IN RE: RICHARD BERG, Protestor.
Protest Decision 2006 ESD 286
Issued: May 30, 2006
OES Case No. P 06 235-040706-MW
(See also Election Appeals Master decision 06 EAM 44)
Richard Berg, a member of Local Union 743 and delegate candidate on the 743 New Leadership 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 alleged that Central States Pension Fund (CSPF), an employer of approximately 400 members of Local Union 743, denied a member of Berg's slate the opportunity to campaign while allowing a member of the opposing slate to campaign at the same time and place.
Election Supervisor representatives Joe Childers and Taea Calcut investigated this protest.
Findings of Fact
Ballots were mailed in Local Union 743's delegate and alternate delegate election on April 5, 2006. Protestor Berg alleged that on April 6, Richard Delgado contacted human resources personnel at CSPF to request permission to distribute flyers in the lobby of CSPF between the hours of 6:00 and 7:30 a.m. on April 7. Delgado was a delegate candidate on Berg's slate and a CSPF employee. Delgado's request was denied. However, the protest alleged that Susan Hansen-Motley, a candidate on the competing slate, was permitted to campaign in the same location and during the same hours denied to Delgado.
Investigation showed that Delgado spoke with Richard Jackson from CSPF human resources and requested to campaign in the lobby on the morning of April 7, 2006 as members came to work. Jackson initially approved the request but called back a few minutes later and told Delgado that William Schaefer, COO of CSPF, would have to approve the literature before it could be distributed. Delgado protested that he did not have to show the literature to Schaefer. Delgado then called Schaefer directly and, according to Delgado, Schaefer repeated that he had to approve the literature. Schaefer denied that he told Delgado he had to approve the literature's content before it could be distributed.
Delgado told our investigator that he usually leaves work around 5:30 p.m. but that on April 6, he did not leave until about 6:30 p.m. Before 5:30 p.m., Schaefer called Delgado back and told him that Susan Hansen-Motley, a member of the opposing slate, had also requested to campaign on the morning of April 7 and had been denied. Delgado stated that before he left work he spoke with two members of his slate and told them they would not be able to campaign the next morning, and not to come in early as they had planned. He also did not go to the printer to pick up the campaign literature that evening.
On Friday morning, April 7, Delgado came to work about 7:10 a.m. A security guard handed him a note from Schaefer that stated Delgado could campaign as requested between 6:00 and 7:30 a.m. that morning. However, at that time, only 20 minutes remained in the allotted campaign period and Delgado's campaign literature was still at the printer. Larry Davis, another candidate on the slate, told Delgado that several people had seen Hansen-Motley campaigning as early as 5:30 a.m. that morning. This news surprised Delgado because Schaefer had told him the night before that Hansen-Motley would not be permitted to do so. Since the managers involved were not present in the building at that hour, Delgado pleaded his case with the security guard by showing a copy of the Rules. The security guard was unmoved.
Later that morning, Pete Landon from TDU called Delgado, learned of the problem, and a short time later, Berg called and instructed Delgado to call Scott Robbins, CSPF's HR director. Delgado did so, reached Robbins in his office, and went to see him. Delgado complained that Hansen-Motley had been campaigning in the building. According to Delgado, Robbins acted startled at this news and denied any knowledge of her campaigning. Delgado then showed Robbins the Rules and was granted the right to campaign that afternoon from 1:30 to 3:30 p.m. in the parking structure where CSPF employees park their vehicles. He and Davis campaigned during the approved hours and handed out approximately 100 flyers. Delgado repeated Berg's complaint that many members would have already voted their ballots before leaving work on April 7. However, neither he nor Berg produced any evidence to substantiate this fact.
William J. Nellis, Secretary to the Board of CSPF, filed a written response to the protest, to which he attached signed statements from Thomas C. Nyhan, executive director and general counsel, William Schaefer, and Scott Robbins. Nellis's statement incorporated the relevant statements from Schaefer and Robbins and summarized them. In that statement, Nellis asserted the following:
- Delgado's failure to campaign in the lobby on the morning of April 7 was his own fault because he waited until 4:00 p.m. on April 6 to notify CSPF of his desire to do so, and because he failed to arrive at 6:00 a.m. on April 7, 2006 as he stated he would.
- Delgado's request was initially denied because 40 members of other local unions were present on April 6 and 7 to attend a seminar. However, that denial decision was reversed less than 2 hours later and Schaefer attempted to contact Delgado approximately 10 minutes after their last conversation; Schaefer was unable to reach Delgado, who had "apparently left and could not be reached," according to Schaefer's statement.
