items and that employees are free to post materials on this board without the company's permission. However, Wilbur stated that she had no idea what the company policy regarding the posting of campaign materials was because the company had never dealt with this issue.

Although the company admitted responsibility for the removal of the bumper sticker from the board in the lab, both Conley and Wilbur deny that the company removed materials from the union board. McDonnell suggested that the union was involved in the removal of the bumper stickers. She stated that in her conversation with Conley on February 6, 2001, he told her that Bramble advised him that the union does not approve of campaign materials and he could remove them from the bulletin boards. Although Conley denied that the company acted under the direction of the local, Bramble confirmed that he spoke with Tim Wilholt, the production manager at the facility, and told him that the union does not allow campaign materials for delegate elections on union bulletin boards.

Bramble stated that Local 89 prohibits the posting of campaign literature for delegate elections on any union bulletin board. However, Bramble was unable to verify whether this policy was in effect during prior elections.

Article VIII, Section 11(d) of the Rules states that "[n]o restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity." Where there has been a practice of using a bulletin board for general purposes, union members have a right to use it for campaign purposes even if the board has not previously been so used. Cassella, P794 (July 15, 1996). Wilbur's statement makes clear that the bulletin board in the lab was used for general purposes. We so find. McDonnell, therefore, had a preexisting right to post campaign materials on it.

We credit McDonnell's and DeVasier's statements that the union bulletin board was also used for general purposes and that campaign materials were posted on it during prior elections. McDonnell, therefore, had a preexisting right to post campaign materials on it.

We also find that representatives of both Smurfit and Local 89 interfered with McDonnell's right to post campaign materials on these boards. This protest is, therefore, 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. To remedy this violation, we hereby order:

1. Smurfit Stone to cease and desist from removing campaign literature relating to the 2000-2001 IBT International Union Delegate and Officer Election from its bulletin board in the lab.

2. Local 89 to cease and desist from removing or facilitating the removal of campaign literature relating to the 2000-2001 IBT International Union Delegate and Officer Election.

3. Local 89 to immediately post the attached Notice on the union board at the Smurfit Stone facility on Enterprise Drive, for a period of thirty (30) days from the day of posting.

4. Fred E. Zuckerman, President of Local 89, to file an affidavit with the Election Administrator within two (2) days of said posting attesting to his compliance with this directive, with a further affidavit to be filed by him attesting to the full posting required herein within two (2) days after the end of the posting period.

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 upon evidence that was not presented to the Office of the Election Administrator in any such appeal. 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 the parties listed above, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15^th Street, N.W., 10^th Floor, Washington, D.C. 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 205

DISTRIBUTION LIST (BY UPS NEXT DAY AIR UNLESS OTHERWISE SPECIFIED):

NOTICE TO MEMBERS OF TEAMSTERS LOCAL 89

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 bulletin boards if those bulletin boards have been used in the past for similar postings. Any removal or defacement of campaign literature properly posted on these bulletin boards by any person is a serious violation of the Rules.

The Election Administrator has found that properly posted campaign materials have been removed from the union bulletin board and the bulletin board in the lab at Smurfit Stone Container. The Election Administrator has directed Smurfit Stone and Local 89 to cease and desist from the removal of campaign materials on these boards.

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.