October 15, 1996
VIA UPS OVERNIGHT
Robert McDonald
October 15, 1996
Page 1
Robert McDonald
11216 Morocco, N.E.
Albuquerque, NM 87111
Bill McNeese
Yellow Freight Systems
900 64th Street, N.W.
Albuquerque, NM 87121
David Larson
Yellow Freight Systems
900 64th Street, N.W.
Albuquerque, NM 87121
David Willey
Yellow Freight Systems
900 64th Street, N.W.
Albuquerque, NM 87121
Daniel Hornbeck
Yellow Freight Systems
10990 Roe Avenue
Overland Park, KS 66207
Robert Younger, Secretary-Treasurer
Teamsters Local Union 492
4269 Balloon Park Road, N.E.
Albuquerque, NM 87109
Ron Carey Campaign
c/o Nathaniel Charny
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
Robert McDonald
October 15, 1996
Page 1
Re: Election Office Case No. P-1014-LU492-RMT
Gentlemen:
Robert McDonald, a member of Local Union 492, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) alleging that Yellow Freight Systems (“Yellow Freight”) violated the Rules by refusing to allow IBT General President and candidate for re-election Ron Carey and six other non-employees, including the protester, to campaign on the premises of its Albuquerque,
New Mexico, terminal on September 23, 1996. Mr. McDonald states that he and other non-employees have campaigned in non-work areas in the facility in the past. Mr. McDonald also alleges that Local Union 492 warned Yellow Freight of Mr. Carey’s impending visit and asked the employer to refuse access to the Carey group.
Robert McDonald
October 15, 1996
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Yellow Freight responds that it did not know in advance of Mr. Carey’s visit, that it learned of Mr. Carey’s presence on the premises when Mr. Carey was already in a break room, and that it immediately asked Mr. Carey and the other non-employees to leave. Yellow Freight states that its policy is to refuse access to non-employees except to the parking lot for campaign-ing, under the Rules. It further states, upon internal investigation, that management has no knowledge of campaigning on the premises by non-employees in the past.
Local Union 492 states that it had no advance knowledge of Mr. Carey’s visit and that no one from the local union called Yellow Freight about the visit.
This protest was investigated by Regional Coordinator Jonathan Wilderman.
The investigation revealed that Mr. Carey arrived in the Albuquerque area on the night of September 22, 1996. On the morning of September 23, he and other members visited several employer facilities, arriving at the Yellow Freight terminal at approximately 10:00 a.m.
Mr. Carey was accompanied at that time by IBT At-Large Vice President and candidate for re-election Jim Benson, Mr. McDonald, and four other non-employees.
Yellow Freight terminal manager David Larsen states that at approximately 10:20 a.m., he received a telephone call from his secretary, who said that Mr. Carey was in the facility’s lunch room. Mr. Larsen further states that he went to the lunch room, introduced himself, and asked Mr. Carey and the other non-employees to leave.
The Rules provide for only two forms of access for non-employees to employer premises: (1) under the “parking lot rule,” which creates a limited right for non-employees to campaign in parking lots where members park their cars;[1] and (2) to other parts of employer premises if non-employees have had past access under a “preexisting” right or practice.[2] Gasman, P-966-LU283-MGN (October 14, 1996); Thomas, P-922-LU347-CHI (September 30, 1996); Hoffa, P-957-IBT-MGN (October 2, 1996), appeal pending.
Robert McDonald
October 15, 1996
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In this matter, Mr. McDonald contends that a preexisting right exists for non-employees to campaign on the premises of Yellow Freight’s Albuquerque terminal. He states that he campaigned there himself in March, 1996, when he was running for the position of IBT Convention delegate. He also contends that local union officers have campaigned on the docks of the terminal in the past.
The existence of such a preexisting right is denied by Yellow Freight and by Local
Union 492. Mr. Larsen states that he has been terminal manager for three years and that he is unaware of any non-employee campaigning on the premises (except the parking lot) during his tenure. Yellow Freight further states that non-employees were not allowed to campaign on the premises before Mr. Larsen’s tenure. Local Union Secretary-Treasurer Robert Younger stated while he was unaware of Yellow Freight policy on the subject, he knew that the employer refused to permit non-employee Pat Thieman to campaign on the dock during the International delegate election.
The Election Officer credits all of the foregoing representations by Mr. McDonald, Yellow Freight, and Mr. Younger. The Election Officer finds that Yellow Freight has an established policy against non-employee access to its premises, except to the parking lot for campaigning under the parking lot access provisions of the Rules. With respect to
Mr. McDonald’s statements, the Election Officer also finds that some non-employees have campaigned on Yellow Freight’s premises without the employer’s knowledge.
On this record, the Election Officer does not find a preexisting right for non-employees to access Yellow Freight’s Albuquerque terminal for campaigning. Under the Rules, one source of “preexisting rights” is past practice at the employer, Brinkmann, P-151-LU305-PNW
(September 18, 1995), aff’d, 95 - Elec. App. - 21 (KC) (October 10, 1995); In Re: Hall, 90 - Elec. App. - 1 (October 4, 1990), even if it has developed in the face of a contrary employer policy or a contrary provision in the collective bargaining agreement. See Blake, P-953-LU848-CLA (October 30, 1991) (finding that past practice of unrestricted postings on local union bulletin board had created preexisting right to use board for campaigning, in spite of contrary provision in collective bargaining agreement). To find such a past practice, however, the evidence must show knowledge and toleration on the part of the employer. Evidence of unauthorized and unknown incidents is insufficient. In Re: Batham, 96 - Elec. App. - 225 (KC) (August 16, 1996) (requiring “concrete evidence that the employer representatives at the site knew about, and permitted” the activity alleged to constitute past practice).
In this matter, these is no evidence that Yellow Freight has known about or condoned access to its Albuquerque facility by non-employees for campaigning. In the absence of a preexisting right under the Rules for Mr. Carey and his group to be on Yellow Freight’s premises, it did not violate the Rules for Yellow Freight to eject them.[3]
With respect to Mr. McDonald’s allegation that Local Union 492 warned Yellow Freight of Mr. Carey’s visit and asked that Mr. Carey be denied access, the local union states that it had no knowledge of the visit and made no such call. In view of the finding above that Mr. Carey
Robert McDonald
October 15, 1996
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and his group had no right under the Rules to be on Yellow Freight’s premises, and that Yellow Freight did not violate the Rules when it ejected them, it is not necessary to resolve this issue.
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
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
Jonathan Wilderman, Regional Coordinator
[1]Article VIII, Section 11(e)(iii) of the Rules states that “a candidate for International office and any Union member within the regional area(s) in which said candidate is seeking office may distribute literature and/or otherwise solicit support in connection with such candidacy in any parking lot used by Union members to park their vehicles in connection with their employment in said regional area(s).”
[2]Article VIII, Section 11(d) of the Rules states that “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.”
[3]Mr. McDonald does not allege that Yellow Freight denied access to its parking lot.