- As a result, Schaefer drafted a short note notifying Delgado that he could campaign in the lobby between 6:00 a.m. and 7:30 a.m. on April 7; Schaefer left the note with the security guard on April 6.
- Delgado had told Schaefer that he would arrive in the lobby at 6:00 a.m., but he did not clock in to work until 7:26 a.m. on April 7, 2006.
- An agreement was reached between Berg and CSPF on the morning of April 7, 2006 to permit candidates and supporters of Berg's slate to distribute campaign materials on the afternoon of April 7.
- Delgado distributed materials to CSPF employees between 1:30 and 3:00 p.m. that day in various locations of the parking garage pursuant to the agreement with Berg, and therefore any lost opportunity to campaign on April 7, 2006 was restored by CSPF.
Thomas Nyhan's statement indicated that he saw Delgado in the building's elevator at approximately 1:00 p.m. on April 7, inquired where he was going and was told that Delgado was going to a copy store nearby to copy campaign literature to hand out in the parking garage at CSPF.
Schaefer, in his statement, indicated that the lobby of the CSPF building is also used by hundreds of people employed by a company that leases space from CSPF on 3 floors of the building, and these people are entitled to unimpeded ingress and egress through the lobby. Schaefer admitted that shortly after 4:00 p.m. on April 6, Delgado telephoned him and requested permission to campaign in the lobby the next morning. Schaefer admitted that he initially told Delgado he would not be allowed to campaign until Monday, April 10. At approximately 5:30 p.m., Schaefer said he spoke with Delgado and was told that Delgado would be filing a protest and would arrive at 6:00 a.m. the next day in the lobby of the building. Schaefer stated that Delgado told him he had been told that he would have to arrive at that time in order to state a claim on which to base his protest.
Schaefer then spoke with Nyhan, and they decided to reverse their decision. At approximately 5:40 p.m., according to Schaefer, he attempted to telephone Delgado but could not reach him. Schaefer then typed a note notifying Delgado that CSPF had reconsidered its decision and he would be permitted to campaign in the lobby between 6:00 and 7:30 a.m. on April 7. The note was delivered to security with instructions to give it to Delgado when he arrived the next morning.
HR director Robbins stated that on April 7 around 8:30 a.m., he received a telephone call from Berg who reported that Delgado had not been allowed to pass out campaign literature in the first floor lobby that morning. Robbins stated that Berg then told him that he, Berg, wanted to distribute literature in the lobby that day, and Robbins replied that the request would be denied, partly because of the large number of guests attending a seminar. Berg threatened to file a protest, but said he would call Robbins back. Around 11:00 a.m., Berg called Robbins back and Robbins suggested that Berg come in Monday, April 10, 2006 to pass out literature. Berg replied that Monday would be too late.
Robbins reported that Berg then requested permission to pass out literature around noon on April 7 in the parking garage; Robbins replied that he would check on this and call Berg back. Robbins then called Schaefer and was told that Berg, Delgado and other Local 743 members could pass out literature between 1:30 p.m. and 3:00 p.m. in the parking garage, at the three main access points. Robbins stated that on Fridays a large number of CSPF employees who are local union members end their day between 1:30 and 3:00 p.m. Robbins then telephoned Berg around 11:30 a.m. and granted permission to pass out literature between 1:30 p.m. and 3:00 p.m. Robbins stated that Berg agreed and said "we'll do it." Berg asked Robbins to call Delgado and inform him of this arrangement, and Robbins did so. Delgado told Robbins that Larry Davis and Gina Alvarez would accompany him in passing out literature.
Berg told our investigator that he spoke with Robbins on the morning of April 7, and Robbins informed him where his slate's members would be allowed to leaflet that afternoon. He stated that he left a message on Robbins' voice mail, saying "we'll do it."
Delgado conceded that he did not request permission to leaflet on April 7 until approximately 4:00 p.m. on April 6. He also stated that the campaign literature was still at the printer on the evening of April 6. He admitted to our investigator that he told Schaefer that he may have to arrive at the lobby at 6:00 a.m. the next morning to establish a protest, and, if he did so, Schaefer should not construe it as an attempt to undermine Schaefer's authority. Delgado stated that he had earlier told Richard Jackson that he would arrive at 6:00 a.m. on April 7. Delgado admitted that he clocked out at CSPF on April 6, 2006 at 5:30 p.m., but stated that he "hung around" a little longer to make some personal calls. He said he could have missed Schaefer's 5:40 p.m. call when he was briefly away from his desk.
