Protest Decisions

              March 14, 1996

VIA UPS OVERNIGHT

Mark Wigley

March 14, 1996

Page 1

Mark Wigley

5905 Ranch Road

Cocoa, FL 32927

Danny Peterson, President

Teamsters Local Union 385

126 N. Kirkman Road

Orlando, FL 32811

Everett Street

5701 Brookgreen Avenue

Orlando, FL 32839

Martin Wald

Schnader, Harrison, Segal & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Mark Wigley

March 14, 1996

Page 1

Re:  Election Office Case No. P-554-LU385-SEC

Gentlemen:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by

Mark Wigley, a member of Local Union 385.  Mr. Wigley alleges that Local Union 385 President Danny Peterson and Business Agent Everett Street campaigned on union time and used union resources to support the Local 385 slate.  Mr. Peterson is a delegate candidate of the Local 385 slate.

The protest was investigated by Regional Coordinator J. Griffin Morgan.

Mr. Peterson is a candidate for delegate on the Local 385 slate and Mr. Street is a supporter of that slate.  As a business agent, Mr. Street normally services the employees at the United Parcel Service’s Leesburg, Ocala Center and Cocoa Center work sites. 

On February 20 and 21, 1996, Mr. Street authored three notices on official local union letterhead, which were posted at Leesburg, Ocala Center and Cocoa Center.  The first notice, posted at Leesburg, stated:

Mark Wigley

March 14, 1996

Page 1

This is to inform you that Danny “Pete” Peterson and I will be at the Leesburg Center on Thursday, February 29, 1996 at 8:00 a.m., to discuss the upcoming Delegate Elections and any concerns you may have.

The second notice was posted at the Ocala Center and was basically the same, notifying the members that Messrs. Peterson and Street would be there on February 23, 1996.  The third notice, posted at the Cocoa Center, announced that they would be present on February 26 to discuss the upcoming delegate elections.  That notice also added that there would be a grievance hearing at 2:00 p.m. “to discuss your concerns and handle any grievances that you may have pending.”  Mr. Street stated that he produced the notices because he was getting numerous questions about the delegate elections and thought it was important to explain the process to the members.

All three notices were signed by Mr. Street and directed stewards to post the notice on the bulletin board.  There is no question that the notices were authored by Mr. Street during work time and were produced during office hours using local union staff, office supplies and equipment.

On February 26, 1996, at approximately 8:00 a.m., Messrs. Peterson and Street went to the Cocoa Center.  They did not have a meeting with members to talk about the delegate election.  Instead, Mr. Peterson spent most of his time actually campaigning, while Mr. Street spent most of his time taking care of union business and a small amount of time campaigning for the Local 385 slate.  During the time they were at the Cocoa Center, there were no grievance meetings held and no union work was performed which required Mr. Peterson to accompany the business agent who regularly services that center.  Mr. Peterson’s records indicate that he spent 4.75 hours at the Cocoa Center.

Mr. Peterson states that he did not know at that time that Mr. Street had sent out the three notices to members.  Upon learning that these notices were printed on union stationery using union resources, he discontinued going to barns campaigning with Mr. Street.

Article VIII, Section 11(b) of the Rules prohibits union officers from campaigning “on time that is paid for by the Union.”  The provision further states that “campaigning incidental to regular Union business is not, however, violative of this section.”

While a union staff person may not campaign during work hours, the Rules permit campaign activity that is incidental to work.  In Newhouse, P-253-LU435-RMT (January 4, 1996), the Election Officer determined that a local union staff person who solicited an IBT union business while on union time did not violate the Rules.  Similarly, short campaign-related conversations between business agents and stewards which occur prior to commencement of contract negotiations do not violate the Rules.  Dillon, P-467-LU284-CLE (March 4, 1991).

