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Office of the Election Supervisor for the International Brotherhood of Teamsters













November 18, 1996




Jeanne Madlener

November 18, 1996

Page 1



Jeanne Madlener

3300 W. 53rd Street #826

Sioux Falls, SD  57106


Ron Larson, Secretary-Treasurer

Teamsters Local Union 749

105 N. Conklin

Sioux Falls, SD  57103

Yellow Freight Systems

281 S. Kiwanis Avenue

Suite 300

Sioux Falls, SD  57105


Daniel Hornbeck

Yellow Freight Systems

10990 Roe Avenue

Overland Park, KS  66207

Jeanne Madlener

November 18, 1996

Page 1



Re:  Election Office Case No. P-1151-LU749-RMT




Jeanne Madlener, a shop steward for Local Union 749, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) alleging that Yellow Freight Systems (“YFS”) violated the Rules when its Sioux Falls customer service center adopted a policy prohibiting campaign activities by employees, regardless of whether such employees were “on duty, break, lunch, or off duty.”   Under this policy, YFS prohibited the posting of campaign materials on the local union and the “common” bulletin boards at the Sioux Falls facility, and it removed the Election Officer’s “Notice of Election” from the local union bulletin board.


Jeanne Madlener

November 18, 1996

Page 1



Daniel Hornbeck, vice president and secretary of YFS, responds that YFS is not subject to the Election Officer’s jurisdiction because YFS was not a party to the Consent Order from which the authority of the Election Officer is derived.  With respect to the merits, Mr. Hornbeck admits that on September 17, 1996, YFS published an “E-mail” memorandum entitled, “Election Advertising,” which prohibited campaign activities by employees, but states that the e-mail  policy has been revoked and replaced with the company’s general “no solicitation/no distribution policy,” which Mr. Hornbeck alleges does not violate the Rules. Mr.  Hornbeck further states that YFS has no objection to the use of the common bulletin board for campaign-related purposes until the close of the voting period in the International officer elections.  Regarding

Ms. Madlener’s allegation about the Election Officer’s “Notice of Election,” Mr. Hornbeck states that to the best of his knowledge, no such document was removed by YFS.  Ron Larson, secretary-treasurer of Local Union 740, states that the Election Officer’s “Notice of Election” has now been re-posted.


This protest was investigated by Regional Coordinator Jonathan Wilderman.


1.  Jurisdiction of the Election Officer


YFS maintains that it is not subject to the Election Officer’s jurisdiction because YFS was not a party to the Consent Order from which the authority of the Election Officer is derived. The authority of the Election Officer is derived from the Consent Order entered into in United States v. International Bhd. of Teamsters, et al., 88 Civ. 4486 (DNE).  Pursuant to this authority, the Election Officer has promulgated the Rules for the conduct of fair, honest, open and informed elections.  She retains the authority to interpret and to enforce the Rules.  Her authority may extend to nonparties, including employers who are in a position to frustrate the goals of the Consent Order and this supervised election process.  United States v. IBT (1996 Election Rules Order), 896 F. Supp. 1349, 1366 (citing All Writs Act, 28 U.S.C. §1651(a) (1988); United States v. New York Tel. Co., 434 U.S. 159, 174 (1977); United States v. International Bhd. of Teamsters, 948 F.2d 98, 104-05 (2d Cir. 1981), vacated as moot, 113 S. Ct. 31 (1992); United States v. International Bhd. of Teamsters, 907 F.2d 277, 280-81 (2d Cir. 1990). 


2.  The Right of Employees to Campaign on YFS’s Sioux Falls Facility             


On September 17, 1996, Don Smith, customer service manager at the Sioux Falls facility, issued an e-mail memorandum entitled, “Election Advertising,” which included the following provisions:


No employee either on duty, break, lunch or off duty will be allowed to distribute or campaign inside the building.  Any material found after 5 pm on Wednesday will be confiscated.


In her protest, Ms. Madlener raises general concerns that YFS’s e-mail policy would prevent employees at the Sioux City facility from being informed about the International officer election.  She states:


Local 749 has not supplied . . . information on either candidate running for president of the International Brotherhood of Teamsters, therefore with Local 749 and YFS not allowing members to post or campaign - we are not being kept informed and many members do not know there is an election or the seriousness of it.



Jeanne Madlener

November 18, 1996

Page 1



Ms. Madlener raises specific concerns about the use of the common bulletin board at the facility, the use of the local union bulletin board, and YFS’s alleged removal of the Election Officer’s “Notice of Election” from the local union board.


During the investigation of this protest, YFS withdrew its e-mail policy and issued instead its general no-solicitation policy in effect at other YFS facilities.  Mr. Hornbeck stated to the investigator that YFS recognizes an exception to the policy for campaigning in compliance with the Rules


The use of bulletin boards at employer facilities is governed by Article VIII,

Section 11(d) of the Rules, which guarantees that preexisting rights to use such boards will continue to apply without discrimination in the International officer election.  It states:


No restrictions shall be placed upon candidates’ or members’ preexisting rights to use employer or Union bulletin boards for campaign publicity . . . Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.


YFS contends that posting campaign material on the common bulletin board in the Sioux Falls facility is inconsistent with its no-solicitation policy.  After the protest was filed, however,  YFS agreed to permit campaign literature to be posted on common bulletin boards until the voting period is completed for the International election.


Mr. Hornbeck alleges that use of the local union bulletin board is governed by Article 19, Section 2 of the National Master Freight Agreement.  The Master Freight Agreement restricts use of the local union board to matters of “official union business.”  Under the Rules, such a collective bargaining provision controls postings on the local union bulletin board unless past practice has converted the board to more general use.  Blake, P-953-LU848-CLA (October 30, 1991).


Here, there is no evidence that the local union bulletin board at the Sioux Falls facility was used for campaign purposes.  No past practice converted it into a general purpose board, and consequently, the terms of the Master Freight Agreement govern its use.  The Election Officer finds no violation of the Rules with respect to YFS’s local union bulletin board.


Regarding Ms. Madlener’s allegation that a violation of the Rules occurred when the Election Officer’s “Notice of Election” was removed from the local union bulletin board by YFS, the Election Officer finds the issue to be resolved.


In consideration of the foregoing this protest is RESOLVED with regard to the e-mail policy, the common bulletin board, and the “Notice of Election” and DENIED in all other respects.



Jeanne Madlener

November 18, 1996

Page 1



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 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile

(202) 624-3525.  A copy of the protest must accompany the request for a hearing.






Barbara Zack Quindel

Election Officer



cc:               Kenneth Conboy, Election Appeals Master

Jonathan Wilderman, Regional Coordinator