ELECTION APPEALS MASTER
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IN RE FRED ZUCKERMAN,
2015-2016 EAM 37 (KAR) (ESD 343) PROTESTOR.
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Protest Decision 2016 ESD 343 (ESD 343) was issued on December 15, 2016. ESD addressed a protest by Fred Zuckerman, candidate for IBT General President on the Teamsters United slate alleging that John Murphy, a candidate for IBT vice president at large on the Hoffa-Hall 2016 slate, campaigned inside an employer’s facility while on time paid for by the union in violation of the Rules.
Decision of the Election Supervisor
The protest alleged that Mr. Murphy campaigned at Excel Industries in Toledo, Ohio, on October 6, 2016. The protestor was unable to identify a witness to the alleged conduct. The Office of the Election Supervisor therefore obtained information from Mr. Murphy, his companions, and the employer.
It is undisputed that Mr. Murphy campaigned at Excel with two officers of Toledo-based Local Union 20, which has jurisdiction over the employer. Mr. Murphy stated that he took a vacation day to campaign and there is no contrary evidence. It is further undisputed that while Murphy and the others were present in the parking lot, a member of management came out, was introduced to Mr. Murphy by the Local Union 20 officials, and that the three were invited inside the facility by management. While inside the facility, Mr. Murphy greeted and shook hands with several employees. Mr. Murphy, the Local Union 20 representatives who were present and management all deny that campaign leaflets were distributed and there is no contrary evidence. It is undisputed that management received no request from the Mr. Zuckerman or the Teamsters United slate for similar access.
The Election Supervisor denied the protest, stating:
Article VII, Section 12(d) protects pre-existing rights[1] of candidates and members to “solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events, or engage in similar activities on employer … premises. Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis.” In contrast to Article VII, Section 12(c), which requires a union to give advance, written notice of the availability of union facilities for a campaign purpose before they may be used in that capacity, Article VII, Section 12(d) does not require an employer to give similar advance, written notice. Rather, an employer granting such access is prohibited only from doing so on a discriminatory basis. To establish a violation of Article VII, Section 12(d), a protestor must prove that request for access on reasonable notice was made of the employer and denied, while access was granted by the employer to another candidate or campaigner. Cobb, 2001 EAM 100 (October 19, 2001), recon. den., 2001 EAM 100(a) (October 26, 2001) (“to state a viable protest, the candidate or campaigner [protesting improper campaign access by an opponent to the employer’s workplace] must affirmatively establish that he specifically requested, on reasonable notice, access and was denied”); Pope, 2011 ESD 352 (October 31, 2011) (Rules violated where campaigner requested access to employer facility to campaign, was denied, and then opposing candidate was permitted such access); Hoffa-Hall 2016, 2015 ESD 11 (July 22, 2015) (protest claiming impermissible access to employer premises to campaign was denied where protestor did not request similar access).
Appeal of ESD 343
Mr. Zuckerman timely appealed ESD 343, stating:
There was no pre-existing right to campaign inside the premises of Excel Industries; therefore, John Murphy’s use of his union position to enter this otherwise restricted area for campaign purposes is not protected under Article VII, Section 12(d) of the Rules and constitutes a prohibited use of employer resources.
On December 29, 2016, the Election Appeals Master received a written submission from the Election Supervisor, citing a 1996 decision of Election Officer Quindel, Mee, P-951 (October 2, 1996), in which Election Officer Quindel held that a pre-existing right to campaign on employer premises can arise from an employer’s simple decision to grant that access. Election Officer Quindel stated:
The Election Officer has repeatedly stated that “[i]f an employer chooses to allow campaigning on their premises, it may do so as long as equal access is provided to all candidates pursuant to Article VIII, Section 11(d)[2]” of the Rules. Burrows, P-118-LU70CLA (September 13, 1995), aff’d, 95 - Elec. App. - 16 (KC) (September 30, 1995); Rud, P-766-LU320-NCE (July 30, 1996). That section of the Rules provides:
[N]o restrictions shall be placed upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature * * * 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.
The Election Supervisor noted that Election Appeals Master Conboy relied on Mee in Cobb, 2001 EAM 100 (October 19, 2001), holding that an employer’s authorization of access to its facility for campaigning did not violate the Rules absent a showing of discrimination.
A telephonic hearing was held on January 3, 2017, which was attended by: Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor; Peter Marks (OES), Michael Miller (OES) and Deborah Schaaf (OES); David Suetholz, Esq., attorney for appellant, and David J. Hoffa, Esq., attorney for the Hoffa Campaign.
At the hearing, appellant acknowledged that neither Mr. Zuckerman nor the Teamsters United slate had requested similar access to the employer’s premises, and was unable to offer any explanation for the failure to do so.
Decision of the Election Appeals Master
In order to establish a violation of Section 12(d) of the Rules, a protester must show that request for access on reasonable notice was made of the employer and denied, while access was granted by the employer to another candidate or campaigner. It is undisputed that neither Mr. Zuckerman nor the Teamsters United slate requested similar access to the employer’s premises. The Election Supervisor therefore correctly concluded that the access the employer permitted to Mr. Murphy was not granted on a discriminatory basis.
Conclusion
For the foregoing reasons, the appeal of ESD 343 is denied and ESD 343 is AFFIRMED.
SO ORDERED.
/s/____________________________________
KATHLEEN A. ROBERTS
ELECTION APPEALS MASTER
DATED: January 13, 2017