November 9, 1995
VIA UPS OVERNIGHT
Don McCartney
November 9, 1995
Page 1
Don McCartney
2537 Hillandale Road
Sodus, MI 49126
Bernerd Marosites
Bill Trewhella
Tom Hasty
Joe Runner
Dave Green
The Pro-Union Slate
c/o Teamsters Local 7
3330 Miller Road
Kalamazoo, MI 49003
Don McCartney
November 9, 1995
Page 1
Re: Election Office Case No. P-199-LU7-MGN
Gentlemen:
A pre-election protest was filed pursuant to the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Don McCartney, a member of Local Union 7 and a candidate for alternate delegate. The protester alleges that the chief steward of Comstock Michigan Fruit Canners distributed campaign material in support of the “Pro Union slate” during his working hours on September 7 and 8, 1995. The protest is filed against the following members of the Pro-Union slate: Bernerd Marosites, Bill Trewhella, Tom Hasty, Joe Runner, and Dave Green.
The charged members of the Pro Union slate assert that the chief steward distributed the campaign materials during his break from work and claim that the protest is untimely.
Regional Coordinator William A. Wertheimer, Jr. investigated the protest.
Article XIV, Section 2(b) of the Rules requires that a protest be filed “within two (2) working days of the day when the protester becomes aware or reasonably should have become aware of the action protested or such protests will be waived.”
Don McCartney
November 9, 1995
Page 1
The protester stated that he filed the protest the day after he learned of the chief steward’s actions. While he is aware of the two-day filing requirement set forth in the Rules, the protester asserted that he had not spoken to the employees at Comstock between
September 7 or 8 and October 12. The protester’s statement is credible; and therefore, the Election Officer will consider this protest on the merits.
It is undisputed that Chief Steward Dennis Thomas passed out hats and t-shirts in support of the Pro Union slate to his fellow employees at Comstock Michigan Fruit Canners. The dates of this activity are not certain. The protester asserts that Mr. Thomas distributed the items on September 7 and 8, but two members on the Pro-Union slate contend that
Mr. Thomas did not yet have the hats and t-shirts in his possession on these dates. The two witnesses, however, confirm that Mr. Thomas distributed the hats and t-shirts one morning in early September.
Mr. Thomas passed out the campaign items on the Comstock receiving dock, which is located very close to the break room. Mr. Thomas engaged in this activity during working hours and not at a regular break time.
As a working steward at Comstock, Mr. Thomas is permitted to take his break when his work flow allows, even if this occurs during a period which is not a regularly scheduled break time. This statement was confirmed by Mr. Thomas’ supervisor, who also stated that Comstock strictly prohibits campaigning during work time and that, to his knowledge,
Mr. Thomas did not violate this rule.
Article VIII, Section 11(a) of the Rules prohibits members from campaigning “during his/her working hours,” but allows for campaigning “during paid vacation, paid lunch hours or breaks . . .” In this case, Mr. Thomas’ statement that he campaigned only during his break time is corroborated by his supervisor. Thus, the activity was not in violation of the Rules.
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.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Don McCartney
November 9, 1995
Page 1
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
William A. Wertheimer, Jr., Regional Coordinator