IN RE: MARK KLEINERMAN, Protestor.
Protest Decision 2006 ESD 227
Issued: May 8, 2006
OES Case No. P-06-231-032206-AT
Mark Kleinerman, a member of Local Union 97 and delegate candidate on the Team with Integrity 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"). The protest asserted that campaign material supporting the Gerow/Perez slate was posted behind the glass on two locked union bulletin boards at the University of Medicine and Dentistry of New Jersey (UMDNJ) without the same opportunity being granted to Kleinerman's slate. Further, the protest asserted that additional campaign material was posted on an open employer bulletin board and taped to the wall in violation of the UMDNJ's no solicitation policy.
Election Supervisor representative J. Griffin Morgan investigated this protest.
Findings of Fact
The protest asserted that the locked, glass-covered union bulletin boards where campaign literature for the Gerow/Perez slate was posted was designated for official use of Local Union 97. As such, the protest claimed that posting of campaign literature for one slate without giving notice to all candidates that the boards were available for use by all candidates constituted an impermissible union contribution to the Gerow/Perez slate.
The protest asserted that the campaign postings on the employer bulletin board violated the Rules because the board was used exclusively by the employer to inform employees about work schedules, on-call schedules, and training. The protest claimed that employees were not permitted to post material on the employer board. Accordingly, the protest asserted that the campaign postings of the Gerow/Peres slate on the employer board constituted an improper use of an employer asset, in violation of the Rules.
On March 24, 2006, our investigator contacted John Gerow, local union president and lead candidate on the Gerow/Perez slate, concerning the protest. Gerow confirmed that the local union's practice is to use the locked union bulletin boards at UMDNJ only for official union postings. Following contact with our investigator, Gerow instructed business agent Amy Lewis, the local union's representative at UMDNJ, to review each of the union's locked bulletin boards and remove any campaign material posted there. That same day, Lewis did so and filed an affidavit with our office stating that campaign material for the Gerow/Perez slate was removed from three locked union bulletin boards. The affidavit further stated that the campaign literature was placed inside the bulletin board by a shop steward and had been posted for 10 days before Lewis removed it. The protestor apparently did not see or notice the posted literature for most of the time that it had been displayed.
On March 28, Kleinerman confirmed that the campaign material had been removed from the locked bulletin boards, but stated that campaign material remained posted on the employer bulletin board and taped to the wall. On March 30, our investigator contacted Gerow again with this allegation. Again, Gerow contacted business agent Lewis and, following Gerow's instructions, Lewis immediately removed the Gerow/Perez campaign material from employer bulletin boards and walls at the worksite. Following this action, Lewis reported that the employer bulletin board contained campaign material for both the Gerow/Perez and Kleinerman slates; however, she removed only the Gerow/Perez material. Kleinerman contradicted Lewis on this point, denying that he or any of his supporters had placed literature on the employer bulletin board and further stating that no such material was on that board as of the evening of March 26.
Although Gerow told our investigator that the locked bulletin boards were reserved for official union postings, his written response to the protest stated that Kleinerman could have posted his own material on the locked board merely by asking to do so. Kleinerman denied that he knew he had access to locked bulletin boards for campaign purposes and disputed that such access would have been granted if requested. The union did not provide advance written notice to all candidates that locked union bulletin boards were available for posting of campaign literature.
The protest stated that, to remedy the improper campaigning done by the Gerow/Perez slate at UMDNJ, the Kleinerman slate conducted a targeted mailing to UMDNJ members. The protest requested that the Gerow/Perez slate reimburse the costs of that mailing.
Local Union 97 mailed out ballots for its delegate election on March 2, 2006, and tallied the ballots on April 3. On 946 valid ballots counted, all members of the Gerow/Perez slate were elected. The margin between the winning delegate candidate with the fewest votes and the losing delegate candidate with the most votes was 43; the same margin for alternate delegate candidates was 54.
