November 17, 1998
VIA FIRST CLASS MAIL
Steven V. Dias
November 17, 1998
Page 1
Steven V. Dias
96 Salem Road
Schwenksville, PA 19473
Howard Fisher, Rec. Sec.
Teamsters Local Union 384
2910 Hannah Avenue
Norristown, PA 19401
John Fitzgerald, Plant Manager
Fleming, GMD
208 W. Church Road
King of Prussia, PA 19406
William H. Snead, President
Teamsters Local Union 384
2910 Hannah Avenue
Norristown, PA 19401
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
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
Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
Arthur Z. Schwartz, Esq.
Kennedy, Schwartz & Cure
113 University Place
New York, NY 10003
Steven V. Dias
November 17, 1998
Page 1
Re: Election Office Case No. PR-363-LU384-EOH
Gentlemen:
Steven V. Dias
November 17, 1998
Page 1
Steven Dias, a member of Local Union 384, 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 his employer, Fleming Company, GM Division (“Fleming GMD”). The protester alleges that the management of Fleming GMD removed campaign stickers supporting the Tom Leedham “Rank and File Power” Slate from company property despite having allowed campaign stickers in support of the Hoffa “Unity” Slate (“Hoffa Slate”) to remain in the past, in violation of the Rules. Fleming GMD responds that as soon as it became aware of any campaign stickers on employer property, it had all of the stickers removed.
The protest was investigated by Election Office Staff Attorney Peter F. Gimbrère.
Mr. Dias is employed at the Fleming GMD facility located in King of Prussia, Pennsylvania. The protester asserts that in July 1998, Local Union 384 Business Agent Howard Fisher distributed Hoffa Slate campaign literature and other campaign paraphernalia, including stickers, to employees at the King of Prussia Fleming GMD facility. According to the protester, the employees subsequently attached the Hoffa Slate campaign stickers to employer property located in the warehouse of the facility.
On October 28, 1998, Leedham Slate campaign materials were distributed to the employees at the same facility. The campaign materials included literature and stickers. The protester, along with other employees, attached the stickers to employer-owned equipment and machinery in the warehouse. At that point, Fleming GMD management ordered all of the campaign stickers removed from all employer property. The protester initially refused to comply with this order due to his belief that removing the recently-placed Leedham Slate stickers after having allowed the Hoffa Slate stickers to remain posted for over three months constituted discrimination against the Leedham Slate and in favor of the Hoffa Slate. However, after being given a direct order by Warehouse Manager John Fitzgerald, the protester complied and then filed this protest.
Mr. Fitzgerald denies ever allowing one set of stickers while prohibiting another set. He states that on the day in question, he noticed that “about 50 stickers had been placed on every forklift.” At that time, he ordered that all stickers, supporting both the Leedham Slate and the Hoffa Slate, be removed from all company property. He denies ever being aware of the existence of any Hoffa Slate stickers prior to the day he ordered all of the stickers removed. He also asserted that he never communicated with any representatives of Local Union 384 about the matter. Mr. Fisher states that at no point did he or any other representative of Local Union 384 ever communicate with any employer representative in an attempt to persuade the company either to allow the Hoffa Slate stickers to remain or to have the Leedham Slate stickers removed.
The Rules at Article VIII, Section 11(d) state that:
No restrictions shall be placed upon candidates’ or members’ preexisting rights to use employer or Union bulletin boards for campaign publicity . . . Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.
Steven V. Dias
November 17, 1998
Page 1
However, this nondiscrimination clause is extended by the Rules solely to those campaign activities that are also considered legitimate under the Rules in the first place, such as the posting of campaign literature on bulletin boards or allowing a candidate access to an employer facility in order to campaign.
With respect to the application of campaign stickers to employer-owned property, it is well-established that the Rules strictly prohibit IBT members from appropriating union or employer property in order to make personal campaign statements. See Iund, PR-289-LU638-NCE (October 28, 1998). Specifically, nothing in Article VIII or any other article of the Rules authorizes members to affix campaign material to employer-owned property. Therefore, the protesters own act of placing the Leedham Slate stickers on employer-owned property was not an activity protected or encouraged by 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:
[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.
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.
The investigation established that no Fleming GMD agents were involved in applying the campaign stickers to employer-owned property and that Fleming GMD maintains a policy prohibiting the defacement of employer-owned property which is strictly applicable to all employees. See Meadows, PR-108-LU916-NYC (July 8, 1998) Applying the above analysis, the Election Officer finds Fleming GMD not liable for the violation of the Rules. Furthermore, Fleming GMD has agreed to implement increased enforcement procedures in response to discussions with the Election Office and has directed that all campaign stickers be immediately removed from all employer-owned property consistent with its 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.
Steven V. Dias
November 17, 1998
Page 1
Accordingly, the protest is DENIED.
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