IN RE: TIM FOX, Protestor.
Protest Decision 2006 ESD 266
Issued: May 24, 2006
OES Case No. P-06-240-032406-NE
Tim Fox, member and alternate delegate candidate from Local Union 804, 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 alleges that Ken Reiman distributed campaign material inside the Melville UPS facility, in violation of the Rules.
Election Supervisor representative Steven R. Newmark investigated this protest.
Findings of Fact
The protest alleged that Reiman, a delegate candidate on the Tom Leedham slate and fellow employee at the UPS Melville facility, distributed campaign literature in a work area on work time on March 21, 2006. The protestor contended that the flyer mentioned Leedham's pension reform plans and that the same information contained in the flyer also appeared on TDU's website.
Reiman acknowledged he handed out materials in a work area but contended he was not campaigning. He stated that the flyers were copies of a Bloomberg News article concerning UPS pensions published the previous day and were not campaign material. Reiman claims that the article, entitled "UPS Uses Political Clout to Press for Cuts in Benefits," was downloaded from the Common Dreams internet site (www.commondreams.org) and that it does not promote or identify any candidate. Reiman stated that he handed out the copies of the article before the official start of his shift at 8:45 a.m.
Two witnesses provided by the protestor, Tom Lowe and James Pizzuto, received the literature in question from Reiman, and both stated the content was politically oriented. However, they also conceded that they only glanced at the literature before disposing of it. Both witnesses confirmed Reiman's statement that he handed out the materials before 8:45 a.m.
No person interviewed could provide a copy of the distributed literature. However, the article, originally published by Bloomberg News, was reprinted on the websites of the Common Dreams organization and TDU. The article detailed UPS's effort to secure legislation that would permit multi-employer pension plans to reduce pension benefits, even for employees who have already retired. The article stated that the IBT opposes this effort, but it does not mention any candidate or slate by name or reference.
UPS prohibits campaigning in areas other than breakrooms, locker rooms, and parking lots.
Analysis
Article VII, Section 12 (a) of the Rules provides that "[n]o candidate or member may campaign during his/her working hours. Campaigning incidental to work is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is also not violative of this section." We find Reiman's activity occurred on his personal time before his UPS work shift began. Accordingly, he did not violate this provision of the Rules.
Article VII, Section 12(d) declares that "no restrictions shall be placed upon candidates' or members' preexisting rights to solicit support, distribute leaflets or literature … or engage in similar activities on employer or Union premises." Where no preexisting right exists to campaign on employer premises, such activity violates the Rules unless the employer grants permission to all candidates. Here, we find that UPS uniformly enforced a rule prohibiting campaigning in work areas.
Nonetheless, we DENY the protest, finding that Reiman was not campaigning. "Campaigning" exists under the Rules when a communication "supports or attacks" a candidate. In Martin, P10 (August 17, 1995), aff'd, 95 EAM 18 (October 2, 1995), Election Officer Quindel held that "campaigning" under the Rules contemplates more than mere communication with the members. Some indication of the advocacy for the nomination, election or defeat of a candidate must be in evidence. Id., see also Caffrey, P47 (October 19, 1995). No violation occurs where the speech relates to a legitimate issue of concern to the membership, even if that issue is also a campaign issue. Crawley, P27 (August 23, 1995).
While there is no dispute that Reiman distributed literature in the work area, the protestor and Reiman disagree on the content of the literature. We find that since the literature in question did not refer to or identify any candidate, it did not constitute campaigning within the meaning of the Rules as it did not advocate the nomination, election or defeat of any candidate.
Accordingly, we DENY 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 Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, 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 266
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
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
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Tim Fox
5 Cheryl Lane
Pacthogue, NY 11772
Ken Rieman
72 Eagle Lane
Hauppauge, NY 11788
Howard Redmond
President, Local Union 804
34-21 Review Avenue
Long Island City, NY 11101
David F. Reilly, Esq.
22 West Main Street
North Kingston, RI 02852
dreilly@rooltd.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com