Mark Wigley

March 14, 1996

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While Mr. Peterson admits he spent most of his time at Cocoa Center engaged in campaigning, he states that he helped Mr. Street with an accident investigation and talked with management regarding a recent locker search.  The Election Officer finds that the campaign activities were not incidental to Mr. Peterson’s work because of the length of time which the campaigning involved.  Furthermore, it was Mr. Street who regularly conducts union business at Cocoa Center, not Mr. Peterson.  Under the circumstances, the Election Officer concludes that the purpose of Mr. Peterson’s visit was for campaigning and, thus, the campaigning was not incidental to union business.  Therefore, Mr. Peterson campaigned on union time in violation of Article VIII, Section 11(b) of the Rules.  See Clark, Post-69-LU420-CLA, et seq. (May 15, 1991).  The evidence does not support a violation by Mr. Street.  Any campaigning he engaged in at Cocoa Center was clearly incidental to the union business he was conducting at that location.

The Election Officer also finds that the production of the notices by Mr. Street using union time, union stationery, union secretaries, the union copier and union postage is a violation of Article VIII, Section 11(c), which forbids the use of such union resources in campaigning.  The notices specifically state that Mr. Peterson will appear at various work sites to “discuss the upcoming Delegate Elections and any concerns you may have.” 

Accordingly, the protest is GRANTED.

When the Election Officer determines that the Rules have been violated, she may “take whatever remedial action is appropriate.”  Article XIV, Section 4.  In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.

To remedy the violation in this case, the Election Officer orders Mr. Peterson to take the following actions within two (2) days of this decision:

(1) Make a reimbursement from his campaign fund to the local union of $143.08.[1]

Mark Wigley

March 14, 1996

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(2) Mr. Peterson’s campaigning occurred on February 26, 1996, the same day the ballots for the local union delegate election were mailed to the members.  In light of the timing of the violation and the use of his union office to support this violation, the Election Officer orders the local union to mail one piece of campaign literature on behalf of the Independent slate and the independent candidates for delegate (Brian Heath, Paul Nowlin,

Benjamin Moore and Mike Moore) and the independent candidates of alternate delegate (Michael Karcher and

Murray “Glenn” Dykes) to those local union members employed at Cocoa Center.  The literature for the slate or any independent candidate shall be limited to the front and back of one sheet of paper that is no larger than 8½11 inches.  The literature shall be duplicated and folded.  The local union shall bear the costs of mailing.  See Holcomb, P-252-LU597-ENG (January 21, 1991).  Mr. Peterson shall immediately send the attached notice to the Independent slate and the independent candidates listed above.               

Within two (2) days of receipt of the attached notice from the local union, the slate or any of the candidates, may submit campaign literature to the local union.  The local union shall reproduce and mail the literature to the local union members at Cocoa Center within one (1) day of receipt of any campaign literature.

(3) Within seven (7) days of the date of this decision,

Mr. Peterson shall file an affidavit with the Election Officer detailing his compliance with this 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

Mark Wigley

March 14, 1996

Page 1

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 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

J. Griffin Morgan, Regional Coordinator

Notice to the Independent Slate

and the independent candidates for delegate

and alternate delegate positions:

The Rules for the 1995-1996 IBT International Union Delegate and Officer Election prohibit campaigning on time that is paid for by the union and the use of union resources to support campaigning activities.  I violated these provisions when I campaigned on union time and when local union resources were utilized to produce campaign-related notices.

The Election Officer has directed the local union to mail literature to the local union members employed at the Cocoa Center on behalf of the Independent slate and any independent candidate for delegate or alternate delegate who request such a mailing. If you want such a mailing, you should provide the campaign literature limited to the front and back of one sheet of paper that is no larger than 8½11 inches, duplicated and folded.  The local union shall bear the costs of mailing.

_____________________

Danny Peterson, President             

Teamsters Local Union 385

This is an official notice which must remain posted for 30 consecutive days and must not be defaced or altered in any manner or be covered with any other material.

Approved by Barbara Zack Quindel, IBT Election Officer.