IN RE: DONALD RAY HARDISON, Protestor.
Protest Decision 2006 ESD 116
Issued: February 27, 2006
OES Case No. P-06-131-020806-AT
(See also Election Appeals Master decision 06 EAM 20)
Donald Ray Hardison, a member of Local Union 822, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). Hardison alleged that James Wright, President of Local 822 and Hardison's opponent in the delegate election removed Hardison's campaign material from the windshields of vehicles parked in the employee parking lot at Yellow Freight and Gwaltney/Smithfield Foods shortly after Hardison had placed the campaign material on the vehicles.
Election Supervisor representative J. Griffin Morgan investigated this protest.
Findings of Fact
On February 7, 2006, Donald Hardison witnessed James Wright remove campaign material from the windshields of vehicles parked at a Yellow Freight terminal shortly after Hardison had placed the campaign material on the vehicles. Hardison then returned to the parking lot of another employer, Gwaltney/Smithfield Foods, where he had earlier placed literature and found that his campaign literature had been removed from over 100 vehicles.
Wright stated that he received several complaints from members that literature was being placed on their cars. Wright stated that on February 7 while meeting with Adrian Dent of the Human Resources Department at Gwaltney/Smithfield Foods, Dent asked him about "the guy in the parking lot" placing flyers on the windshields of employees' cars. Dent said that a guard had spoken to the leafletter, who had identified himself as a "union representative." Dent did not state that leafleting cars violated employer policy nor did he ask Wright to remove the literature. Nonetheless, Wright went out to the parking lot and removed the literature from the vehicles. He placed the campaign literature in the employee breakroom.
Wright then went to Yellow Freight for a grievance meeting. When he arrived he saw campaign literature on the vehicles in the employee parking lot. Shop steward Dexter Stevens told him, "I don't want any shit on my car." Wright then removed the campaign literature and placed it in the employee breakroom and had Stevens post one of the flyers on the bulletin board. No one from the employer told Wright that leafleting vehicles violated employer policy; likewise no one from the employer asked Wright to remove the literature.
Analysis
The Rules provide that each member has the freedom to exercise his/her political rights, including the right to distribute campaign literature free from interference. Rules, Article VII, Section 12.
The Rules permit a candidate for delegate or alternate delegate and any member of the candidate's Local Union to distribute literature and otherwise solicit support in connection with such candidacy in any parking lot used by that local union's members to park their vehicles in connection with their employment.
(e) Subject to the limitations in this Subsection, (i) a candidate for delegate or alternate delegate and any member of the candidate's Local Union may distribute literature and/or otherwise solicit support in connection with such candidacy in any parking lot used by that Local Union's members to part their vehicles in connection with their employment; (ii) each member of a candidate's Local Union has the reciprocal right to receive such literature and/or solicitation of support from such candidate or candidate's advocate; . . . .
The foregoing rights are available only in connection with campaigning during the 2005-2006 IBT International Union Delegate and Officer Election conducted pursuant to the Consent Order and only during hours when the parking lost is normally open to employees. The rights guaranteed in this Subsection are not available to an employee on working time, may not be exercised among employees who are on working time and do not extend to campaigning which would materially interfere with the normal business activities of the employer. An employer may require reasonable identification to assure that a person seeking access to an employee parking lot pursuant to this rule is a candidate or other Union member entitled to such access. Nothing in this Subsection shall entitle any candidate or other Union member to access to any other part of premises owned, leased operated or used by an employer or to access to a parking lot for purposes or under circumstances other than as set forth herein.
Rules, Article VII, Section 12(e).
In Maxwell, P731 (April 25, 1996), the Election Officer held that employers may prohibit the placement of leaflets on windshields of cars parked in the employer's parking lot.
Here, however, there is no evidence that either Gwaltney/Smithfield Foods or Yellow Freight maintained policies prohibiting leafleting of employee vehicles in their parking lots, and the leaflets were not removed by the employer enforcing such a policy. Rather, Wright decided on his own to remove leaflets of his political opponent after hearing comments from Dent at Gwaltney/Smithfield Foods and from a shop steward at Yellow Freight. Wright's action impermissibly interfered with the right of that candidate to campaign and the reciprocal right of members to receive that campaign advocacy.
Even if there were an employer policy restricting the placement of leaflets on cars parked in the employee parking lot, a union official such as Wright (or any union member) could not enforce it. A union official or member cannot take it upon himself or herself to remove another candidate's distributed campaign material.
In cases where literature is removed, the collector often throws away or destroys the material. That is not the case here. Wright's violation of the Rules is ameliorated by the fact that he did not destroy the handbills but instead placed them in the employee.
Accordingly, we GRANT this protest.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
We order Wright to cease and desist from interfering with the campaign rights of other candidates and the rights of members to receive campaign advocacy. We further order Wright to sign the attached Notice and post it on all union bulletin boards at Gwaltney/Smithfield Foods and Yellow Freight and to maintain that posting for a period of thirty consecutive days; Wright must complete the posting within two (2) business days of receipt of this decision.
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 Supervisor 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
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 116
NOTICE TO TEAMSTERS MEMBERS FROM
JAMES WRIGHT, PRESIDENT OF LU 822
The Election Supervisor has found that I violated the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules") by removing campaign literature from vehicles in employee parking lots at Gwaltey/Smithfield Foods and Yellow Freight. The Election Supervisor has ordered me to cease such activity and to sign this Notice and post it on all Union bulletin boards at Gwaltey/Smithfield Foods and Yellow Freight.
The Rules protect the right of all IBT members to run for delegate, alternate delegate and International office and to support candidates of their own choosing for those offices. The Rules also protect the right of candidates and their supporters to campaign and the right of members to receive that campaign advocacy. The Rules prohibit interference with such rights.
The Election Supervisor will not permit any such interference with campaign activity.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with Richard W. Mark, Election Supervisor, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, telephone: 888-IBT-2006, fax: 202-454-1501, email: electionsupervisor@ibtvote.org.
_______________________________________
James Wright
President, IBT Local Union 822
This notice has been approved by IBT Election Supervisor Richard W. Mark and must remain posted for thirty (30) consecutive days.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Donald Ray Hardison
2158 Kingsley Lane
Chesapeake, VA 23323
lndmrkldr@cox.net
James Wright, President
Local Union 822
P.O. Box 12673
Norfolk, VA 23502
jwright@teamsterhrcoxmail.com
Yellow Freight
1313 Cavalier Boulevard
Chesapeake, VA 23323
Southern Atlantic Label
1300 Cavalier Boulevard
Chesapeake, VA 23323
Attn: James Rogers, Warehouse Manager
J. Griffin "Griff" Morgan
Elliot, Pishko, Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com