Protest Decisions

October 12, 1995

VIA UPS OVERNIGHT

Richard Meyer & Russell Halbert

October 12, 1995

Page 1

Richard Meyer

1570 Flicker Drive

Florissant, MO 63031

Russell Halbert

38 E. Lakewood

Fenton, MO 63026

Roadway Express, Inc.

205 Soccer Park Road

Fenton, MO 63026

John Kennedy, President

Teamsters Local Union 600

9041 Riverview Drive

St. Louis, MO 63137

John Layton, Secretary-Treasurer

Teamsters Local Union 600

9041 Riverview Drive

St. Louis, MO 63137

Richard Meyer & Russell Halbert

October 12, 1995

Page 1

Re:              Election Office Case No. P-130-LU600-MOI

                    Election Office Case No. P-131-LU600-MOI

Gentlemen:

Related pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-96 IBT International Union Delegate and Officer Election (“Rules”) by

Richard Meyer and Russell Halbert, both members of Local Union 600.  In their protests, Mr. Meyer (P-130-LU600-MOI) and Mr. Halbert (P-131-LU600-MOI) allege that they have been denied access to bulletin boards maintained by their employer, Roadway Express

(“Roadway”), in violation of the Rules.[1]  The protests also name Local Union 600 as a charged party.  Because these protests are asserted against the same parties and contain similar facts, they were consolidated for purposes of resolution by the Election Officer.

Richard Meyer & Russell Halbert

October 12, 1995

Page 1

              Regional Coordinator Michael D. Gordon conducted the investigation.

The terminal facility operated by Roadway in St. Louis employs members of Local Union 600 in the categories of dock worker, city driver and over-the-road driver.  Mr. Meyer is an over-the-road driver.  Mr. Halbert works in the terminal. 

Three separate break rooms are set aside for the use of these individual employee groups.  In each is placed a glass-enclosed bulletin board for company use, a glass enclosed bulletin board for union business and a non-enclosed, cork-style bulletin board which may be used in a general manner by employees.

Roadway is signatory to the National Master Freight Agreement which provides as follows, at Article 19, Section 2:

Union Bulletin Boards

The Employer agrees to provide suitable space for the union bulletin board in each garage, terminal or place of work.  Postings by the Union on such boards are to be confined to official business of the Union.

Since January 1995, Roadway has maintained a notice in a front area of its main building which states, consistent with this contractual provision, that only official union material is to be posted on the general bulletin boards.

The Protesters state that in late June or early July, they posted a variety of materials on the bulletin board reserved for general employee use.  Two of these items are relevant to these protests:  (1) an article from Time magazine, dated May 15, 1995 and (2) a bylined feature appearing in a January 23, 1995 edition of a publication entitled Traffic World. The Time magazine article is critical of General President Ron Carey.  The Traffic World feature praises the candidacy of James P. Hoffa. 

Roadway did not object to the posting of these campaign materials.  Jim Bliese, Roadway’s relay manager in that facility, stated that while the use of the general bulletin board was limited by company policy to non-political notices, the January 1 notice at the front of the main building setting forth the policy was not located in a place likely to seen by drivers.

Richard Meyer & Russell Halbert

October 12, 1995

Page 1

At approximately the same time that the protesters began their posting activity, a number of other employees began to post a variety of items on the general-use board.  The investigation failed to reveal the identities of any of these employees.  Some of these posted documents were campaign-related.  Others were not.  This activity escalated to the point where notices also began to appear on other bulletin boards, which formerly had been maintained strictly for official company and union use.   Further, employees began to utilize locations which had never before been subject to posted notices, including the bathroom, the hallway and breakroom walls.  Sometime in June, one or more of the union stewards defaced the anti-Carey and pro-Hoffa notices with their own written comments and placed the altered documents inside the glass of the official union bulletin board.[2]   In the previous winter, an altercation broke out between workers involving political disagreements. 

On August 11, 1995, Mr. Bliese posted a notice behind the dispatcher’s window.  It read:

There has been a long standing policy that items on the bulletin boards are limited to official company and union business.

Lately, the amount of non-official postings have gotten out of hand.

Effective immediately, any non-authorized posted material will be removed from the bulletin board, and repeat offenders of these postings will be subject to disciplinary action.

When Mr. Meyer complained, Mr. Bliese directed him to the January 1 notice which had been posted in the front area of the terminal.  Mr. Meyer had not previously seen the notice.

On August 31, 1995, the president of the local union sent a letter to the terminal manager stating, in pertinent part:

It is the position of Teamsters Local 600 that these three [general purpose] boards may be used by our members to post Teamster campaign literature.  The Union boards under glass have been and will continue to be used for official Union postings only.  

Roadway takes the position that it fully intends to enforce its policy as stated in the August 11 posting.  Mr. Meyer, however, was successful in reposting the Time article and the pro-Hoffa literature subsequent to August 11, claiming that he did so in full view of the dispatcher.  Certain other local campaign literature was posted by him on August 21, 1995.  By August 22, 1995, it had been removed.

The Rules, at Article VIII, Section 11(d), state, “No restrictions shall be placed upon candidates’ or members’ preexisting rights to use employer or Union bulletin boards for campaign publicity.” 

