Protest Decisions

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: FRED ZUCKERMAN,                  )           Protest Decision 2016 ESD 343

                                                                        )           Issued: December 15, 2016

            Protestor.                                           )           OES Case No. P-385-101116-ME     

____________________________________)                      

Fred Zuckerman, candidate for IBT General President on the Teamsters United slate, 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 John Murphy, a candidate for IBT vice president at large on the Hoffa-Hall 2016 slate, campaigned inside an employer’s facility while on time paid for by the union, in violation of the Rules.

            Election Supervisor representative Peter Marks investigated this protest.

Findings of Fact and Analysis

The protest alleged that Murphy campaigned at Excel Industries in Toledo, OH on October 6, 2016.  The protestor was unable to supply a witness to the conduct.  Our investigation therefore obtained information from the available, identifiable sources of first-hand information, comprising Murphy and his companions, and the employer.

Murphy told our representative that he campaigned at Excel and with two officers of Toledo-based Local Union 20, which has jurisdiction over the employer.  Murphy stated that he took a vacation day to campaign in Toledo.  There is no contrary evidence.

While Murphy and the others were present in the parking lot, a member of management came out, was introduced to Murphy by the Local Union 20 officials, and the three were invited inside the facility by management.  There is no contrary evidence.

Once inside, Murphy greeted and shook hands with several employees.  Murphy, the Local Union 20 representatives who were present, and management all deny that campaign leaflets were distributed.  There is no contrary evidence.

Management, through counsel, reported to our representative that no request was received from the protestor or the Teamsters United slate for similar access.  There is no contrary evidence.

Article VII, Section 12(d) protects pre-existing rights[1] of candidates and members to “solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events, or engage in similar activities on employer … premises.  Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis.”  In contrast to Article VII, Section 12(c), which requires a union to give advance, written notice of the availability of union facilities for a campaign purpose before they may be used in that capacity, Article VII, Section 12(d) does not require an employer to give similar advance, written notice.  Rather, an employer granting such access is prohibited only from doing so on a discriminatory basis.  To establish a violation of Article VII, Section 12(d), a protestor must prove that request for access on reasonable notice was made of the employer and denied, while access was granted by the employer to another candidate or campaigner.  Cobb, 2001 EAM 100 (October 19, 2001), recon. den. 2001 EAM 100(a) (October 26, 2001) (“to state a viable protest, the candidate or campaigner [protesting improper campaign access by an opponent to the employer’s workplace] must affirmatively establish that he specifically requested, on reasonable notice, access and was denied”); Pope, 2011 ESD 352 (October 31, 2011) (Rules violated where campaigner requested access to employer facility to campaign, was denied, and then opposing candidate was permitted such access); Hoffa-Hall 2016, 2015 ESD 11 (July 22, 2015) (protest claiming impermissible access to employer premises to campaign was denied where protestor did not request similar access).

We find that the access the employer permitted Murphy on October 6, 2016 was not granted on a discriminatory basis.  We further find that Murphy was on personal time when present at the employer that day.  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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th 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 17^th 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 343

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):