OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: ANTHONY BLAIR, ) Protest Decision 2016 ESD 117
) Issued: February 23, 2016
Protestor. ) OES Case Nos. P-144-020416-MW
____________________________________)
Anthony Blair, member of Local Union 89, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that campaign literature was posted on a worksite bulletin board reserved exclusively for official union postings, in violation of the Rules.
Election Supervisor representative Joe Childers investigated this protest.
Findings of Fact and Analysis
The protest alleged that campaign literature of the Zuckerman/Bolton slate, a slate of candidates competing in Local Union 89’s delegates and alternate delegates election, was posted on an official union bulletin board at a UPS facility under Local Union 89’s jurisdiction. The bulletin board is locked and glass-enclosed and is situated in a high-traffic area used by arriving and departing employees daily.
Investigation showed that three pieces of Zuckerman/Bolton literature were posted on the union bulletin board on or about Thursday, February 4, 2016. The protest here was filed promptly. The flyers were removed from the bulletin board Monday morning, February 8.
The identity of the individual who posted the campaign material could not be ascertained. The business agent assigned to the building did not have a key, and when he proceeded to the bulletin board on February 8 in response to the protest, he observed the campaign material but could not immediately open the glass cover to remove it. He summoned two members of management and finally a maintenance employee to open the board. None had a key and the maintenance employee opened the cover with a shim. The business agent then removed the campaign material.
The official union bulletin board at this worksite is an “Article 19” bulletin board, provided by UPS to the union and “to be confined to official business of the Union.” It is used for official postings of the local union and not for general or campaign purposes.
Article VII, Section 12(d) states that “[n]o restrictions shall be placed upon candidates’ or members’ pre-existing rights to use … Union bulletin boards for campaign publicity. …. Such facilities … shall be made available to all candidates and members on a non-discriminatory basis.”
Our inquiry focuses on whether a pre-existing right exists to post on the official union board at this UPS facility. Absent an express policy permitting use of bulletin boards for campaign purposes, past practice is the determining factor. Cooper, 2005 ESD 8 (September 2, 2005). Where there is no past practice, there is no right to post campaign literature on a bulletin board. Bolen, 2006 ESD 73 (February 7, 2006); Deaver, 2006 ESD 74 (February 7, 2006).
The facts here demonstrate that the glass-enclosed bulletin board at this UPS facility is reserved for official union postings and no pre-existing right exists to post campaign material there. We reach this conclusion from the express contract language limiting the board’s use to official union notices, a conclusion that is reinforced by the locked glass cover that limits access as well as uniform practice. Given that no pre-existing right exists to post anything other than official union postings on this board, the posting of Zuckerman/Bolton slate campaign material created the impression to viewers of the board that the union supports or endorses that slate. To the contrary, the union is and must be neutral in the election and candidates cannot be permitted to convey that the union is anything other than neutral.
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 the Zuckerman/Bolton slate and its supporters to cease and desist from posting campaign material on union bulletin boards reserved exclusively for official union postings.
In addition, we order that Local Union 89 post on the union bulletin board at the UPS facility where the campaign material was posted the notice attached to this decision and maintain the posting there through March 2, 2016, the date ballots are to be counted in the delegates and alternate delegates election. We order that the posting be completed within one day of receipt of this decision. Within three days of posting the notice, the local union shall submit a declaration of compliance to OES.
A decision of the Election Supervisor takes immediate effect unless stayed. 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 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:
Kathleen A. Roberts
Election Appeals Master
JAMS
620 Eighth Avenue, 34th floor
New York, NY 10018
kroberts@jamsadr.com
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, 1050 17th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kathleen A. Roberts
2016 ESD 117
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
braymond@teamster.org
David J. Hoffa
1701 K Street NW, Ste 350
Washington DC 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Teamsters United
315 Flatbush Avenue, #501
Brooklyn, NY 11217
info@teamstersunited.org
Louie Nikolaidis
350 West 31st Street, Suite 40
New York, NY 10001
lnikolaidis@lcnlaw.com
Julian Gonzalez
350 West 31st Street, Suite 40
New York, NY 10001
jgonzalez@lcnlaw.com
David O’Brien Suetholz
515 Park Avenue
Louisville, KY 45202
dave@unionsidelawyers.com
Fred Zuckerman
P.O. Box 9493
Louisville, KY 40209
fredzuckerman@aol.com
Anthony Blair
799 Equinox Blvd
Mt. Washington, KY 40047
absb@twc.com
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
Teamsters89@aol.com
Joe Childers
201 W. Short St, Ste 300
Lexington, KY 40507
Childerslaw81@gmail.com
Bill Broberg
1108 Fincastle Road
Lexington, KY 40502
wbroberg@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Suite 212
Ann Arbor, MI 48104
EllisonEsq@aol.com
Office of the Election Supervisor
for the International Brotherhood of Teamsters
1050 17th Street, N.W., Suite 375
Washington, D.C. 20036
202-429-8683
844-428-8683 Toll Free
202-774-5526 Facsimile
ElectionSupervisor@ibtvote.org
www.ibtvote.org
February 23, 2016
Richard W. Mark
Election Supervisor
NOTICE TO MEMBERS OF TEAMSTERS LOCAL UNION 89
EMPLOYED AT THIS UPS FACILITY
The Election Supervisor has found that the Zuckerman/Bolton slate violated the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”) by posting campaign material on this bulletin board, which is reserved exclusively for official notices of Local Union 89. Placing campaign material on this official union board gives the incorrect impression that Local Union 89 is not neutral in the delegates and alternate delegates election. The Local Union is and must be neutral in the election.
The Election Supervisor has ordered the Zuckerman/Bolton slate and its supporters to cease and desist from posting campaign materials on this official union board, and has further ordered that this notice remain posted on this official union board until March 2, 2016.
The Election Supervisor has issued this decision in Blair, 2016 ESD 117 (February 23, 2016). You may read this decision at https://www.ibtvote.org/Protest-Decisions/esd2015/2016esd117.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, 1050 17th Street, N.W., Suite 375, Washington, D.C. 20036, telephone: 844-428-8683, fax: 202-774-5526, email: electionsupervisor@ibtvote.org.
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters. It must remain posted on this bulletin board through
March 2, 2016 and must not be defaced or covered up.