September 18, 1996
VIA UPS OVERNIGHT
Donald Dunsmore
September 18, 1996
Page 1
Donald Dunsmore
24290 Mt. Olive
Flat Rock, MI 48134
Larry Murray, Director of Labor Relations
E & L Transport
35005 Michigan Avenue
Wayne, MI 48184
Billy Scott
1733 Trinity
Detroit, MI 48219
Ronald Smith, President
Teamsters Local Union 299
2741 Trumbull Avenue
Detroit, MI 48216
Donald Dunsmore
September 18, 1996
Page 1
Re: Election Office Case No. P-911-LU299-MGN
Gentlemen:
Donald Dunsmore, a member of Local Union 299, filed a protest pursuant to
Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Billy Scott, a business representative employed by Local Union 299. Mr. Dunsmore alleges that Mr. Scott improperly entered the premises of
E & L Transport Company (“E & L”) on August 23, 1996 for the purpose of campaigning.
Mr. Scott does not deny that he gained access to E & L and campaigned in the driver’s break room, but maintains that his time there was brief, and incidental to permissible campaign activities previously conducted in E & L’s parking lot.
The protest was investigated by Regional Coordinator William A. Wertheimer.
Mr. Dunsmore had no firsthand knowledge regarding the facts of the protest. He referred the Regional Coordinator to several witnesses. Mr. Scott readily admits that on August 23, 1996, which was a vacation day for him, he arrived at E & L at about 10:30 a.m. He signed the guard sheet and proceeded to the employee parking lot, which is bordered by a sidewalk. Just beyond this sidewalk is a picnic table. E & L’s terminal building is beyond the picnic table.
Donald Dunsmore
September 18, 1996
Page 1
When Mr. Scott arrived at the employee parking lot, he approached six employees seated at the picnic table. Mr. Scott is a supporter of Ron Carey for general president and, over the next 20-25 minutes, he provided campaign literature to these six employees and sold them tickets to a Carey rally.
At the conclusion of these activities, Mr. Scott entered the driver’s room immediately beyond the entrance to the E & L terminal. He posted campaign material supporting
Mr. Carey on a bulletin board that is used by E & L employees. Campaign literature supporting Mr. Hoffa was also displayed on this bulletin board. While in the driver’s room, Mr. Scott spoke to several employees about the Carey rally and sold additional tickets.
Mr. Scott then entered the dispatch office and spoke with a steward about the upcoming Carey rally. He spoke to several office employees, explaining that he was on vacation that day and that he was there to campaign. Mr. Scott then returned to the picnic table area and, for about 30 minutes, campaigned to a new set of employees.
Upon returning to the driver’s room, Mr. Scott spoke briefly to another union steward about the campaign. He then entered the office of Jerry Clemmons, the terminal manager. He claims to have told Mr. Clemmons that he had taken a vacation day to campaign and that he had left campaign literature in the driver’s room. Mr. Clemmons is alleged to have responded by remarking that he would have to clean it all up, reminding Mr. Scott that the bulletin board existed for that purpose.
Mr. Clemmons, however, denies that the conversation took place, at least as reported by Mr. Scott. Mr. Clemmons states that Mr. Scott advised him that he was on vacation, but did not advise that his purpose was to campaign. Mr. Clemmons also states that he did not observe Mr. Scott at any time during the other times he was in the terminal building and did not see him post any material.
Additionally, Mr. Clemmons states that E & L allows non-employee business agents on its premises only when they have legitimate union business to conduct. He acknowledges that the bulletin board is open to campaign material from any candidate.
The Rules at Article VIII, Section 11(d) read:
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 or Union premises. Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis.
Donald Dunsmore
September 18, 1996
Page 1
One source of “preexisting rights” for purposes of this section is past practice. In Re: Hall, 90 - Elec. App. - 1 (October 4, 1990); Brinkman, P-151-LU305-PNW (September 18, 1995), aff’d, 95 - Elec. App. - 21 (KC) (October 10, 1995). The existence of a contrary rule does not change this result if a contrary practice has grown up in the face of it. Blake,
P-953-LU848-CLA (October 30, 1991) (“de jure restricted union bulletin board may have been transformed through past practice into a de facto general purpose bulletin board”). Once established, a pre-existing right may not be changed or cut back during the election process. Jesses, P-183-LU612-SEC (February 5, 1991) (“the employer cannot now change its practice” with respect to parking lot access); Camarata, P-709-LU299-MGN (April 10, 1991); Benson, P-431-LU104-RMT (undated). Furthermore, the Rules, as quoted above, specifically require that access rights be applied without discrimination.
The Election Officer determines that the record here is insufficient to establish a pre-existing right to permit business agents to access E & L’s premises for the purpose of campaigning. One witness had a vague recollection of two other business agents campaigning on the premises, but could not provide any details. This evidence is not reliable, especially in light of Mr. Clemmons clear statement of company policy.
Mr. Scott is an not an employee of E & L. He works for Local Union 299. Absent a pre-existing right or the right to be on the premises for legitimate union business, Mr. Scott has no right protected under the Rules to access E & L’s terminal building to campaign. The Rules do not provide a right for members with the purpose to campaign to enter employer premises where they are not employed, except for “any parking lot used by that Local Union’s members to park their vehicles in connection with their employment.” Article VIII,
Section 11(e); Lopez, P-667-LU743-CHI (June 7, 1996).
To the extent that the protester alleges that Mr. Scott’s access was discriminatory, evidence does not show that E & L has permitted such access and, therefore, E & L did not violate the Rules.
The protest against Mr. Scott is GRANTED and DENIED in all other respects.
Having found that the Rules have been violated, the Election Officer “may take whatever remedial action is appropriate.” Article XIV, Section 4. In fashioning the appropriate remedy, the Election Officer views the seriousness of the violation, as well as its potential for interfering with the election process.
The Election Officer directs as follows:
1. Mr. Scott is directed to immediately cease and desist from campaigning in any manner which violates the Rules.
2. Within two (2) days of receipt of this decision, Local Union 299 shall post the enclosed “Notice to Employees of E & L” on all union bulletin boards located at the E & L terminal.
Donald Dunsmore
September 18, 1996
Page 1
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).
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
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
William A. Wertheimer, Regional Coordinator
NOTICE TO IBT MEMBER EMPLOYEES
OF E & L TRANSPORT COMPANY
The Election Officer has found that Billy Scott, a business agent employed by Local Union 299, violated the Election Rules when he campaigned at E & L Transport Company on August 23, 1996. Mr. Scott is not employed by E & L. On that day, Mr. Scott gained access to the E & L terminal despite the fact that he was not conducting union business at E & L as a Local Union 299 business agent. Non-employees have no pre-existing right to campaign at the E & L facility. The Rules do not provide a right to members with the purpose to campaign to enter employer premises where they are not employed, except for parking lots used by members to park their vehicles in connection with their employment.
_______________________ ______________________________
Date Barbara Zack Quindel
Election Officer
This is an official notice which must remain posted for 30 consecutive days and must not be defaced or altered in any manner or be covered with any other material.
Approved by Barbara Zack Quindel, IBT Election Officer.