IN RE: JIMMY MARTINEZ, Protestor.
Protest Decision 2011 ESD 133
Issued: February 22, 2011
OES Case No. P-112-020311-NE
Jimmy Martinez, member of Local Union 449 and candidate for alternate delegate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that he was impermissibly prevented from posting campaign literature on a union bulletin board at UPS.
Election Supervisor representative Deborah Schaaf investigated this protest.
Findings of Fact
The protestor stated that on February 1, 2011, protestor Martinez asked union steward and local union trustee Frank Damon for access to the locked, glass-enclosed union bulletin board at UPS Buffalo so he could post campaign literature for Generation Next, his slate in the delegates and alternate delegates election. Damon refused.
Investigation showed that the bulletin board at issue is used strictly for official union notices; it has not been used for campaign material, for material not related to union functions, or for any general purpose. Stewards are provided keys to the boards and are instructed to post only official union notices and notices required by the Rules.
Martinez questioned this evidence, stating that he recalled seeing postings of the results of local union elections on the board. Such a notice, if posted as Martinez recalled, is consistent with the stated policy of permitting only official union notices and not campaign literature. Martinez also stated that a personal employee notice had "definitely" been posted on a board at a different worksite. He did not produce a photo of the board in response to our investigator's request.
Analysis
Article VII, Section 12(d) states that "[n]o restrictions shall be placed upon candidates' or members' pre-existing rights to use … Union bulletin boards for campaign publicity. …. Such facilities … shall be made available to all candidates and members on a non-discriminatory basis."
Our inquiry focuses on whether a pre-existing right exists. Absent an express policy permitting use of bulletin boards for campaign purposes, past practice is the determining factor. Cooper, 2005 ESD 8 (September 2, 2005). Where there is no past practice, there is no right to post campaign literature on a bulletin board. Bolen, 2006 ESD 73 (February 7, 2006); Deaver, 2006 ESD 74 (February 7, 2006).
The facts here demonstrate that the locked, glass-enclosed bulletin boards at UPS Buffalo are reserved for official union postings and no pre-existing right exists to post campaign material there. Accordingly, we DENY this 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, NY 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, 1801 K Street, N.W., Suite 421 L, 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
2011 ESD 133
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Jimmy Martinez
168 Spicer Creek Run
Grand Island, NY 14072
judo72@yahoo.com
Frank Damon
Teamsters Local Union 449
2175 William Street
Buffalo, NY 14206
teamsters449@adelphia.net
Kenneth Nelligan, Secretary-Treasurer
Teamsters Local Union 449
2175 William Street
Buffalo, NY 14206
teamsters449@adelphia.net
David F. Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com
Maria Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com