IN RE: DAVID THORNSBERRY, Protestor.
Protest Decision 2005 ESD 9
Issued: September 8, 2005
OES Case No. P-05-008-082905-MW
David Thornsberry, a member of Local Union 89 and delegate candidate on the United Rank & File (UR&F) slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). He alleges that Mike Fackler, vice president of Local 89, instructed a steward at Irving Metals, Inc. to post a Hoffa accreditation petition on a worksite bulletin board in violation of the Rules. He further alleges that Local 89 business agents routinely solicit signatures on such accreditation petitions while on union-paid time.
Election Supervisor representative Joe F. Childers investigated this protest.
Findings of Fact
Bulletin board posting of accreditation petition. The protestor alleged that a Hoffa accreditation petition was posted on a union bulletin board at IMI. Investigation showed that the petition was posted on the bulletin board in the drivers' lounge at IMI by Bill Emerson, Local 89 steward at the facility. Emerson told Phil Pennington, an IMI employee and candidate for delegate on the UR&F slate, that he posted the petition on the instructions of Mike Fackler, vice-president of Local 89. Emerson's statement to Pennington was corroborated by Gary Shireman, an IMI employee not aligned with any slate in the delegate election.
Emerson told our investigator that Fackler gave him the petition when he was at the union hall for steward orientation. Emerson stated that he misunderstood Fackler's instructions concerning the form, believing that Fackler had directed him to post it on the bulletin board at IMI. After the protest was filed, Fackler telephoned Emerson and instructed him to remove the form from the bulletin board. The form was posted for about two weeks and contained only one signature, Emerson's, when it was taken down.
Fackler confirmed to our investigator that he gave the accreditation petition to Emerson and asked him to try to get signatures on it but cautioned him not to do so on work time. Fackler denied telling Emerson to post the form on the IMI bulletin board. Emerson stated that he posted the petition on the bulletin board because he does not see all IMI drivers every day and believed it would be easier to post the form rather than circulate it personally.
The bulletin board at issue is located in the drivers' lounge at IMI, where employees assemble off-duty to await assignment for the day. The bulletin board is not reserved for union or employer notices; employees use it to post "for sale" and similar notices as well as jokes and cartoons. A second bulletin board, upstairs from the lounge and near the time clock, is used for union notices and employer policies.
Solicitation of accreditation petition signatures on union-paid time. The protestor alleged that Local 89 business agents "are actively trying to get accreditation signatures and Steward endorsement signatures of the Zuckerman slate while Union employees are on the clock." However, the protestor withdrew the allegation because he was unable to produce any evidence to support it at this time.
Analysis
Article VII, Section 11(d) of the Rules states:
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 non-discriminatory basis.
The right to post campaign materials on worksite bulletin boards is determined by past practice. Rodriguez, P348 (February 1, 1996); Blake, P953 (October 30, 1991); Meyer, P130 (October 12, 1995); and Lawrence, 2001 EAD 190 (February 23, 2001). Although there is no past practice of posting campaign materials on the bulletin board in the IMI drivers' lounge, a past practice exists with respect to general use of the board. In Cassella, P794 (July 15, 1996), the Election Officer held that members have a right to post campaign materials on general-purpose bulletin boards. Emerson did not violate the Rules by posting the accreditation petition on the drivers' lounge bulletin board.
Accordingly, we DENY this protest.
However, we caution that accreditation signatures are invalid when they are gathered by posting on bulletin boards or any other means where the circulator of the petition is not present when the petition is signed. Article X, Section 2(a)(3) requires the circulator of the petition to certify the validity and accuracy of its contents, a certification that cannot be done if the circulator does not witness each signature on the petition. The certifying language declares that the circulator "certif[ies] that the signatures on this sheet were signed in my presence and are genuine." See Thornsberry, 2000 EAD 48 (November 17, 2000) ("The purpose of the rule requiring certification of petition signatures is to serve as a check against fraud; that purpose is circumvented entirely if the individual certifying the signatures has not witnessed them in the first instance.") For this reason, although Emerson did not violate the Rules by posting the petition on the bulletin board, the petition would have been rendered invalid had it contained any signature other than Emerson's.
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 Supervisor 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 the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, NW, Washington, D.C. 20006, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2005ESD 9
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
pszymanski@teamster.org
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
braymond@fwslaw.com
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fzuckerman@teamsters89.com
Mike Fackler, Vice-President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
mfackler@teamsters89.com
Robert Colone
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
rmcolone@teamsters89.com
Ann Curry Thompson
Kelman Loria, PLLC
660 Woodward Avenue, Suite 2300
Detroit, MI 48226
acthom@kelmanloria.com
United Rank & File Slate
P.O. Box 991175
Louisville, KY 40269-1175
Rankandfile2005@msn.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
David Thornsberry
785 Kingswood Drive
Taylorsville, KY 40071
davidthorny@msn.com