Protest Decisions

              November 27, 1996

VIA UPS OVERNIGHT

Jack Barmon

2610E S. Arlington Mill Drive

Arlington, VA  22206

Tyrone Brewster

Teamsters Local Union 769

8350 N.W. 7th Avenue

Miami, FL  33150

Cliff Muncey

Tri-State Dairy, Inc.

17707 N.W. Miami Court

Miami, FL  33169

Re:  Election Office Case No. P-1270-LU769-CSF

Gentlemen:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Jack Barmon, a member of Local Union 278.  Mr. Barmon alleges that an IBT employer, Tri-State Dairy, Inc. (“Tri-State”), refused to allow supporters of Ron Carey, incumbent general president and a candidate for reelection, to campaign in its employee parking lot.  The protester also alleges that Local Union 769 Business Agent Tyrone Brewster campaigned in a Tri-State work area on union-paid time.

Tri-State denies that Mr. Brewster campaigned in the work area of its facility.  Mr. Brewster denies having campaigned in an employer work area on union-paid time, but admits having campaigned on one occasion after a discharge case was heard on Tri-State premises.  Mr. Brewster states that such campaigning was incidental to legitimate union functions. 

This protest was investigated by Regional Coordinator J. Griffin Morgan.

1.              Denial of Access to Employee Parking Lot

Article VIII, Section 11(e) of the Rules creates a limited right-of-access to IBT members and candidates to distribute literature and to seek support for their campaign in any parking lot used by union members to park their vehicles in connection with their employment.  While “presumptively available,” this right is not without limitations.  It is not available to any employee on work time, and candidates and their supporters cannot solicit or campaign to employees who are on work time.  It is also restricted to campaigning that will not materially interfere with an employer’s normal business activities.

Mr. Morgan contacted Tri-State regarding the denial of access to Carey supporters.  After reviewing the Election Officer’s Advisory on Limited Right of Access to Employer Premises, Tri-State has agreed to permit all campaigners access to its employee parking lot.  Mr. Barmon and several other Carey supporters have since campaigned at Tri-State.[1]  Therefore, the Election Officer finds the access provided to protesters to be consistent with that mandated by Article VIII, Section 11(e) of the Rules.

2.              Allegation of Campaigning by Union Business Agent

As to the allegation that Mr. Brewster campaigned in Tri-State’s work area on union-paid time, the investigation revealed that the sole basis of Mr. Barmon’s allegation is a statement allegedly made by John Cochran, production manager at Tri-State.  According to the protester, Mr. Cochran, on November 8, 1996, told him that Mr. Brewster had on previous occasions “saturated the facility” with pro-Hoffa campaign literature; therefore, IBT members employed at the facility had been informed on the issues by Mr. Brewster, Mr. Cochran allegedly stated.  The protester states that Mr. Cochran directed further inquiries on the matter to Plant Manager Keith Pardue.

Mr. Cochran denies telling Mr. Barmon about Mr. Brewster’s alleged activities.  He states that he has seen no campaigning at the plant--except for the posting of a few bumper stickers, which were immediately reported to Mr. Pardue.  Mr. Pardue and Cliff Muncie, vice president and plant manager at Tri-State, state that, except for the November 19 and 20 campaigning by Carey supporters, no campaigning has occurred inside or outside the plant.  Mr. Brewster states that he distributed pro-Hoffa campaign literature on just one occasion.  On  November 11, following a discharge hearing, he stopped in the employee parking lot to speak with a steward about the hearing.  At the end of the conversation, Mr. Brewster and the steward spoke about the election.  Mr. Brewster admits that he distributed pro-Hoffa campaign literature to the steward. 

Article VIII, Section 11(b) of the Rules states that “officers and employees . . . of the Union may not campaign on time that is paid for by the Union.  Campaigning incidental to regular Union business is not . . . violative [of the Rules].”  The Election Officer has applied the “incidental” exception to campaign-related conversations that local union officers and employees have with members while transacting legitimate union business, Raymond, P-434-LU572-CLA et seq. (March 14, 1996); Newhouse, P-253-LU435-RMT (January 4, 1996), as well as to brief, campaign-related parts of conversations that were otherwise about legitimate union business.  Jackson, P-842-LU612-SEC (August 14, 1991); Draeger, P-486-LU823-MOI (February 20, 1991).  Brief campaigning before or after legitimate union business also may fall within the bounds of incidental campaigning.  Dillon, P-467-LU284-CLE (March 4, 1991).

Here, the Election Officer finds that the evidence presented by the protester is insufficient to sustain a violation of the Rules.  Mr. Cochran credibly denies that Mr. Brewster has campaigned in work areas during time paid for by the local union.  Further, Mr. Brewster’s denial that such campaigning has occurred is corroborated by Mr. Cochran and Mr. Pardue.  While the evidence does indicate that Mr. Brewster had a brief campaign-related conversation with a steward on November 11 following a discharge hearing, such campaign-related activity was incidental to Mr. Brewster’s legitimate business at the facility and does not violate the Rules.

              Accordingly the protest is RESOLVED as to the denial of access to the employee parking lot, and DENIED in all other respects.

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

J. Griffin Morgan, Regional Coordinator