November 8, 1996
VIA UPS OVERNIGHT
Thomas Willett & David Tucker
November 8, 1996
Page 1
Thomas Willett, Secretary-Treasurer
Teamsters Local Union 331
5 E. Washington Avenue
Pleasantville, NJ 08232
David Tucker
P.O. Box 73
Pleasantville, NJ 08232
Matthew O’Connor
225 Meadow Ridge
Smithville, NJ 08201
Joseph Yeoman, President
Teamsters Local Union 331
5 E. Washington Avenue
Pleasantville, NJ 08232
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Ron Carey Campaign
c/o Nathaniel K. Charny
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman, P.C.
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
Thomas Willett & David Tucker
November 8, 1996
Page 1
Re: Election Office Case Nos. P-1082-LU331-PNJ
P-1144-LU331-PNJ
Gentlemen:
Pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for
the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Local
Union 331 Secretary-Treasurer Thomas J. Willett and Local Union 331 member David L. Tucker. In P-1082-LU331-PNJ, Mr. Willett alleges that on October 4, 1996, he saw Local
Thomas Willett & David Tucker
November 8, 1996
Page 1
Union 331 member Matt O’Connor tear down a campaign sign that supported Ron Carey, IBT general president and a candidate for reelection, from a telephone pole near the local union hall. Mr. Willett alleges that he asked Mr. O’Connor not to do it and that Mr. O’Connor replied that he had the right to remove signs from public poles. Mr. Willett further contends that Local Union 331 member Dorothy Williams saw Mr. O’Connor tear down signs at a public intersection on October 8, 1996, while standing on an employer truck. In P-1144-LU331-PNJ, Mr. Tucker alleges that on October 23, 1996, Mr. O’Connor distributed campaign literature in support of James P. Hoffa, a candidate for general president, during working hours while using an employer truck. The Election Officer consolidated these protests because they involve similar allegations and parties.
With respect to P-1082-LU331-PNJ, Mr. O’Connor admits that he has taken down
Carey campaign signs and has had words with Mr. Willett about it. Mr. O’Connor denies
Ms. Williams’ allegation that he took down signs on October 8 while standing on an employer vehicle. As to P-1144-LU331-PNJ, Mr. O’Connor admits to distributing campaign literature supporting Mr. Hoffa. He states that he carries literature and buttons in his personal satchel and that if he has the opportunity to do so, he gives them out.
Regional Coordinator Peter V. Marks, Sr. investigated these protests.
Mr. Willett claims that on October 4, 1996, he saw Mr. O’Connor taking down Carey campaign signs from a telephone pole near the local union hall. Mr. Willett states that he spoke to Mr. O’Connor on the telephone about it and that Mr. O’Connor replied, “this is a public telephone pole and I will take them f’n down.”
The Election Officer has found that the posting of campaign signs and other materials in the public right of way is not protected by the Rules. Hoffa, P-1034-JC1-CLE (October 17, 1996); Braga, P-795-LU439-CSF (June 19, 1996). The Rules at Article VIII, Section 11(a) protect the right of union members to distribute literature and solicit support for candidates outside a meeting hall. Article VIII, Section 11(d) authorizes union members to use employer or union bulletin boards for campaign publicity, assuming that a pre-existing right has been established. That same section permits the distribution of campaign literature at campaign events occurring on employer or union premises when such activity has previously been allowed. A right to distribute campaign literature at an employer parking lot is available, within certain limitations, under Article VIII, Section 11(e) of the Rules.
The Rules, however, do not grant any right to distribute, post or receive campaign material at any other locations. “Union members who choose to post campaign materials on public utility poles or public signs existing along public streets or sidewalks are not engaging in conduct which is either protected or sanctioned by the Rules.” Hoffa; Braga. For the same reason, tearing down signs which have been posted on public utility poles, or other structures in the public right of way, is not within the jurisdiction of the Rules. Therefore, Mr. O’Connor did not violate the Rules when he removed a Carey campaign sign from a telephone pole near Local Union 331’s hall.
Thomas Willett & David Tucker
November 8, 1996
Page 1
Ms. Williams reported to the investigator that on October 8, 1996, she saw Mr. O’Connor removing signs from poles at shortly after 7:00 a.m. as she was returning from work. She states that he stood on a Kline Construction Company (“Kline”) truck to reach the signs.[1]
Mr. O’Connor states that Ms. Williams could not have observed him on October 4, because he had clocked in at work at 7:00 a.m. The Election Officer credits Mr. O’Connor’s denial of this incident, in view of his admission of other incidents in the protest. For the foregoing reasons, the Election Officer finds that this aspect of the protest is not supported by the investigation.
In P-1144-LU331-PNJ, Mr. Tucker makes a similar allegation against Mr. O’Connor concerning activities on October 23, 1996. Mr. Tucker’s witness, Larry Gibbs, is a member of Local Union 331 working for another employer. Mr. Gibbs states that on October 23, 1996 around 11:30 a.m., while he was waiting for his vehicle to be loaded in Atlantic City, New Jersey, “Matthew O’Connor . . . distributed ‘HOFFA’ campaign literature during his work hours while using a [Kline] vehicle.”
Mr. O’Connor responds that he was driving for Kline on that date between 10:30 a.m.
and 2:30 p.m., saw Mr. Gibbs and decided to stop to give him some campaign materials.
Mr. O’Connor states that he always carries Hoffa campaign materials with him in his satchel.
Article VIII, Section 11(a) of the Rules protects the right of an IBT member to “participate in campaign activities, including the right . . . to openly support or oppose any candidate, to aid or campaign for any candidate, and to make personal contributions.” The section further provides:
No candidate or member may campaign during his/her working hours. Campaigning incidental to work is not, however, violative of this section. Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is also not violative of this section.
“The Rules protect ‘incidental’ campaigning on work time in order to ensure that as members interact normally during the course of their on-the-job responsibilities, that interaction may include campaigning.” George, P-490-LU391-SEC (April 4, 1996). See Bryan, P-878-LU705-CHI (September 12, 1996) (taking a few moments to post campaign literature shortly before “punching out” is incidental); Benson, P-125-LU104-RMT (October 12, 1995) (stopping truck and handing out a piece of campaign literature during work time is incidental); 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]”).
Thomas Willett & David Tucker
November 8, 1996
Page 1
In assessing whether campaign activity falls within normal workplace interaction and is, thus, “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. See Raymond, P-434-LU572-CLA et seq. (March 14, 1996).
There was no evidence presented that Mr. O’Connor failed in his duties or interfered with another employee’s work. The witness on this issue, Mr. Tucker, is an employee of another employer who was waiting for his truck to be loaded. Mr. O’Connor did not interfere with Mr. Tucker’s work.
The Election Officer finds that Mr. O’Connor’s campaigning was incidental to his work and, thus, protected by the Rules.[2]
For the foregoing reasons, the protests are 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
Peter V. Marks, Sr., Regional Coordinator
[1] Kline is not currently an employer of IBT members and does not have a collective bargaining agreement with any IBT local union.
[2] During one of his interviews with the Regional Coordinator, Mr. O’Connor stated that he may have been on his lunch hour when he gave campaign materials to Mr. Gibbs. In view of the Election Officer’s finding that the distribution was incidental, Mr. O’Connor’s status as on work or on break time is not important.