OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: DAVID FUNK, ) Protest Decision 2016 ESD 113
) Issued: February 16, 2016
Protestor. ) OES Case No. P-161-020916-ME
____________________________________)
David Funk, member and candidate for alternate delegate in Local Union 40, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that campaign literature was posted on a worksite bulletin board reserved exclusively for official union postings, in violation of the Rules.
Election Supervisor representative John Pegula investigated this protest.
Findings of Fact and Analysis
The protest alleged that campaign literature of Teamsters United 40, a slate of candidates competing in Local Union 40’s delegates and alternate delegates election, was posted on a bulletin board located at the UPS hub in Mansfield, Ohio.
Protestor Funk is recording secretary of Local Union 40 and employed full-time by UPS. In addition to his recording secretary position, which he has held 14 years, Funk has been a steward at the UPS Mansfield location for more than 16 years. Funk and Michael Markham are candidates for alternate delegate and delegate, respectively, on the Members First slate. Forming the Teamsters United 40 slate are Ronald Caudill and Timothy Markel, both of whom serve as stewards at the UPS Mansfield location with Funk.
The official union bulletin board at the Mansfield worksite is glass-enclosed but unlocked. Funk reported to our investigator that it is the “Article 19” bulletin board at the facility, a reference to the provision of the collective bargaining agreement between UPS and the IBT that requires UPS to supply a “covered bulletin board” that is “to be confined to official business of the Union.” Funk stated that the typical postings on the union board include meeting dates and times, pension reform act information, and information for obtaining health and welfare coverage. In his years as a union official, Funk stated he has never seen campaign material posted on the union board, until February 8, 2016, when he observed a campaign flyer for Teamsters United 40 there.
Funk filed this protest, contending that the posting of campaign material on the union board at UPS Mansfield violated the Rules and was contrary to information disseminated at the candidates meeting held immediately after Local Union 40’s nominations meeting. Funk observed that the campaign posting was no longer on the union board when he arrived for work on February 11 at 5 p.m. All told, according to Funk, the campaign material was on the board for three days or less.
Caudill, a UPS steward and candidate for delegate on Teamsters United 40, admitted posting the campaign material on the union board at UPS Mansfield. He recalled posting it on February 9 but allowed that he could have posted it a day earlier. He observed that it was gone from the board at 3 a.m. on Thursday, February 11, about 1½ to 2½ days after he posted it. He believed the material had been stolen until he received Funk’s protest.
Caudill said he posted the campaign material on the union board because he believed at the time of posting he had the right to do so. He said that he learned at the candidates meeting that “campaign literature may only be distributed or made available by a local union in a non-discriminatory manner through mailing, emailing, or the use of a literature table or bulletin board open to all candidates.” He stated that because the Teamsters United 40 posting did not refer to or attack the opposing slate, it was “non-discriminatory” and therefore permissible.
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 to post on the official union board at UPS Mansfield. 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 glass-enclosed bulletin board at UPS Mansfield is reserved for official union postings and no pre-existing right exists to post campaign material there. We reach this conclusion from the express contract language limiting the board’s use to official union notices, a conclusion that is reinforced by uniform practice. Given that no pre-existing right exists to post anything other than official union postings on this board, Caudill’s posting of Teamsters United 40 campaign material created the impression to viewers of the board that the union supports or endorses that slate. To the contrary, the union is and must remain neutral in the election and candidates cannot be permitted to convey that the union is anything other than neutral.
Accordingly, we GRANT this protest.
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 Caudill and Teamsters United 40 to cease and desist from posting campaign material on union bulletin boards reserved exclusively for official union postings.
In addition, we order that Local Union 40 post on the union bulletin board at UPS Mansfield the notice attached to this decision and maintain the posting there through April 4, 2016, the date ballots are to be counted in the delegates and alternate delegates election. Within three days of posting the notice, the local union shall submit a declaration of compliance to OES.
A decision of the Election Supervisor takes immediate effect unless stayed. Lopez, 96 EAM 73 (February 13, 1996).
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:
Kathleen A. Roberts
Election Appeals Master
JAMS
620 Eighth Avenue, 34th floor
New York, NY 10018
kroberts@jamsadr.com
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, 1050 17th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kathleen A. Roberts
2016 ESD 113
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
braymond@teamster.org
David J. Hoffa
1701 K Street NW, Ste 350
Washington DC 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
Teamsters United
315 Flatbush Avenue, #501
Brooklyn, NY 11217
info@teamstersunited.org
Louie Nikolaidis
350 West 31st Street, Suite 40
New York, NY 10001
lnikolaidis@lcnlaw.com
Julian Gonzalez
350 West 31st Street, Suite 40
New York, NY 10001
jgonzalez@lcnlaw.com
David O’Brien Suetholz
515 Park Avenue
Louisville, KY 45202
dave@unionsidelawyers.com
Fred Zuckerman
P.O. Box 9493
Louisville, KY 40209
fredzuckerman@aol.com
David Funk
81 Chilton Ave
Mansfield, OH 44907
Dfunk52432@aol.com
Ronald Caudill
22 Vernon Rd
Shelby, OH 44875
Racaudill1@neo.rr.com
Teamsters Local Union 40
P.O. Box 3652
Mansfield, OH 44907
Teamsters40@teamsters40.org
Dan Walsh
950 Duxbury Ct
Cincinnati, OH 45255
Djw4947@gmail.com
John Pegula
1434 Greendale Dr
Pittsburgh, PA 15239
jpegula@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Suite 210
Ann Arbor, MI 48104
EllisonEsq@aol.com
Office of the Election Supervisor
for the International Brotherhood of Teamsters
1050 17th Street, N.W., Suite 375
Washington, D.C. 20036
202-429-8683
844-428-8683 Toll Free
202-774-5526 Facsimile
ElectionSupervisor@ibtvote.org
www.ibtvote.org
February 16, 2016
Richard W. Mark
Election Supervisor
NOTICE TO MEMBERS OF TEAMSTERS LOCAL UNION 40
EMPLOYED AT UPS MANSFIELD
The Election Supervisor has found that Ronald Caudill violated the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”) by posting campaign material of Teamsters United 40 on a bulletin board reserved exclusively for official notices of Local Union 40. Placing campaign material on the official union board gives the incorrect impression that Local Union 40 is not neutral in the delegates and alternate delegates election.
The Election Supervisor has ordered Caudill and Teamsters United 40 to cease and desist from posting campaign materials on the official union board, and has further ordered that this notice remain posted on the official union board at UPS Mansfield until April 4, 2016.
The Election Supervisor has issued this decision in Funk, 2016 ESD 113 (February 16, 2016). You may read this decision at https://www.ibtvote.org/Protest-Decisions/esd2015/2016esd113.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, 1050 17th Street, N.W., Suite 375, Washington, D.C. 20036, telephone: 844-428-8683, fax: 202-774-5526, email: electionsupervisor@ibtvote.org.
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters. It must remain posted on this bulletin board through
April 4, 2016 and must not be defaced or covered up.