Protest Decisions

September 13, 1995

VIA UPS OVERNIGHT

Debra Burrows, et al.

September 13, 1995

Page 1

Debra Burrows, et al.

September 13, 1995

Page 1

Re:  Election Office Case No. P-118-LU70-CLA

Gentlepersons:

Debra Burrows, et al.

September 13, 1995

Page 1

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Officer Election (“Rules”) by Debra Burrows, Local Union 63 Business Representative, who alleges a violation of Article VIII, Section 11(d) of the Rules prohibiting discrimination against union members seeking access to employer premises for campaign activity.  The protester alleges that three persons misrepresented themselves as Local Union 63 business representatives in order to gain access to the premises of the Sweetheart Cup Company (“Employer”) in Riverside and solicited signatures for petitions supporting the candidacy of James P. Hoffa for general president.  The protest is filed against the three persons who obtained access:  Robert Kirkpatrick, Herman Lopez,[1] and Andy Soto.  Mr. Kirkpatrick is a former member of Local Union 63 and now a member of Local

Union 70.  Mr. Lopez and Mr. Soto are members of Local Union 63.

The charged parties deny that they made any misrepresentations about being from or representing Local Union 63 during their visit to the Employer’s facility.  They contend that they were allowed to enter the plant by the security guard, they engaged in legitimate campaign activities in the employees’ break areas, and violated no rules.

This protest was investigated by Regional Coordinator Dolly M. Gee, who interviewed the protester, the three respondents, the Employer’s director of Labor Relations, the security guard, and six additional employee witnesses.

The Employer has a collective bargaining agreement with Local Union 63.  The collective bargaining agreement between Local Union 63 and the Employer allows only the Local Union 63 business agent or other duly authorized representative to visit the plant during operating hours for activities consistent with the agreement.  The protester is the Local 63 business representative assigned to this employer.  There is no dispute between the Employer and the local union that the Employer does not permit employees to campaign for union office on its premises.  This policy has been in effect since at least 1993, when the Employer explained the prohibition to a former Local Union 63 Trustee.  None of the witnesses interviewed by the investigator recalled seeing anyone campaign for union office inside the plant.

On July 31, 1995, Messrs. Kirkpatrick, Lopez, and Soto approached the security guard at the employee entrance of the plant in order to gain admission.  Mr. Kirkpatrick showed the security guard his business card, which clearly stated that he was Western Regional Coordinator for the campaign of James P. Hoffa for president.  The guard, who was relatively new on the job, believed that the three respondents were with “Debbi Burrows,” and believed that they were entitled to access to the plant. 

Once they entered the plant, the three respondents spent approximately 35 minutes in a break area soliciting signatures on petitions to accredit the candidacy of Mr. Hoffa.  They then left voluntarily.

Ms. Burrows later found out about the visit and spoke to employees who were present at the time.  A number of employees provided signed statements asserting that respondents had misrepresented themselves as members of Local Union 63, and had signed the petitions on that basis.  Some of the signers now ask if they can remove their signatures from the accreditation petitions. 

After the incident, the Employer issued a memorandum to its security guards reiterating its policy prohibiting access for union campaigning.  The Employer advises that it intends to apply its prohibition more vigorously as a result of the incident involved in this protest.

Debra Burrows, et al.

September 13, 1995

Page 1

Article III, Section 11 (d) of the Rules provides:

No restrictions shall be placed upon candidates’ or members’ preexisting rights to use employer or union bulletin boards for campaign publicity.  Similarly, no restrictions shall be placed upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on employer of union premises.  Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.

The essence of the protest is the allegation that Mr. Kirkpatrick and the others misrepresented their affiliation in order to gain access to the Employer's premises for campaign purposes.  The investigation here did uncover evidence to suggest that Mr. Kirkpatrick misrepresented himself as a representative of Local 63 in order to convince union members to sign his petitions.  The Election Officer’s investigation revealed previous instances in 1993 where Mr. Kirkpatrick misrepresented himself in order to gain an advantage in campaigning.

However, there is no direct evidence that Mr. Kirkpatrick and the other respondents misrepresented themselves in order to gain access to the Employer's premises.  To the contrary, it appears that Mr. Kirkpatrick showed the guard his business card, which identified him as a coordinator for the Hoffa campaign.  The interview with the guard did not uncover an active misrepresentation, and it appears that the guard’s decision to allow the respondents access was due more to his unfamiliarity with the plant rules than with any misconduct by the respondents.  Thus, the Election Officer cannot sustain the accusation that the respondents gained access to the plant by false pretenses.

If an employer chooses to allow campaigning on their premises, it may do so as long as equal access is provided to all candidates pursuant to Article VIII, Section 11(d).   If a no-campaigning rule is in place, it must be enforced in a completely even-handed manner.

This protest was filed against the respondents, not against the Employer.  As noted above, it is an employer’s responsibility not to favor one candidate over another.  The Employer has consistently maintained a no-campaigning rule.  The admission of the respondents to campaign for Mr. Hoffa was a one-time event caused by the mistake of a newly hired guard.  The Employer has assured it will not happen again.  The access to the respondents for 35 minutes amounts to a de minimis infraction of the company's rule.  Under these circumstances, there would be no violation of the Rules by the company. 

Debra Burrows, et al.

September 13, 1995

Page 1

As noted above, there is reason to believe that the respondents misrepresented themselves to individual members as being part of the Local 63 leadership.  However, this is not a basis for finding a violation of the Rules in these circumstances.  Respondents were seeking signatures on accreditation petitions for James Hoffa's candidacy for president.[2]    Anyone who signed such a petition would have to know that they were signing a petition on behalf of Mr. Hoffa.   Thus, any employees who signed the respondent's petitions knew what they were signing and were not materially mislead.

It may well be that in deciding whether to sign a particular candidate’s petition members would be influenced by how their local union business representative or leadership advised them. Nevertheless, the Election Officer can only safeguard the individual's choice, and not police the advice given to them by other union members.  As long as the petition form itself was clear, the Election Officer can find no basis for removing signatures based on an allegation that the person who circulated the petition misrepresented his or her affiliation with that local union.

For the foregoing reasons, the protest is DENIED.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Mudge, Rose, Guthrie, Alexander & Ferdon

180 Maiden Lane, 36th Floor

New York, NY 10038

Fax (212) 248-2655

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001.  Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:              Kenneth Conboy, Election Appeals Master

Dolly M. Gee, Regional Coordinator