March 14, 1996
VIA UPS OVERNIGHT
John G. Platt & Cliff Webb
March 14, 1996
Page 1
John G. Platt
1480 Cedar Oak
Placerville, CA 95667
Cliff Webb, Secretary-Treasurer
Teamsters Local Union 150
7120 East Parkway
Sacramento, CA 95823
Marty Crandall
Teamsters Local Union 150
7120 East Parkway
Sacramento, CA 95823
David Lowman
Teamsters Local Union 150
7120 East Parkway
Sacramento, CA 95823
Willie Redd
2510 Wittkop Way #25
Sacramento, CA 95825
Rick Smith
8218 Augusta Way
Sacramento, CA 95828
Robert Bonsall
Beeson, Tayer & Bodine
1001 6th Street, Suite 500
Sacramento, CA 95814
Everett Parsons
Montgomery Ward
Regional Distribution Center
3689 Industrial Drive
West Sacramento, CA 95691
John G. Platt & Cliff Webb
March 14, 1996
Page 1
Re: Election Office Case Nos. Post-1-LU150-CSF
P-447-LU150-CSF
P-448-LU150-CSF
P-560-LU150-CSF
DECISION ON REMAND
Gentlemen:
John G. Platt & Cliff Webb
March 14, 1996
Page 1
This matter concerning Local Union 150 was remanded by the Election Appeals Master in In Re: Platt, 96 - Elec.- 144 (KC) (March 29, 1996), to make certain further findings of fact. The decision included three pre-election protests deferred for consideration post-election and a post-election request for a recount. The Election Officer’s decision in this matter issued after the Local Union 150 delegate election was held on February 26, 1996. In In Re: Platt, supra, the Election Appeals Master noted that the results of the election were “relatively close.”
Regional Coordinator Matthew D. Ross investigated the questions remanded to the Election Officer.
An election was conducted on February 26, 1996 for eight delegate and four alternate delegate positions. In the delegate election, five candidates on the Teamsters for Carey slate (“Carey slate”) and three candidates on the Delegates 96’ slate were elected. The eighth delegate candidate elected was Jim Baumgartner on the Carey slate receiving 672 votes.
John G. Platt and Willie Redd were candidates on the Carey slate receiving the highest number of votes in the losing delegate positions, 663 votes and 659 votes, respectively.
1. The Protest Concerning Access to the Employer’s Premises (P-447-LU150-CSF)
One of the pre-election protests, P-447-LU150-CSF, was filed against Montgomery Ward (“Ward” or “the employer”). The protester complained that Ward barred Mr. Redd and Rick Smith, two employees at the employer’s Sacramento, California facility, from campaigning in non-work areas and on non-work time.
The Election Officer found that Ward had barred the two employees from campaigning pursuant to a broad policy prohibiting solicitation. The Election Officer determined that the employer’s no-solicitation policy violated the rights of its employees to campaign on the employer’s premises in non-work areas on non-work time as guaranteed by Article VIII, Section 11(d) of the Rules.
After discussion with the Election Officer’s representative, Ward ultimately agreed that it would comply with the Rules by permitting its employees to engage in limited campaigning while at work, pursuant to the Rules. The Election Officer found, however, that the two employees barred from campaigning were not advised prior to the election that Ward had agreed to permit access to its workforce, consistent with the Rules.
Thus, a violation of the Rules had occurred prior to the Local Union 150 delegate election because the broad no-solicitation policy had remained in effect. Article XIV,
Section 3(b) of the Rules requires the Election Officer to determine whether the conduct giving rise to the violation had affected the outcome of the election. The Election Officer concluded that the employer’s policy did not affect the outcome of the election. In support of her conclusion, she cited evidence that Mr. Redd and Mr. Smith did in fact distribute campaign literature despite the employer’s policy. She further found that the ban on solicitation was enforced against all competing slates, so that no candidate received an undue advantage. The Election Officer also noted that a majority of the winning candidates were on the Carey slate, the slate supported by Mr. Redd and Mr. Smith, and that Mr. Redd was a candidate on the Carey slate.
