Protest Decisions

April 24, 1996

VIA UPS OVERNIGHT

Pat Miraglio

April 24, 1996

Page 1

Pat Miraglio, Secretary-Treasurer

Teamsters Local Union 439

1531 E. Fremont Street

Stockton, CA 95201

Will Rollins

c/o SDMI

16900 Schulte Road

Tracy, CA 95376

John Flanigan

c/o SDMI

16900 Schulte Road

Tracy, CA 95376

Ray Walbert

1288 W. 11th Street #234

Tracy, CA 95376

Pat Miraglio

April 24, 1996

Page 1

Re:  Election Office Case No. P-678-LU439-CSF

Gentlemen:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) by Pat Miraglio, a member of Local Union 439.  The protester alleges that:  1) Specialized Distribution Management, Inc. (SDMI) allowed delegate candidate Ray Walbert to campaign inside its facility while denying such access to other candidates, in violation of the Rules; 2) SDMI granted Mr. Walbert time off knowing he would use this time to campaign at the SDMI facility; and 3) Will Rollins, transportation manager for SDMI, provided Mr. Walbert with confidential information regarding employees for use in the campaign, which was an employer campaign contribution prohibited by the Rules.  The Election Officer deferred the protest for consideration post-election, pursuant to Article XIV, Section 2(f)(2) of the Rules.

Mr. Walbert responds that, on days when he worked at SDMI, he campaigned at the facility in break rooms while on break and not on employer time.  He further states that, during his vacation, he restricted his campaign activities to SDMI’s parking lot, to which all candidates had access.

Pat Miraglio

April 24, 1996

Page 1

John Flanigan, the operations manager of the facility, responds that it was SDMI’s policy to allow employees of SDMI to campaign on site at the facility so long as all involved are “on non-working time and in non-working areas” but that non-employee candidates are restricted to campaigning in the parking lot.

Mr. Rollins denies aiding Mr. Walbert’s campaign by giving him confidential information.  Mr. Walbert states that while he was a shop steward more than a year before the delegate election, he once asked Mr. Rollins if an employee had been fired for theft.  According to Mr. Walbert, Mr. Rollins confirmed that the employee had been fired for theft.   Mr. Walbert states that he used this information to campaign.

This protest was investigated by Adjunct Regional Coordinator Victoria Chin.

1.  Allegations of Granting Time Off for Campaigning at SDMI

The protester’s allegation that Mr. Rollins “granted time off to Ray Walbert knowing full well that he was ‘on site’ campaigning” is without merit.  The contention fails to allege a violation of the Rules.  An employee may take time off from work in order to campaign, if permitted by his employer.  The protester does not allege that the protested grant of vacation time was discriminatory.  There is, therefore, no violation of the Rules.

2.  Other Allegations of Campaigning on SDMI Premises

Article VIII, Section 11(d) of the Rules provides:

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.

Among the preexisting rights incorporated by this section are employee rights under the National Labor Relations Act and the Labor Management Relations and Disclosure Act to campaign on employer premises, as long as the activity is conducted on non-work time in non-work areas.  See Teller, P-062-LU741-PNW (February 7, 1991); Platt, P-449-LU150-CSF (February 21, 1996).  As a result, an employer policy that allows employees to campaign inside a facility in non-work areas and not on working time does not violate the Rules even if it also bars access to all areas of the facility but the parking lots to non-employees.

Pat Miraglio

April 24, 1996

Page 1

While Mr. Walbert denies campaigning inside the facility while on vacation, his credibility is in doubt due to contradictory statements he made during the investigation.  In addition, one witness stated that he saw Mr. Walbert campaign in a SDMI break room on a date on which Mr. Walbert was on vacation.  As a result, the Election Officer finds that

Mr. Walbert did campaign inside SDMI at least once while he was on vacation.  Further, by his own admission, Mr. Walbert has campaigned inside the facility several times when he was not on vacation.  There is no evidence that Mr. Walbert, either on or off vacation, campaigned on work time or in work areas.

It is undisputed by the parties that non-employees are permitted to campaign only in the parking lot at SDMI.

Mr. Walbert’s campaign activities are consistent with employer policy and do not violate the Rules.  The employer policy as explained by Mr. Flanigan and memorialized in a March 8, 1996 memo, does not distinguish between the right of access for campaign purposes of an employee who is on vacation and one who is not.  The policy only distinguishes between employees and non-employees.  As a result, the fact that Mr. Walbert was on vacation when he campaigned inside SDMI is not the basis for a violation of the Rules.

3.  Allegations of Employer Campaign Contribution

During the campaign, Mr. Walbert’s slate distributed campaign literature which stated that Pete Easton, a candidate on the same slate as Mr. Miraglio, was fired from SDMI for stealing.  When questioned as to where this information was obtained, Mr. Walbert stated that SDMI Transportation Manager Rollins confirmed to him that Mr. Easton had been fired for stealing.  Mr. Walbert states that this confirmation occurred more than a year before the delegate election when he was a shop steward at SDMI.

Mr. Rollins denies that he ever gave information to Mr. Walbert regarding any employees.  The protester denies that Mr. Easton was fired for stealing.  SDMI Operations Manager Flanigan has confirmed that Mr. Easton was not fired but resigned from his employment.

Any conversation regarding Mr. Easton’s employment status occurred long before the delegate election process.  Moreover, the Election Officer finds that the employer did not advise Mr. Walbert that Mr. Easton was fired.  Therefore, the underlying factual findings do not support the finding of any Rules violation.[1]

Accordingly, the protest is DENIED.

Pat Miraglio

April 24, 1996

Page 1

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

Matthew Ross, Regional Coordinator

Victoria Chin, Adjunct Regional Coordinator