Robbins told our investigator that Susan Hansen-Motley left a voice message for him on April 6, requesting permission to leaflet in the lobby on the morning of April 7. However, he did not call her back and did not speak with her prior to the morning of April 7. He stated that no one gave her permission to leaflet as far as he knew.
Nyhan told our investigator that CSPF requires any member wishing to campaign on premises in an area other than the parking garage must give 24 hours' advance notice. He stated that no one gave Hansen-Motley permission to campaign in the building on April 7. He said that, when he learned she had campaigned in the building, he called all the stewards together and reminded them of the advance notice policy. He said Delgado was present for this meeting.
Sue Tebbens, an employee of CSPF, confirmed to our investigator that she observed Susan Hansen-Motley leafleting in the lobby of the CSPF building on Friday, April 7, 2006, between 5:40 a.m. and 5:55 a.m. She received a flyer from Hansen-Motley, which she later gave to Larry Davis when he arrived at work around 7:30 a.m.
Analysis
Article VII, Section 12(d) of the Rules states the following, in relevant part:
[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 non-discriminatory basis.
Section 12(f) of the same Article states:
An employer's discrimination between candidates in permitting access to its property shall constitute an improper contribution to the candidate(s) who benefit from such discrimination.
The protestor alleges that CSPF violated this rule when it denied Delgado the right to campaign on the morning of April 7 while permitting Hansen-Motley to campaign during the same time at the same place requested by Delgado.
We first turn to CSPF's contention that it was Delgado's own fault that he did not campaign on the morning of April 7 because he did not give adequate advance notice of the right to do so. Access to employee parking lots for the purpose of leafleting is a right guaranteed by Article VII, Section 12(e) of the Rules. However, access to other parts of the employee facilities for the purpose of campaigning is not a right guaranteed by the Rules, unless it is established as a preexisting right ("Nothing in this Subsection shall entitle any candidate or other Union member to access to any other part of the premises owned, leased, operated or used by an employer . . . other than as set forth herein." Rules, Article VII, Section 12(e)).
If a preexisting right existed to campaign in the lobby of the CSPF building, it was only with 24 hours' advance notice. Under the circumstances presented here, the advance notice requirement is not unreasonable because other parts of the building are occupied by tenants not associated with CSPF and not employing members of Local Union 743. Delgado failed to give the required advance notice to campaign in the lobby. Employers are not permitted to require advance notice before members may campaign in employee parking lots; however, they may require such notice before campaigning is allowed on other parts of the employer's premises. Buban, 2001 EAD 446 (September 10, 2001), citing Terrazas, P825 (July 11, 1996), aff'd, 96 EAM 217 (July 22, 1996). In this case, Delgado and other members of Berg's slate had an absolute right to campaign in the parking garage at CSPF; however, they failed to avail themselves of such right.
Finally, the protestor has provided no evidence that Hansen-Motley was given permission to campaign in the lobby on the morning of April 7, 2006. Our investigation revealed that while she requested permission it was never given. She campaigned on a portion of the employer's premises that was not protected by the Rules without permission. We find no violation of the Rules, Article VII, Section 12(d) by CSPF.
We find that Hansen-Motley's lobby campaign activity did not constitute impermissible discrimination on the part of the employer. Some 12 hours before it occurred, the employer had reversed its previous decision and granted Delgado the opportunity to campaign in the lobby. It took reasonable steps to notify Delgado, telephoning him at work and then leaving the note with security. The note, although not received by Delgado until 7:10 a.m. on April 7, constituted a reasonable attempt by the employer to notify Delgado that he would be permitted to campaign commencing at 6:00 a.m. because Delgado had told Schaefer he would be present at that time prepared to campaign, in order to establish a protest that he had been denied. While Delgado's failure to appear when he said meant that he received Schaefer's note later than Schaefer expected, the note and attempted telephone call on April 6 reflected reasonable efforts to advise Delgado that he would be permitted to campaign. Schaefer had no expectation that Delgado would not appear at 6:00 a.m., as Delgado had stated.
Accordingly, 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 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 Office of the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, Suite 1400, N.W., 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
2006 ESD 286
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
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
Richard Berg
1336 West Argyle
Chicago, IL 60640
Richard Lopez, Secretary-Treasurer
IBT Local Union 743
4620 South Tripp
Chicago, IL 60632
Robert Walston, President
IBT Local Union 743
4620 South Tripp
Chicago, IL 60632
Thomas Nyhan, Executive Director
Central States Pension Fund
9377 West Higgins Road
Rosemont, IL 60018
William Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Taea Calcut
1725 K Street, NW Suite 1400
Washington, DC 20005
tcalcut@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com