Richard Meyer & Russell Halbert

October 12, 1995

Page 1

The Election Officer first concludes that a pre-existing right to use Roadway’s general purpose bulletin boards to post campaign publicity did exist.  Under its collective bargaining agreement, Roadway’s only obligation was to provide space for notices relating to the “official business of the Union.”  Its policy, as epitomized in the January 1 notice, was to limit the use of union bulletin boards to “official” material. 

But the statement of policy was not placed in a location reasonably calculated to inform drivers of its contents.  And though it was not so required, Roadway suffered the installation of several cork-type bulletin boards on its premises.  Despite the lack of a contractual obligation and the existence of a formal policy, it permitted employees to post campaign materials on the bulletin board provided for their general use for several weeks prior to

August 11, 1995.  Even after August 11, Mr. Meyer was successful in reposting campaign material relevant to the 1995-1996 International election without repercussion of any kind.

In Blake, Election Officer Case P-953-LU848-CLA (October 30, 1991), the prior Election Officer stated:

While the existence of a contractual prohibition on the use of union bulletin boards for campaign publicity is important evidence in determining whether there is a pre-existing right of access to the bulletin board, it may not be dispositive of the issue.  The de jure restricted union bulletin board may have been transformed through past practice into a de facto general purpose bulletin board.  In such case it would be violative of the Rules to prohibit the posting of campaign material on such boards even in light of the contractual prohibition on such posting.

Several applicable cases are cited in that decision, including Hall v. IBT Local Union 270,

90 - Elec. App. - 1 (October 4, 1990) (Rules violated when the Union attempted to enforce a contractual ban on posting campaign literature on union bulletin boards where there was evidence that such boards had been previously used for non-union postings); Helton v. NLRB, 656 F.2d 883 (D.C. Cir. 1981) (Unfair labor practice found when Union refused to allow employees to post materials critical of union on the union’s bulletin board, despite collective bargaining prohibition on such posting, where it was found that such prohibition had not been enforced in the past); Container Corp. of America, 244 NLRB No. 53, 102 LRRM 1162 (1979) (Unfair labor practice found when employer removed union’s newsletters from bulletin boards and threatened employee with disciplinary action for any reposting of newsletters since workers in past used bulletin boards to post personal and union notices without policing by employer).

The notice of August 11, 1995 forbids the posting of any “non-authorized posted material” and promises that offenders will be disciplined.  Due to the lack of enforcement prior to August 11, 1995, and to the extent that its policy applies to the posting of campaign materials on the general bulletin board, Roadway has violated the Rules.

However, the pre-existing right created by Roadway’s failure to uniformly enforce its policy is not without limitation. There is no evidence to show that Roadway’s failure to enforce its policy extends to any type of conduct or activity other than the placing of campaign materials on the general bulletin board.  Roadway’s employees have that right.  But they do not have the right to post campaign literature in hallways, on break room walls or in bathrooms. Similary, there is no right to alter or relocate such postings.   Clearly, no employee or group of employees have a right to engage in physical altercations or any other conduct which interrupts the conduct of business.[3]  

Richard Meyer & Russell Halbert

October 12, 1995

Page 1

Finally, the Election Officer concludes that there is insufficient evidence to sustain the charge the local union has violated the Rules.  The local union’s position throughout the investigation has been that Roadway’s attempts to prohibit campaign materials on the general purpose bulletin boards are in violation of the Rules.  There is no evidence to show that the unidentified stewards who defaced these materials were acting on the direct or implied orders of Local Union 600, or that their activities were within the legitimate scope of their authority as union agents.

Based upon the foregoing, the protest is GRANTED as to Roadway Express, and DENIED as to Local Union 600.

When the Rules have been violated, “the Election Officer may take whatever remedial action is appropriate.”  Article XIV, Section 4.  To remedy this violation, the Election Officer hereby orders that Roadway Express post the enclosed Notice and forward the Notice to Local Union 305 for posting on all glass-enclosed bulletin boards reserved for official company announcements existing within its St. Louis facility for a 30-day period.  The Election Officer further directs Roadway Express to permit posting of campaign literature on all general purpose bulletin boards not reserved for official company or union announcements, consistent with this decision.

Within two (2) days of posting the attached note, Roadway Express shall file an affidavit with the Election Officer setting forth the steps it has taken to comply with this decision and order.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:              Kenneth Conboy, Election Appeals Master

Michael D. Gordon, Regional Coordinator

NOTICE TO TEAMSTER MEMBERS

EMPLOYED BY ROADWAY EXPRESS

You have the right to participate in campaign activities on behalf of candidates for delegate and alternate delegate to the 1996 IBT Convention.

You have the right to participate in campaign activities on behalf of candidates for International Officer in the IBT.

You have the right to post campaign material on general purpose bulletin boards not reserved for official company or union announcements since such bulletin boards have been used in the past for similar postings.  However, these bulletin boards will be the only place campaign literature may be posted.

No one, no company official, union representative or member, can intimidate, harass, threaten or prohibit you from engaging in the above-described campaign activity.

Roadway Express will not interfere with your right to post campaign material on the bulletin boards designated above in the same manner as used in the past.

You do not have the right to engage in any conduct which reduces production, decreases discipline, is unsafe or in any way interrupts the business of Roadway Express.

_________________________________

ROADWAY EXPRESS

This is an official notice and must remain posted for 30 consecutive days from the day of posting, and must not be altered, defaced or covered by any other material.

Prepared and approved by Barbara Zack Quindel, Election Officer, IBT.