January 26, 1999
VIA FIRST-CLASS MAIL
Art Persyko
January 26, 1999
Page 1
Art Persyko
3557 Whitsell Avenue
Palo Alto, CA 94306
Mike Riley
Terminal Manager
CF Motor Freight
499 Valley Drive
Brisbane, CA 94005
Arthur Hackworth, Esq.
Consolidated Freightways
175 Linfeld Drive
Menlo Park, CA 94025
Van Beane, Secretary-Treasurer
Teamsters Local Union 85
2660 Newhall Street, Suite 205
San Francisco, CA 94124
Art Persyko
January 26, 1999
Page 1
Re: Election Office Case No. PR-371-LU85-EOH
Gentlemen:
Art Persyko, a member of Local Union 85, 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 Mike Riley, the terminal manager at the Brisbane, California facility of Consolidated Freightways (“Consolidated”) and Consolidated. The protester alleges that Consolidated prohibited him from distributing or posting campaign literature or otherwise campaigning anywhere inside their Brisbane facility, in violation of the Rules.
Mr. Riley responds that Consolidated does not allow employees to campaign during working hours and that while he ultimately did not object to Mr. Persyko placing literature on the union bulletin board located at the facility, Consolidated maintained a policy prohibiting the distribution and placement of campaign literature on the tables and floors of the employee break rooms. He also stated that much of the literature distributed by Mr. Persyko was not related to the International Officer Rerun Election. The Election Officer deferred this protest for post-election review pursuant to his authority under Article XIV, Section 2(f)((2) of the Rules.
The protest was investigated by Protest Chief Mary Leary.
Art Persyko
January 26, 1999
Page 1
Mr. Persyko is employed at the Consolidated facility in Brisbane. Approximately 30 other employees at the facility are also IBT members. Before starting his shift on November 3, 1998, Mr. Persyko placed and posted campaign literature relating to the International Officer Rerun Election as well as other non-campaign literature on the tables and bulletin board located in the facilities break room. When he returned to the break room later that morning, he discovered that all of the campaign literature had been removed and placed in the break room garbage can. Mr. Persyko then repositioned the literature on the break room tables and bulletin board.
Later that same day, Mr. Riley informed the protester that it was against Consolidated policy to allow any political campaign materials or campaigning at the worksite. After Mr. Riley observed that Mr. Persyko had repositioned the campaign literature in the break room, he reminded Mr. Persyko about the company policy prohibiting the distribution of campaign literature, adding that Mr. Persyko could only campaign inside the company parking lot or outside of the premises at the main gate.
On November 10, 1998, Mr. Riley informed the Election Office investigator that he had no objection to campaign literature being posted on the union bulletin board, but that company policy continued to prohibit the placement of the literature on the break room tables and floor. That same day, Mr. Riley informed the protester that he could post campaign literature on the union bulletin board before or after work but not during working hours.
Article VIII, Section 11(d) of the Rules states as follows:
No restrictions shall be placed upon candidates’ or members’ preexisting rights to use employer or Union bulletin boards for campaign publicity. Similarly, 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. Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.
Mr. Riley has been employed at the Brisbane facility since approximately May, 1997. During the investigation of this protest, he informed the Election Office investigator that he had no knowledge of the company allowing any campaign literature to be distributed in the break room in the past. However, Mr. Persyko provided witnesses and evidence to the Election Office showing that during both the 1991 and 1996 International Officer Elections as well as during local union elections from as far back as 1989, campaign literature had been both distributed in the Brisbane break room as well as posted on the union bulletin board located there.
Art Persyko
January 26, 1999
Page 1
The Election Officer notes that Mr. Riley concedes that campaign literature may be posted on the break room union bulletin board and on November 10, 1998, informed Mr. Persyko of his right to post campaign literature on the union bulletin board. Accordingly, the portion of the protest relating to the union bulletin board is resolved. However, the Election Officer finds that Consolidated’s failure to allow Mr. Persyko to distribute campaign literature related to the International Officer Rerun Election and to place it on the tables of the break room during non-work time constitutes a violation of the Rules, due to the established precedent of employees placing campaign literature there in the prior International Officer and Delegate Elections. The Election Officer, however, sustains Consolidated’s policy prohibiting the placement of campaign literature on the floor of breakroom.
These matters are being considered in a post-election context. Therefore, the Election Officer will examine whether the violations “may have affected the outcome of the election.” As the Election Officer previously stated in Cheatem, Post-27-EOH (August 21, 1997):
[T]he Election Office concludes that this election is presumed to be fair and regular. Therefore, in order to grant a post-election protest, the evidence must overcome this presumption by demonstrating a violation of the Rules that may have affected the outcome of the election. This is consistent with DOL’s standard for certification of supervised elections.
Id. at 105.
Although Consolidated violated the Rules, only approximately 30 IBT members could have been affected by Mr. Riley’s refusal to allow the distribution of campaign literature in the break room. None of the International Officer Rerun Election candidates that these 30 members could have voted for lost or won their elections by a margin of 30 votes or less. As a result, the Election Officer concludes that the violations committed by Consolidated at the Brisbane, California facility did not sufficiently affect the outcome of the International Officer Rerun Election. Accordingly, the protest is DENIED.
The violations, however, impacted the rights of members at Consolidated’s Brisbane, California facility to distribute and to receive campaign literature in the International Officer Rerun Election. Although the election is over, notice of these violations will serve to inform the IBT members of their rights and as guidance for employers in future supervised International Officer Elections that may be conducted using a Rules-based regimen. Consolidated is therefore directed to sign, date and post for sixty (60) days the attached “Notice to Employees and IBT Members” on the bulletin boards where employee notices are posted at its Brisbane, California facility.
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 a 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
Notice to Employees and IBT Members at the Brisbane Consolidated Freightways Facility |
The Election Officer recently determined that Consolidated Freightways violated the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by improperly restricting the right of Teamster members to distribute campaign literature in the break room at its Brisbane, California facility.
The Rules provide that employers may not place restrictions upon a members preexisting right to use employer bulletin boards or to distribute leaflets or literature in the IBT International Officer Election. Because Consolidated improperly prohibited the distribution of campaign literature during the recent International Officer Rerun Election, the Election Officer has ordered us to post this Notice.
Dated: ___________________ By: ___________________________
___________________________
Title
This is an official notice required by Election Officer Michael G. Cherkasky which must remain posted for 60 consecutive days and must not be defaced or altered in any manner or be covered with any other material.