IN RE: DENNIS R. SPEAK,
Protest Decision 2001 EAD 239
Issued: March 14, 2001
OEA Case No. PR021212SO
Dennis Speak, a member of Local 41 and delegate candidate on the Dennis Speak Team slate (the "DS slate"), 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"). Speak alleges that i) a DS slate handbill was not placed inside a locked, glass-enclosed bulletin board at Consolidated Freightways ("CF"), even though a Phil Young-Jim Hoffa Members First slate (the "YH slate") handbill was posted on the inside, ii) the YH slate has benefited from bumper stickers being affixed to CF office cubicles and vehicles, and c) Local 41 president and non-candidate Phil Young and Local 41 business agent Danny Johnson were granted access to a UPS facility in Kansas City, where they campaigned on behalf of the YH slate.
Election Administrator representative Dolores Hall investigated the protest.
Findings of Fact
1. Concerning the placement of handbills on the inside of enclosed, locked glass bulletin boards, Young initially stated that the local's policy is that campaign literature be placed either under the glass or on the glass. In response to contact by the Election Administrator representative, Young agreed to place Speak's campaign literature under the glass adjacent to the Members First Slate material. Wade Baker, Chief Steward at CF, has the only key to the bulletin board. Baker confirmed that Speak's literature has been placed under the glass.
2. Speak provided photographs that clearly show YH slate bumper stickers attached to the walls of CF office cubicles and on office equipment. Steve Simmons, Assistant Terminal Manager, Consolidated Freightways, provided a copy of an email that the company sent to all their terminals advising of company policy regarding the Rules and campaign activity. The company policy states that CF "can" prohibit the posting of bumper stickers or other campaign signs on company vehicles. Simmons acknowledged that CF had not enforced that prohibition in the past and that Phil Young-Jim Hoffa bumper stickers are stuck everywhere at CF, including one on the door to his office, as well as on company vehicles.
In response to contact by the Election Administrator's representative, Simmons instructed Arlie Williams, a CF steward and delegate candidate on the YH slate, to advise Young that Local 41 members must comply with CF's policy regarding the defacing of company property. Simmons has directed the removal of all bumper stickers and other campaign paraphernalia from CF property with the exception of the union bulletin board and the window of the road drivers' side of the CF facility, where campaign literature from both slates is displayed. Simmons stated that, as road vehicles return to the yard, they are directed to the shop for removal of the offending stickers. Young, as president of Local 41, issued a notice to all members (which is posted on all union bulletin boards) directing that no campaign paraphernalia or stickers be placed on company property or equipment, except authorized bulletin boards.
3. Young and Johnson campaigned inside the UPS facility on February 12, 2001. They have provided copies of pay stubs showing that both used their vacation time to do so. Young stated he met briefly with a supervisor regarding grievances even though on vacation time.
Doyle Clark, a UPS employee and Speak supporter, stated that he and Speak campaigned outside at UPS but were not allowed inside the building. Clark stated that UPS does not allow unescorted non-employees in the building unless they are on union business. Clark stated that Young met with the UPS Pre-Load Manager, Gary Allen, for a short time but remained in the building for approximately 30 minutes.
Allen knew Johnson, who introduced Young to Allen. Allen confirmed that Young entered the building on February 12, talked to several employees, and then met briefly with Allen regarding union business. Allen estimated that Young was in the building for about fifteen to twenty minutes, during which he spoke with Young for about five minutes. Allen stated that he had not seen Young at UPS since he campaigned in 1997. Allen stated that Young and Johnson did not pull any employees from their work areas. We find that Allen considered Young to be campaigning inside the East Center of the facility. We also find that Young's short conversation with Allen was a pretext for entry into an otherwise off-limits facility.
Analysis
With respect to Speak's first allegation, we deem it RESOLVED and remind all parties that both slates must have equal access to bulletin boards, including the inside of glass-enclosed boards.
We also deem the second allegation RESOLVED. CF has ordered the removal of campaign paraphernalia, and Young has issued an appropriate notice to all members directing them not to place campaign paraphernalia or stickers on company property or equipment, except authorized bulletin boards.
We GRANT the protest as to the final allegation. The Rules prohibit employer discrimination in allowing candidates access to employer property. Article VII, Section 11(f). Young and Johnson were given access to the East Center of UPS' facility, where they campaigned, while DS slate campaigners were not allowed inside the facility. We also find that Young has improperly used his position as president of Local 41 to gain access to an area that would otherwise be unavailable.
Remedy
If 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 interfering with the election process.
Based on the foregoing, we order UPS to grant the two representatives of the DS slate access for thirty minutes to the East Center of the facility, and to do so immediately upon their request. During this time, the representatives may speak with UPS employees and solicit support but may not pull any employees away from their work areas. We also order UPS to cease and desist from permitting further unequal access to its property by campaigners in the 2000-2001 delegate election.
Furthermore, we order Young to cease and desist from using his position as Local 41 president to campaign at locations that are not equally accessible to all candidates running for delegate or alternate delegate.
An order of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73 (February 13, 1996).
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 239
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
Dennis Speak
6907 North Brookside
Liberty, MO 64068
Phil Young
IBT Local 41
4501 Van Brunt Blvd.
Kansas City, MO 64130
Danny Johnson
IBT Local 41
4501 Van Brunt Blvd.
Kansas City, MO 64130
Dolores Hall
1000 Belmont Place
Metiarie, LA 70001
Lindsay Marshall
UPS, Inc. Legal Department
55 Glenlake Parkway NE
Atlanta, GA 30328
Gary Tocci
Kim Kaplan
Schnader, Harrison, Segal & Lewis
Suite 3600
1600 Market Street
Philadelphia, PA 19103
Consolidated Freightways
4207 Gardner
Kansas City, MO 64120