John G. Platt & Cliff Webb
March 14, 1996
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The Election Appeals Master was satisfied that the Election Officer’s findings supported her conclusion that the Carey slate had adequate access to the voters. However, he remanded the matter to the Election Officer to make further findings of fact regarding whether any incumbent members of either slate engaged in incidental campaigning at Ward and the extent to which Mr. Redd and Mr. Smith took advantage of their employment at Ward to do the same. Relying on Wirtz v. Hotel Employees, Local 6, 391 U.S. 492, 506-07 (1968), the Election Appeals Master instructed the Election Officer to evaluate her factual findings in light of the presumption that the employer’s violation may have affected the election results.
The Delegates ‘96 slate ran in opposition to the Teamsters for Carey slate. The Delegates ‘96 slate included three Local Union 150 officers: Secretary-Treasurer Cliff Webb, President Perry Hogan, and Trustee Lee Garner. The Delegates ‘96 slate also included eight Local Union 150 business agents: Jim Tobin, Mary Ann Wade, Marty Crandall, John Hass, Christopher D. Folkman, Dave Lowman, Alan W. Daurie, who is also an organizer, and Michael Tobin. The evidence gathered upon the remand established that no member of the Delegates ‘96 slate visited Ward to campaign in the election and accordingly, none of the incumbents who are members of the Delegates ‘96 slate engaged in incidental campaigning at Ward. The only members of the Delegates ‘96 slate who visited Ward during January and February 1996 were Mr. Lowman and Mr. Crandall. Both business agents credibly stated that they did not campaign at Ward and that they did not engage in conduct which could be considered incidental campaigning. Indeed, Mr. Lowman declares that the Delegates’ 96 slate did all of its campaigning by mail.
The Carey slate included Local Union 150 Trustee Tom Cota and business agents James R. Dyer and Jake Workman. Mr. Cota and Mr. Dyer ran for delegate. Mr. Workman ran for alternate delegate. Neither Mr. Cota or Mr. Dyer visited Ward to campaign at all during the delegate election. Both Mr. Cota and Mr. Dyer received more votes than
Mr. Redd.
Mr. Smith was able to campaign on an incidental basis, while at work. He gave an employee a campaign button, and asked another employee for a contribution to the Carey slate. He also passed out the copies of The Convoy Dispatch to employees in the Ward parking lot.
A violation of the Rules alone is not grounds for setting aside an election unless there is a reasonable probability that the election outcome may have been affected by the violation. Wirtz v. Hotel Employees, Local 6, 391 U.S. 492, 507 (1968). A violation creates a presumption that the outcome was affected. Id. Once a violation is established, therefore, the Election Officer determines whether the effect of the violation was sufficient in scope to affect the outcome of the election. Id. Dole v. Mailhandlers, Local 317, 711 F. Supp. 577, 581 (M.D. Ala. 1989).
John G. Platt & Cliff Webb
March 14, 1996
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The Election Officer notes her earlier finding that the Carey slate candidates had access to Ward employees. The investigation on remand revealed that none of the incumbent candidates who received more votes than John Platt, the losing candidate with the highest number of votes, campaigned in person at Ward in Sacramento, California. Further, there is evidence that, in addition to the leafleting at Ward done by the Carey slate, Mr. Smith engaged in incidental, face-to-face campaigning on behalf of that slate at Ward and campaigned in the parking lot.
The Election Officer concludes, on the basis of the facts, that none of the incumbent candidates benefitted from the ban on solicitation by virtue of their incumbency. Therefore, the no-solicitation policy that was in effect at Ward before the Local Union 150 delegate election did not have an impact on that election.
