Protest Decisions

              July 8, 1998

VIA UPS OVERNIGHT

Terry W. Meadows

July 8, 1998

Page 1

Terry W. Meadows

3040 Turpin Road

Decatur, IL  62521

Hoffa Slate

c/o Patrick J. Szymanski, Esq.

Baptiste & Wilder

1150 Connecticut Avenue, NW

Suite 500

Washington, DC  20036

Bradley T. Raymond, Esq.

Finkel, Whitefield, Selik,

  Raymond, Ferrara & Feldman

32300 Northwestern Highway

Suite 200

Farmington Hills, MI  48334

Gary M. Tocci, Esq.

Schnader, Harrison, Segal and Lewis

1600 Market Street

Philadelphia, PA  19103

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

Terry W. Meadows

July 8, 1998

Page 1

Re:  Election Office Case No. PR-108-LU916-NYC

Gentlemen:

Terry W. Meadows, a member of Local Union 916, filed a pre-election protest on May 12, 1998, pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against the Hoffa Slate and United Parcel Service (“UPS”).  The protester alleges that a Hoffa Slate bumper sticker affixed to an employer-owned vehicle in New York City violates the Rules.  The Hoffa Slate responds that it had no knowledge of the sticker and that it does not encourage or instruct its supporters to affix stickers to employer-owned vehicles.  UPS responds that the protest is untimely and that the company’s strict no solicitation rule prohibits the display of any campaign literature on its vehicles.

The protest was investigated by New York City Protest Coordinator Barbara C. Deinhardt.

Terry W. Meadows

July 8, 1998

Page 1

On Thursday, May 7, 1998, the protester observed a “Hoffa Slate in ‘98" sticker affixed to the side of a UPS delivery vehicle in New York City.  As evidence, Mr. Meadows submitted a number of photographs of the sticker on the truck to the Election Office.  None of the parties dispute the fact that the sticker was affixed to the UPS vehicle.  The Election Officer was unable to determine the identity of the individual who affixed the sticker to the truck.  The protest was received by the Election Office on Tuesday, May 12.

With regard to the issue of timeliness, the Election Officer finds the protest to be timely despite being filed one working day late.  The Rules, at Article XIV, Section 2(b), state, "Except as otherwise provided . . . all preelection protests . . . must be filed within two (2) working days of the day the protester becomes aware or reasonably should have become aware of the action protested or such protests shall be waived."

The requirement to promptly file protests is an important part of the election process.  The short time limits were designed to ensure that alleged violations of the Rules would be quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy in the event a violation is found.  Nevertheless, the Election Officer has not treated time limits as an absolute jurisdictional requirement, but rather as a prudential restriction.  Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995).  Because the issue of campaign stickers affixed to employer-owned vehicles is likely to recur, the Election Officer chooses to decide this case on the merits.

Article VIII, Section 11 of the Rules provides that “All Union members retain the right to participate in campaign activities, including the right to . . . support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.” However, the Rules strictly prohibit IBT members from appropriating union or employer property in order to make personal campaign statements.  Specifically, nothing in Article VIII or any other article of the Rules authorizes members to affix campaign material to employer-owned vehicles.

Furthermore, affixing campaign material to employer-owned vehicles results in improper contributions by those employers to the Hoffa campaign, as well as supplying the false impression that the employers endorse one candidate, in violation of Article XII, Section 1(b)(1) of the Rules.  That Section specifically states the following:

[N]o employer may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate.  These prohibitions extend beyond strictly monetary contributions made by an employer and include contributions or use of employer stationery, equipment, facilities and personnel.

Terry W. Meadows

July 8, 1998

Page 1

Employers are strictly liable for such a violation and can be directed to remove the campaign materials and post a notice.

During the initial election, the Election Office had an extraordinary number of cases involving bumper stickers.  In every case, there was no evidence of employer complicity and in most cases, the perpetrator placing the bumper sticker on the vehicle was unknown.  In order to develop a consistent and expeditious manner in which to handle the large number of anticipated bumper sticker cases during the rerun election, the Election Officer has decided to apply the following analysis to the issue of employer liability:  if an employer can show that it maintains and strictly enforces a policy prohibiting the placement of such materials on company vehicles (including the regular inspection of such vehicles for such materials and the removal of any material found) and if no employer agent was involved in the violation of the employer policy, the Election Officer will not find the employer liable for the violation.

In the instant case, UPS provided to the Election Office a copy of the “No Solicitation Rule,” which is strictly applicable to all employees.  The rule states, in relevant part, that:

1) [n]o employee shall solicit or promote support for any cause or organization during his or her working time or during the working time of the employee or employees at whom such activity is directed; and

2) [n]o employee shall distribute or circulate any written or printed material in work areas at any time, or during his or her working time or during the working time of the employee or employees at whom such activity is directed.

Applying the newly enunciated liability analysis to the instant case, the Election Officer finds UPS not liable for the violation of the Rules due to the following factors:  1) UPS maintains a strong no solicitation policy applicable to all employees;[1] 2) UPS unequivocally demands strict compliance with the rules promulgated by the policy; and 3) no employer agent was found to be involved in the violation of that policy.  Furthermore, as no evidence was found showing any involvement of the Hoffa Slate in affixing the sticker to the vehicle, that portion of the protest is also denied.

For the foregoing reasons, the protest is DENIED.

Terry W. Meadows

July 8, 1998

Page 1

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) 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, 444 North Capitol Street, NW, Suite 445, Washington, DC  20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Michael G. Cherkasky

Election Officer

MGC:chh

cc:              Kenneth Conboy, Election Appeals Master

Barbara C. Deinhardt, New York City Protest Coordinator