IN RE: MIKE SCOTT,
Protest Decision 2001 EAD 273
Issued: March 26, 2001
OEA Case Nos. PR0307110CA
Mike Scott, a member of Local Union 938, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). He alleges that candidate Joe Jephson impermissibly campaigned on work time at an employer facility.
Election Administrator representative Jeffrey Ellison investigated the protest.
Findings of Fact and Analysis
Scott and Jephson drive for Purolator Courier. On March 5, Scott arrived at Purolator's Ontario hub on a scheduled delivery. He entered the cafeteria at approximately 9:00 p.m. and observed Jephson distributing campaign literature supporting the 938 Members slate. Scott states that Jephson had several stacks of literature arranged on a cafeteria table, and he was actively soliciting others present. Scott estimates 20 persons were in the cafeteria at the time. Scott left the cafeteria after a couple of minutes. When he returned 20 minutes later, Jephson and the literature were gone.[1]
Jephson denies he distributed campaign literature or otherwise campaigned in the Ontario hub cafeteria. Further, he denies being present in the cafeteria at the time alleged by Scott. Shop steward Jason Porter corroborated Jephson's denial. Jephson also stated that he goes to the cafeteria at times when he is waiting for his truck to be loaded, when he has no work duties. We infer that when workers are in the Purolator cafeteria, they also are ordinarily not performing work.[2]
The Rules protect pre-existing rights to campaign on employer property, so long as the campaigning takes place during non-work time. See Article VII, Section 11(d). Purolator maintains a policy that provides that "[n]o employee will engage in selling (with the exception of Purolator products), soliciting, or gambling on Company time or property." In a memo to Jephson dated March 1, 2001, it interpreted this policy as precluding "campaigning [or] soliciting support or votes while on Company time or property…,". This would appear to preclude a finding that there is a pre-existing right to campaign on Purolator property, other than its employee parking lots. See, Berg, 2001 EAD 267 (March 26, 2001).
However, Ontario law makes it clear that Purolator's policy cannot be applied to prohibit internal union activity during non-work time in non-work areas on the employer's premises. See, Adams Mine v. United Steelworkers of America, 1 CLRBR (NS) 384, 395 (December 8, 1982)(George W. Adams, Q.C., Chairman), and cases cited therein. As is true under federal labor law in the United States, workers in Ontario have the right to engage in conduct such as allegedly engaged in by Jephson during his non-working time at Purolator on March 5:
Because the workplace is a most appropriate theatre for membership solicitation, it has been considered reasonable and fair to construe break and lunch periods as non-working time belonging to employees to use as they see fit so long as they do not engage in disorderly conduct or adversely affect other legitimate business interests of the employer. Where they decide to use this time to engage in protected trade union activity, this statute [the "Labour Relations Act"] and the remedies available under it apply. To this extent, property rights have been encroached upon by the statute. And while this is a factual issue in any particular case, union solicitation during non-working time will not generally interfere with the employer's legitimate management interests. Any interference must be real and constitute more than a minor annoyance or inconvenience.
Id.
Accordingly, we find that Ontario law provides a sufficient basis from which to conclude that there is a pre-existing practice allowing the type of non-work time, non-work area campaign activity that Jephson is alleged to have engaged in here. As such, Article VII, Section 11(d) of the Rules requires that we DENY the protest.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was
not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street NW, Tenth Floor, Washington, DC 20005 (fax: 202-454-1501), all within the time prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2001 EAD 273
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Mike Scott
422 Sixth Street
Collingwood, ON L9Y 1Z7
Canada
Joe Jephson
510-27 Bergamount Avenue
Toronto, ON M6V 1W5
Canada
IBT Local 938
275 Matheson Blvd. West
Mississauga, ON L4Z 1X8
Canada
John Hull
3231 Eglinton Avenue East
Apt. 1705
Toronto, ON M1J 3N5
Canada
Ray Bartolotti
c/o Watson Kucey
Labour Lawyers
3555 Lakeshore Blvd. West
Toronto, ON M8W 1P4
Canada
Ray Bartolotti
63 Centennial Parkway South
Stoney Creek, ON L8G 6T1
Canada
Michael J. Goldberg
73 Harrowgate Drive
Cherry Hill, NJ 08003
Purolator Courier, Ltd.
Legal Department
5995 Avebury Road
Mississauga, ON L5R 3T8
Canada
[1] Scott offered no evidence in support of his protest allegation that Jephson transported the campaign material in an employer-owned vehicle.