October 17, 1996
VIA UPS OVERNIGHT
Todd Furst
October 17, 1996
Page 1
Todd Furst
566 Madison Avenue
York, PA 17404
Ed Fisher, Trustee
Teamsters Local Union 430
355 S. Wheaton Street
York, PA 17403
Kevin Cicak, President
Teamsters Local Union 430
355 S. Wheaton Street
York, PA 17403
Don Brown
30 High Street
Felton, PA 17322
Barry Gay
Fleming Companies, Inc.
1100 N. Sherman Street
York, PA 17405
Todd Furst
October 17, 1996
Page 1
Re: Election Office Case Nos. P-941-LU430-PNJ DECISION ON
P-950-LU430-PNJ REMAND
Gentlemen:
Related pre-election protest were filed pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) by
Todd Furst, a member of Local Union 430. In both protests, Mr. Furst alleges that literature supporting the candidacy of Ron Carey, the incumbent general president and a candidate for reelection, has been removed from work-site bulletin boards at a Fleming Foods (“Fleming”) facility in York, Pennsylvania by individuals representing Fleming and Local Union 430, in violation of the Rules.
Todd Furst
October 17, 1996
Page 1
The Election Officer issued her decision on this matter on October 8, 1996. Mr. Furst filed an appeal with the Election Appeals Master on October 14, 1996. On October 15, 1996, the Election Officer requested the decision be remanded so that she could examine Mr. Furst’s allegation concerning the removal of literature by an agent or agents of Local Union 430. The current decision will examine the allegations made by Mr. Furst in both protests.
Barry Gay, a representative of Fleming, admits that he removed literature from the bulletin boards but states that the material he removed dealt with issues of local union concern and was not Carey campaign material. Mr. Gay acknowledges that employees have a right to post campaign material related to the International officer’s election, but states that the employer maintains the right to remove literature that references issues of purely local concern, that amount to personal attacks on local union or company officials, or that reference contract negotiations between the employer and the local union.
Ted Fischer, a Local Union 430 steward at Fleming, admits that he removed literature posted by the protester, but, like Mr. Gay, he insists that he believed this literature was related to local issues and was not material related to the International officer election. He states, however, that, in retrospect, some of the material may arguably have involved the Interna-tional officer election. He also states that since the filing of the protests he has not removed any literature because of his uncertainty about what constitutes campaign material under the Rules.
Regional Coordinator Peter V. Marks, Sr. investigated the protest.
During the investigation, the protester provided copies of literature he has posted on the boards at Fleming that he alleges has been removed. The majority of these postings mix attacks upon the candidacy of James P. Hoffa or support for the candidacy of Mr. Carey with criticisms of local union officers and their policies. The investigation revealed confusion among the parties as to what constitutes International officer campaign material and what amounts to no more than commentary on matters of local union concern.
Article VIII, Section 11(d) of the Rules states:
No restrictions shall be placed upon candidates’ or members’ preexisting rights to use employer or Union bulletin boards for campaign publicity . . . Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.
Fleming allows its employees to post campaign material related to the International officer campaign. The employer does not permit other campaign postings related to the local union officers campaign or those critical of the employer. Such a practice does not violate Article VIII, Section 11(d) of the Rules so long as the employer is able to properly identify the distinction between these kinds of literature prior to its removal.
Todd Furst
October 17, 1996
Page 1
Campaigning has been defined by the Election Officer as “advocacy for or against a candidate.” Giacumbo et al., P-001-IBT-PNJ et seq. (September 29, 1995), aff’d in relevant part, 95 - Elec. App. - 32 (KC) (November 1, 1995); See also Caffrey, P-047-JC16-NYC (October 19, 1995). Thus, under the Rules, posted literature which, in whole or in part, supports or attacks the candidacy of any individual seeking International office may not be removed by an employer at a work site where employees have a preexisting right to post such material.