2. The Allegation of Retaliation in P-478-LU150-CSF
In his remand, the Election Appeals Master instructed the Election Officer to fully consider Mr. Platt’s allegations in P-448-LU150-CSF “that Local Union 150 retaliated against Mr. Redd and Mr. Smith, regardless of whether this alleged violation may have affected the election’s outcome. In P-478-LU150-CSF, the protest contends that Local Union 150 Business Agents Crandall and Lowman retaliated against Mr. Smith and Mr. Redd by failing to protest, and thereby endorsing, the threat of Ward to discharge the two employees for their solicitation activities.
Everett Parsons, Ward’s facility manager, wrote a letter dated January 23, 1996 to Local Union 150 Secretary-Treasurer Cliff Webb stating:
As you are aware, Montgomery Ward has a strict policy regarding solicitation on company premises during company time. Two associates, Willie Redd and Rich Smith has (sic) been actively involved in this process.
Please inform your local business agents of this situation, so they may assist us in eliminating this practice.
I would hate to terminate the above-named associates over local election business, should this continue.
Should you have further questions, please call me at
(916) 321-5162.
The protester bases his charge of complicity on a letter from Secretary-Treasurer Webb and Business Representative Crandall dated January 30, 1996, transmitting the letter from
Mr. Parsons to Mr. Smith. That letter reads:
Rich, enclosed is a copy of the letter received in this office from Everett Parsons, Montgomery Ward Facility Manager, which is self explanatory.
John G. Platt & Cliff Webb
March 14, 1996
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I’m sure you are aware of the Company’s policy in these matters; however, I felt you should be aware of this correspondence.
If you have any questions, please do not hesitate to contact me.
The protester also contends that in a discussion about the employer’s no-solicitation policy at the beginning of a grievance meeting held on January 31, 1996 at Ward called for other purposes, Mr. Crandall and Mr. Lowman failed to object to the employer’s no-solicitation policy. Mr. Crandall brought up the letter received by Mr. Webb. Mr. Parsons reiterated the policy and stated it applies to everyone. It does not appear that the union representatives voiced any opposition to the policy. However, most of the witnesses at the meeting state that Mr. Crandall advised the employer’s representative that the union would grieve any discipline imposed pursuant to the no-solicitation policy.
Mr. Crandall subsequently wrote a letter to Mr. Parsons dated February 21, 1996, in which he stated:
Over the past several weeks, various members of Local 150 employed by Montgomery Ward have been accused of engaging in “solicitation on company premises during company time” in violation of company policy.
Pursuant to Article VIII Section 11(d) and (e ) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election all members of the International Brotherhood of Teamsters including employees of Montgomery Ward, enjoy the freedom to exercise their political rights thereunder. Enclosed you will find a copy of Article VIII, Section 22 (d) and (e) which sets forth these rights in detail.
Please be advised that Local 150 has and will continue to vigorously represent all its members whose rights may be threatened. If you have any questions, please do not hesitate to call.
Neither Mr. Smith nor Mr. Redd was ever disciplined pursuant to the no-solicitation policy.
IBT members retain the right to campaign in non-work areas on non-work time.
Article VIII, Section 11(f) of the Rules provides:
John G. Platt & Cliff Webb
March 14, 1996
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Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules is prohibited.
No violation of this section can be sustained unless there is evidence which expressly or inferentially connects the conduct which is alleged to be improper to an activity protected by the Rules. See Giacumbo, P-100-IBT-PNJ (October 13, 1995). Here, while the Local Union 150 representatives did not vociferously oppose the no-solicitation policy when it was first promulgated, they told the employer they would grieve any discipline imposed under the policy. Mr. Crandall later unambiguously made the position of the union clear in his letter dated February 21, 1996 that the union intended to enforce the political rights of its members guaranteed by the Rules.
Based on these facts, the Election Officer DENIES this protest.
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
Matthew D. Ross, Regional Coordinator
Victoria Chin, Adjunct Regional Coordinator