Protest Decisions

              September 30, 1996

VIA UPS OVERNIGHT

Donald Dunsmore

September 30, 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

Kurt C. Kobelt

Kelly & Haus

148 E. Wilson Street

Madison, WI 53703

Donald Dunsmore

September 30, 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 and pursuant to a pre-existing right.

Donald Dunsmore

September 30, 1996

Page 1

The Election Officer previously issued a decision in this case on September 18, 1996.  Just after the decision was issued and before it was received by the parties, the Election Officer received a supplemental report from the Regional Coordinator which contained evidence regarding a pre-existing right to campaign on E & L premises.  Therefore, on September 19, 1996, the Election Officer withdrew the decision to consider the new evidence.

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. 

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 states he told Mr. Clemmons that he had taken a vacation day to campaign and that he had left campaign literature in the driver’s room.  According to Mr. Scott, Mr. Clemmons responded 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 him 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 and 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.

Donald Dunsmore

September 30, 1996

Page 1

Mr. Scott maintains that he has campaigned inside the facility of E & L on a number of occasions.  Most recently, he reports that he campaigned in the building, at least two or three times, during March and April of 1996.[1]   At such time, he states, his practice was always the same.  He would announce himself and his purpose to someone in an official capacity sometime during the visit.  On these occasions, he came to the facility solely to campaign.

The protester provided the name of Joe Renado, a Local Union 299 steward at E & L, as a witness.  Mr. Renado stated that over the last 20 years, he has witnessed campaigning at the facility by a number of different persons.  He confirmed Mr. Scott’s statement that he had  campaigned within the E & L facility on several occasions.  Mr. Renado also recalls that

Ron Owens, Pete Karagosian and Bob Lynn has all previously campaigned on the premises.[2]  Doug Weber, now an International representative, states that he has campaigned within the facility of E & L four or five times, the most recent being in the Spring of 1996. 

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.

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 sufficient to establish a pre-existing right to permit non-employee members and non-employee business agents to access

E & L’s premises for the purpose of campaigning.  Mr. Clemmons’ statement notwith-standing, the evidence shows that non-employees have repeatedly campaigned on the premises.  Thus, Mr. Scott was exercising his pre-existing right, under the Rules, to access E & L’s terminal building to campaign when he did so on August 23, 1996. 

The protest is, accordingly, 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

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