April 12, 1996
VIA UPS OVERNIGHT
Philip Viscomi & Keith Ryan
April 12, 1996
Page 1
Philip Viscomi
630 E. 102nd Street, Apt. 4F
Brooklyn, NY 11236
Keith J. Ryan
88-22 249th Street
Queens, NY 11426
Michael Ruscigno
302 Summit Avenue
Jersey City, NJ 07306
Wilford K. Edwards
1072 E. 43rd Street
Brooklyn, NY 11210
Philip Viscomi & Keith Ryan
April 12, 1996
Page 1
Re: Election Office Case No. P-683-LU138-NYC
Gentlemen:
Phillip Viscomi and Keith Ryan, members of Local Union 138, and candidates for delegate from that local union, filed a pre-election protest pursuant to Article XIV,
Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”). The protester alleges that Michael Ruscigno, a business agent for Local Union 138 and a candidate for delegate gave campaign flyers to Wilfred Edwards, a shop steward at Key Foods. Mr. Edwards, the protester alleges, posted one of those flyers on a bulletin board at Key Foods while Mr. Ruscigno was on union time and Mr. Edwards was on company time, in violation of the Rules.
Mr. Ruscigno and Mr. Edwards respond that the campaigning was incidental to their union and company duties.
New York City Protest Coordinator Barbara Deinhardt investigated the protest.
On March 26, Mr. Ruscigno and Mr. Edwards met to conduct union business. After the meeting was over, Mr. Edwards asked Mr. Ruscigno for some campaign leaflets.
Mr. Edwards posted one of them on the lunchroom bulletin board while posting a union notice on or shortly before a break.
Philip Viscomi & Keith Ryan
April 12, 1996
Page 1
The Rules protect “incidental” campaigning on work time. See Article VIII,
Section 11(a). This is not the grant of an extra campaign right, but a recognition that conversations about elections, including campaign advocacy, may be part of the everyday discourse that otherwise occurs at the workplace. See Benson, Post-67-LU104-RMT
(April 16, 1991) (“Use of a CB radio [for campaigning] while otherwise working . . . is exactly the type of normal ‘shop talk’ the rule on incidental campaigning was meant to [cover].”)
In assessing whether campaign activity falls within normal workplace interaction and is, therefore, “incidental,” the Election Officer has looked to the absence of evidence that an employee failed to perform work, deviated from prescribed duties, or interfered with another employee’s work. Grossman, P-476-LU284-CLE (March 6, 1996); Raymond, P-434-
LU572-CLA et seq. (March 14, 1996) (incidental to union business).
Article VIII, Section 11(b) of the Rules protects the right of local union officers and employees, if members,
. . . to participate in campaign activities, including the right . . . to openly support or oppose any candidate . . . However, such campaigning must not involve the expenditure of Union funds. Accordingly, officers and employees (and other members) of the Union may not campaign on time that is paid for by the Union. Campaigning incidental to regular Union business is not, however, violative of this section.
The Election Officer has applied the "incidental" exception to campaign-related conversations that local union officers and employees have with members while transacting legitimate union business, Raymond, P-434-LU572-CLA et seq. (March 14, 1996); Newhouse, P-253-LU435-RMT (January 4, 1996), as well as to brief, campaign-related parts of conversations that were otherwise about legitimate union business. Jackson, P-842-
LU612-SEC (August 14, 1991); Draeger, P-486-LU823-MOI (February 20, 1991). Brief campaigning before or after legitimate union business may also fall within the bounds of normal personal interaction. Dillon, P-467-LU284-CLE (March 4, 1991).
Here, Mr. Ruscigno’s conversation about the election and provision of leaflets to
Mr. Edwards constitutes a very brief episode that followed legitimate union business and was, therefore, incidental to that business.
Accordingly, 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:
Philip Viscomi & Keith Ryan
April 12, 1996
Page 1
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 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
Barbara Deinhardt, New York City Protest Coordinator