October 28, 1998
VIA FIRST CLASS MAIL
James M. Iund
October 28, 1998
Page 1
James M. Iund
19970 Gladiola Street, NW
Oak Grove, MN 55011
James Berdahl
1068 Raymond Avenue
Apt. 303
St. Paul, MN 55108
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
James M. Iund
October 28, 1998
Page 1
Re: Election Office Case No. PR-289-LU638-NCE
Gentlepersons:
Jim Iund, a member of Local Union 638, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against James Berdahl, a member of Local Union 638. The protester alleges that Mr. Berdahl violated the Rules by defacing and removing pro-Hoffa stickers. Mr. Berdahl admits that he placed the overlay stickers on and scraped off Hoffa stickers, but states that he only removed those stickers that were improperly located on employer property.
The protest was investigated by Regional Coordinator Judith E. Kuhn.
James M. Iund
October 28, 1998
Page 1
The facts are undisputed. Both Messrs. Iund and Berdahl are employed at the UPS facility located in Minneapolis, Minnesota. On July 31, 1998, Mr. Iund observed Mr. Berdahl pasting small stickers bearing the words “Kill” or “Shoot” or “Jail” on top of stickers that bore the slogan “Hoffa Now” on employer-owned carts causing the stickers to read “Kill Hoffa” or “Shoot Hoffa” or “Jail Hoffa.” Also, on about August 14, Mr. Iund saw Mr. Berdahl with a putty knife, scraping the Hoffa stickers off of the employer carts. Mr. Iund reported the incidents to the UPS Loss Prevention Department.
Article XIV, Section 2(b) of the Rules requires protesters to file “within two (2) working days of the day when the protester becomes aware or reasonably should have become aware of the action protested.” The short time limits are important to ensuring that alleged violations of the Rules are quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy if 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).
In the instant case, Mr. Iund states that with regard to both of the alleged Rules violations, he was unaware of his right to file a protest until September 12, 1998, when he received the decision against him in Senum, PR-167-LU638-EOH (September 8, 1998), aff’d, 98 - Elec. App. - 378 (KC) (September 25, 1998). Consequently, he filed his protest on September 14, 1998. Because the issue of campaign stickers affixed to employer-owned property 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 Election Officer notes that he does not condone any actions that encourage the use of explicit violence against any candidate. There is no place in the Rerun Election for any threats of physical violence regardless of how directly or indirectly they are presented.
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 property. Therefore, regardless of what Mr. Berdahl placed on employer-owned property, his conduct was not within the purview of the Rules.
Furthermore, affixing campaign material to employer-owned property may result in improper contributions by those employers to the respective 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:
James M. Iund
October 28, 1998
Page 1
[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.
Accordingly, the Election Officer finds that Mr. Bergdahl violated the Rules by his campaign related conduct in defacing the Hoffa campaign stickers when he placed additional stickers on employer-owned carts.
If an employer can show that it maintains and strictly enforces a policy prohibiting the placement of such materials on company property (including the regular inspection of such property 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.
UPS maintains and enforces a “No Solicitation Rule,” which is strictly applicable to all employees. See Meadows, PR-108-LU916-NYC (July 8, 1998) [1] Applying the above analysis, the Election Officer finds UPS not liable for the violation of the Rules. Furthermore, UPS has implemented increased enforcement procedures in response to discussions with the Election Office and has directed that all campaign stickers be removed from all employer-owned property consistent with its no solicitation policy. In these circumstances, the Election Officer concludes that further processing of this protest is unwarranted. The violations alleged in the protest have been addressed consistent with the Rules.
Accordingly, the protest has been RESOLVED based on the strict enforcement of the UPS no solicitation policy; and GRANTED as to Mr. Bergdahl.
When the Election Officer determines that the Rules have been violated, he “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 electoral process. Therefore, the Election Officer orders
James M. Iund
October 28, 1998
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Mr. Bergdahl to immediately cease and desist pasting campaign related stickers on any employer-owned property and to immediately cease and desist defacing any properly posted campaign materials.
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
cc: Kenneth Conboy, Election Appeals Master
Judith E. Kuhn, Regional Coordinator
[1] 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.