Analysis
The Rules declare that "[n]o restrictions shall be placed upon candidates' or members' preexisting rights to use employer or Union bulletin boards for campaign publicity." Article VII, Section 12(d). As this provision suggests, the right to post on bulletin boards is determined by past practice. Rodriguez, P348 (February 1, 1996); Meyer, P130 (October 12, 1995); Blake, P953 (October 30, 1991). Where a union bulletin board is used exclusively for official union postings of the union, a candidate has no right under the Rules to post campaign material.
If material supporting a candidate is nonetheless posted on a union bulletin board for which no pre-existing right to post exists, the candidate has violated the Rules by using union resources for a campaign purpose.
The local union may grant candidate access to a union bulletin board for campaigning only by giving notice of the availability of the bulletin board for that purpose to all candidates on a non-discriminatory basis. However, such notice must be given in writing and must precede any use of the bulletin board for campaigning.
Here, history shows that the locked, glass-enclosed bulletin boards have been used exclusively for official postings of the local union. Accordingly, no preexisting right exists to use this board for campaign publicity. Nor did the local union give advance written notice to all candidates of the availability of the union bulletin boards for campaigning. For these reasons, we find that the Gerow/Perez slate violated the Rules by posting campaign literature on these boards.
Accordingly, we GRANT this aspect of the protest.
With respect to the employer's walls and bulletin board, no evidence was presented that access to these was provided in a discriminatory manner. To the contrary, we conclude that both campaigns posted campaign material on the employer's bulletin board and that the material was not removed by the employer. This aspect of the protest is, accordingly, DENIED.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
We order that the local union post the notice attached to this decision on each of the three glass-enclosed union bulletin boards at UMDNJ where Gerow/Perez campaign material was posted. The notice shall be posted within 3 working days of receipt of this decision and shall remain posted for a period of 30 consecutive days. We direct John Gerow to file an affidavit of compliance with our office within 2 working days following the date the notices are posted.
We further order the Gerow/Perez slate, and each member of that slate, to cease and desist from violating the Rules in the manner found in this decision.
We order no further relief. In particular, we do not order the Gerow/Perez slate to reimburse the Kleinerman slate for the cost of the mailing it sent to UMDNJ members. We find insufficient evidence that the mailing was undertaken solely or primarily to counter the alleged taint introduced into the election process by the improper postings on the union bulletin boards.
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
885 Third Avenue, Suite 1000
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, N.W., Suite 1400, Washington, D.C. 20007-5135, 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
2006 ESD 227
[OES letterhead]
NOTICE TO ALL MEMBERS OF TEAMSTERS LOCAL UNION 97 EMPLOYED BY UMDNJ
FROM THE IBT ELECTION SUPERVISOR
Under the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"), members and candidates have no right to post campaign material on official Union bulletin boards if those boards have not previously been used for any purpose other than official postings of the Union and if the Union has not given advance written notice to all candidates that the boards may be used for campaigning.
The Election Supervisor has found that the Gerow/Perez slate improperly posted campaign flyers on official Union bulletin boards at UMDNJ during the Local Union delegate and alternate delegate election because no pre-existing right existed to use the bulletin boards for that purpose and because the Local Union had not given advance written notice to all candidates of the right to use the boards for campaigning.
The Election Supervisor has ordered the Gerow/Perez slate, and each member of that slate, to cease and desist from violating the Rules in this manner. The Election Supervisor has also ordered Local Union 97 to post this notice on the official union bulletin boards at UMDNJ where the campaign literature was previously posted improperly.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with Richard W. Mark, Election Supervisor, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, telephone: 888-IBT-2006, fax: 202-454-1501, email: electionsupervisor@ibtvote.org.
________________________________________
Richard W. Mark
IBT Election Supervisor
Dated:
This is an official notice by IBT Election Supervisor Richard W. Mark and must remain posted for thirty (30) consecutive days.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
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
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Mark Kleinerman
31-19 Morlot Avenue
Fair Lawn, NJ 07410-4025
John J. Gerow
210 5th Avenue
Belmar, NJ 07719
teamsterslocal.ninetyseven@verizon.net
J. Griffin "Griff" Morgan
Elliot, Pishko, Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com