IN RE: DAVID THORNSBERRY,
Protest Decision 2001 EAD 234
Issued: March 13, 2001
OEA Case No. PR030711MW
David Thornsberry, campaign manager and delegate candidate on the United Rank & File slate at 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"). Thornsberry alleges that Jones Plastic and Engineering Company ("Jones") and a Local 89 steward violated Article VII, Section 11(e) of the Rules by denying him and another Local 89 member access to an employee parking lot for the purpose of campaigning among Local 89 members. Thornsberry also alleges that when he refused to leave, a Jones supervisor threatened to call the police and instructed employees not to talk to the campaigners nor take their literature.
Election Administrator representative Jason Weidenfeld investigated the protest.
Findings of Fact
In DeVasier, 2001 EAD 197 (February 27, 2001), we found that on January 30, 2001 members of Local 89 had been denied access to Jones' parking lot. We resolved that protest after Joe Weis, Jones's corporate director of personnel, agreed that Jones would grant the parking lot access provided for by the Rules. Local 89 received a copy of our decision on February 28, 2001.
On March 6, 2001, at around 7:00 p.m., Thornsberry and Darrell Hall arrived at Jones to campaign. Jones had received prior notice that the campaigners would be arriving that evening. According to Jones shift supervisor Janice Toles, Local 89 steward Glenna Hinderer informed her that the campaigners were on the property and needed to be run off. Toles says that Hinderer told the campaigners to leave the property. Toles was unsure what was allowed under the DeVasier resolution and did not address the campaigners directly, which frustrated Hinderer. She asked Toles to call Weis, who Hinderer incorrectly believed would support her position. Toles would not call Weis, so Hinderer informed Toles that the former shift supervisor Ricky Rogalinski would be asked to run the campaigners off the property if Toles would not do it. Toles did not run the protestors off the property, so Hinderer found Rogalinski.
Rogalinski was unaware of the DeVasier resolution. To the best of his knowledge, Jones had not altered its general stance of refusing access to its property. When Hinderer informed Rogalinski that campaigners had improperly entered Jones' property, Rogalinski told the campaigners to leave. They refused, and Rogalinski threatened to call the police. The campaigners still refused to leave. At this point, Rogalinski says that Hinderer told the protestors that the employees were not going to take the campaigners' literature. Rogalinski claims that he did not tell the employees not to take the literature.
When contacted by our investigator, Weis admits that the protesters were improperly asked to leave the premises. Weis apologized for the incident, explained that Rogalinski had inadvertently not been informed about the protesters' rights, offered a written apology to the protesters, and said that he would be happy to assure Local 89 members that the problem would not recur.
Hinderer has not offered comment on the protest. Our investigator has tried to locate Hinderer but has not received assistance from Local 89. Business agent Ben Bramble told our investigator on March 12, 2001 that he would provide address and/or phone information but has not done so. According to Weis, he gave Hinderer the Election Administrator's phone number. She has not called.
Analysis
Jones' refusal to grant parking lot access contradicts Weis' agreement referenced in DeVasier and violates Article VII, Section 11(e) of the Rules. This section grants members of a local union the authority to "distribute literature and/or solicit support" on behalf of a delegate or alternate delegate candidate in any parking lot used by local union members in connection with their employment. Furthermore, Rogalinski's threat to call the police constitutes impermissible interference with members' exercise of their rights under the Rules. Article VII, Section 11(g).
Likewise, Local 89's interference with its members' campaigning rights violates Article VII, Section 11 of the Rules.
Accordingly, we GRANT the protest.
Remedy
When the Election Administrator determines that the Rules have been violated, he "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator views the nature and seriousness of the violation as well as its potential for interfering with the election process.
To remedy Jones' violation, we hereby order Jones to:
1. Cease and desist from its noncompliance with the resolution reached in DeVasier, supra;
2. Cease and desist from threatening to retaliate against Local 89 members seeking to assert their rights under DeVasier; and
3. Explain immediately the parameters of the DeVasier resolution to all supervisors, managers and security personnel in writing, and send a copy of this writing to the Election Administrator at the address set forth below, so that it is received by no later than March 21, 2001.
The remedy for Local 89's violation must not be restricted to the facts of this protest because we find that Local 89 representatives, along with employers of Local 89 members, have shown a pattern of Rules violations. In Thornsberry, 2000 EAD 48 (November 17, 2000), aff'd, 00 EAM 12 (December 12, 2000), we found, inter alia, that Local 89 business agents violated the Rules by soliciting accreditation signatures on union-paid time in favor of the Hoffa campaign. DeVasier, supra, resolved the first violation at Jones. Our investigation of that protest found that the campaigners had clearly been denied access to Jones' property. In McDonnell, 2001 EAD 205 (March 1, 2001), we found that representatives of both Smurfit Stone Container and Local 89 interfered with IBT members' preexisting right to post campaign materials. And, finally, in Thornsberry, 2001 EAD 208 (March 2, 2001), we resolved a protest arising from American Greetings Corporation's refusal to grant access to its parking lots. In that case, American Greetings initially responded to the protest by claiming that campaigning on any American Greetings property would be prohibited. American Greetings subsequently revised its position.
In light of the ongoing campaigning difficulties experienced by Local 89 members at several facilities and Local 89's active role in many of these cases, we order the following remedy to ensure a "fair, honest, open and informed election" contemplated by Article XIII, Section 4 of the Rules:
1. Local 89 must post the attached Notice by March 19, 2001, on all bulletin boards on which members have a general right to post information, for a period of thirty (30) days from the date of posting;
2. Fred E. Zuckerman, President of Local 89, must file an affidavit with the Election Administrator within two (2) days of the required notice posting attesting to his compliance with such posting, 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;
3. Local 89 must inform all of its representatives and employees in a written communication, to be received by March 19, 2001, that they must not interfere with any member's right to post campaign materials on local union bulletin boards or on other bulletin boards to which members have a general right to post information. In the same written communication, Local 89 must inform its representatives and employees that no one may interfere with a member's right to campaign in the parking lots of employers of Local 89 members; and
4. Zuckerman must file an affidavit with the Election Administrator within two (2) days of mailing the written communication, attesting to his compliance with this directive.
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 all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street NW, Tenth Floor, Washington, DC 20005 (facsimile: 202-454-1501), all within the time 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 234
DISTRIBUTION LIST VIA 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
Penobscot Building
Suite 1800
645 Griswold
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
Fred E. Zuckerman
President, IBT Local 89
3813 Taylor Blvd.
Louisville, KY 40215
David Thornsberry
10403 Truman Way
Louisville, KY 40299
Joe Weis
Corporate Director of Personnel
Jones Plastic & Engineering Company
2410 Plantside Dr.
Louisville, KY 40299
Dennis M. Sarsany
1829 Eddy St.
Chicago, IL 60657
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.
You have a right of access to the parking lots of employers of Local 89 members for the purpose of campaigning on behalf of a candidate for delegate or alternate delegate. You also have the right to hand out or receive leaflets or other materials from members campaigning at such a parking lot. Any interference with these rights is a serious violation of the Rules.
You have the right to post campaign material on bulletin boards that 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 Local 89 members seeking to exercise their rights under the Rules have been unable to do so on several occasions and that in some instances Local 89 representatives have played an active role in this. The Election Administrator has directed Local 89 to cease and desist from interfering with members' campaigning rights.
Any protest you may have regarding interference with your right to engage in campaign activities or other rights under the Rules should be filed with the Election Administrator within the time 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.