IN RE: DAVID BARKER, Protestor.
Protest Decision 2006 ESD 242
Issued: May 15, 2006
OES Case No. P 06 202-030706-MW
David Barker, a member of Local Union 325 and delegate candidate on the Taking Action slate, 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"). The protest alleged that a) on March 3, 2006, a terminal manager at USF Holland, an employer, removed campaign literature from union bulletin boards at the employer's location, and b) Local Union 325 failed to provide a current worksite list with all worksites and current addresses, in violation of the Rules.
Election Supervisor representative Joe F. Childers investigated the protest.
Findings of Fact and Analysis
1. Alleged improper removal of campaign literature from bulletin boards
Barker alleged that Rick Varga, a USF Holland terminal manager, tore down and destroyed campaign literature of the Taking Action and Tom Leedham slates from worksite bulletin boards.
A witness who did not identify himself told our investigator that he came into the drivers' breakroom and saw campaign flyers on the bulletin board. He then saw Varga enter the breakroom, remove the flyers and throw them in the trash.
Varga admitted that he removed campaign literature from the bulletin board in question but said he did so because the literature was attached improperly. He stated that company rule requires that material be securely fastened to the board itself. The literature he removed was taped to the frame of the bulletin board rather than to the board. After he removed the literature, he told the drivers present why he removed it. Varga stated there have been no problems with postings since that time. Investigation found no evidence that Varga's policing of the bulletin board was conducted in a discriminatory manner.
The Rules' protection of pre-existing rights to post campaign material on bulletin boards does not extend to areas other than boards, unless practice demonstrates that such areas have been used in lieu of or in addition to bulletin boards. See, e.g., Watts, 2006 ESD 146 (March 17, 2006). Here, investigation did not refute Varga's assertion that the campaign material was affixed to the frame of the board rather than the bulletin board itself. Accordingly, we DENY this aspect of the protest. We note and place reliance on Varga's assertion, not contradicted by the protestor, that properly posted campaign material has not been removed.
2. Alleged incomplete worksite list.
On March 5, 2006, Barker made written request to local union secretary-treasurer Richard Thompson for a current list of all worksites where members of the local union were employed. In Thompson's absence, local union president Steve Lindquist replied by certified letter dated March 10, 2006 enclosing the worksite list. Barker's protest presented two complaints about the list he received: first, he alleged the list either omitted employers or stated their addresses incorrectly; second, he alleged that certified mail delayed his receipt of the list for several days.
Of the two employers identified in the protest as improperly omitted from the worksite list, one was out of business at the time the list was mailed and the other was not in the local union's jurisdiction; accordingly, Local Union 325 had no members employed at either employer.
Candidates are entitled to updated worksite lists on request. Rules, Article VII, Section 1(b); Adamo, P638 (March 27, 1996). Here, however, these two employers employed no local union members on the date the list was provided; accordingly, the employers need not be identified on the list provided. While local unions are obligated to provide updated lists on their own initiative where the nature of the industry in which members work is such that worksites often change, see, Bianchi, P307 (February 12, 1996), that is not the case here. Local 325 did not violate the worksite list provision of the Rules by its omission of the two employers in question on the list provided to Barker.
The address of a third employer was listed incorrectly through typographical error. The employer, Rigging Services, LLC, was located directly across the street from the union hall. The address was corrected when the local union discovered it to be incorrect. President Steve Lindquist provided the correct address to Barker by letter mailed 5 days after the protest was filed. Investigation showed that the local union provided Barker with a worksite list that were believed to be accurate but in fact listed an incorrect address. However, Barker suffered no prejudice because of this error. Santos, 2001 EAD 354 (May 8, 2001).
The local union's use of certified mail to deliver the worksite list does not violate the Rules.
Accordingly, we DENY this aspect of the protest.
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 Office of the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, Suite 1400, N.W., Washington, D.C. 20006, 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 242
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
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
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
David Barker
W7939 Sweet Road
Darien, WI 53114
Matthew Fitch
Merriman River Associates
P.O. Box 185332
Hamden, CT 06518
matt@merrimanriver.com
Richard Thompson, Secretary-Treasurer
IBT Local Union 325
5533 Eleventh Street
Rockford, IL 61109
Rick Varga, Facility Manager
USF Holland
1751 New Milford School Road
Rockford, IL 61109
William Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com