The employer and the local union steward admit to removing literature similar to that submitted by Mr. Furst during the investigation, with one exception. While Mr. Furst claims that agents of either the employer or the local union removed a posting entitled “Ron Carey Action Fax,” representatives of both the employer and the local union strongly deny removing such a document. The local union and the employer both state that such a posting is easily identified as a piece of campaign literature relevant to the International officer elections which would not be removed under company policy. In light of the fact that the protester cannot identify exactly which postings were removed, the Election Officer credits this statement. She finds that, while other postings made by the protester were removed by the employer and
Mr. Fischer, the Ron Carey Action Fax, which does not fall into the category of postings about which the parties disagree, was not removed.
The Election Officer determines, however, that material concerning the International officer election was removed by the Mr. Fischer and the employer, in violation of the Rules. As stated above, the postings submitted by the protester contain a mix of criticisms of local union officers, the employer, and Mr. Hoffa. These materials include a letter entitled “FLEMING FOOD CONTRACT UPDATE.” In this letter, Mr. Furst criticizes the leader-ship of Local Union 430 for failing to participate in the resolution of a dispute between Local Union 430, Local Union 169, and Fleming. Mr. Furst accuses the officers of Local
Union 430 of deliberately delaying hearing proceedings in order to portray Mr. Carey as ineffectual and to support the candidacy of Mr. Hoffa.
While such a letter obviously implicates local union officer and criticizes their actions, it also supports Mr. Carey’s candidacy. Such a letter constitutes campaigning for an International officer candidate regardless of its reference to local union issues.
Another posting criticizes local union officers for supporting Mr. Hoffa’s candidacy when members of Mr. Hoffa’s slate have allegedly allowed employers to pay straight-time pay in lieu of overtime pay owed under the collective bargaining agreement. Again, while the article may be a political attack against local union officer, it also attacks Mr. Hoffa’s candidacy.
The other postings submitted by Mr. Furst similarly combine attacks on local officers and International candidates. The presence of references to local union officers and employer negotiations in a piece of literature that supports or attacks the candidacy of an individual seeking International office does not convert literature defined as campaigning, under the Rules, to an issue of purely local concern. Mr. Fischer and the employer, therefore, violated the Rules when they removed such literature.
Accordingly, the protest is GRANTED.
Todd Furst
October 17, 1996
Page 1
When the Election Officer determines that the Rules have been violated, she “may take whatever remedial action is appropriate.” Article XIV, Section 4. In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process. The Election Officer finds that Local
Union 327 must afford the same opportunity to the other slates with candidates with general president and/or secretary-treasurer that was given to the Carey campaign.
The Election Officer orders the following remedy:
1. Fleming Foods shall cease and desist from removing International officer campaign literature from the bulletin boards at its York, Pennsylvania facility where campaign material has previously been allowed to be posted.
2. Mr. Fischer and Local Union 430 shall also cease and desist from removing International officer campaign literature from the bulletin boards at Fleming Foods.
3. Fleming Foods is directed, within three (3) days of the date of this decision, to post the attached “Notice to Members of local Union 430” on the bulletin boards at its York, Pennsylvania facility.
4. Within seven (7) days of this decision, Fleming Foods shall file an affidavit with the Election Officer detailing its compliance with this order.
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
Todd Furst
October 17, 1996
Page 1
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, 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
Peter V. Marks, Sr., Regional Coordinator
NOTICE TO MEMBERS OF LOCAL UNION 430 EMPLOYED BY FLEMING FOODS
The Election Rules governing access to employer bulletin boards requires that employers provide non-discriminatory access for the posting of all material relevant to the International officer campaign if the employer allows the posting of any such material.
I have determined that Fleming Foods and an agent of Local Union 430 have removed material supporting the candidacy of a candidate for International office. To remedy this violation, I have ordered Fleming Foods and Local Union 430 to cease and desist from the removal of such literature.
____________________________
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 covered with any other material.