November 21, 1996
VIA UPS OVERNIGHT
Dave Staiger
November 21, 1996
Page 1
Dave Staiger
3031 Roosevelt Street
Hamtramck, MI 48212
Doug Burchant, Supervisor
United Parcel Service
14000 E. Whitcomb
Madison Heights, MI 48071
Martin Wald
Schnader, Harrison, Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Dave Staiger
November 21, 1996
Page 1
Re: Election Office Case No. P-1185-LU243-MGN
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 Dave Staiger, a member of Local Union 243. Mr. Staiger alleges that agents of United Parcel Service (“UPS”) impermissibly interfered with his right to distribute campaign materials, in a non-work area during non-work time, at the UPS facility in Madison Heights, Michigan. Specifically,
Mr. Staiger alleges that on October 31, 1996, UPS prohibited him from distributing campaign literature to IBT members employed at UPS near the facility’s time clock as employees waited to begin their work shift. Mr. Staiger argues that such campaign access is necessary because other avenues of campaign access provided by the employer are inadequate in reaching IBT members. Mr. Staiger also argues that in the past UPS has permitted employees to pass out literature near the clock and, thus, there is a pre-existing right to campaign in the area.
In response, UPS states that the area near the time clock is a work area and that other adequate avenues of campaign access, such as locker rooms, break rooms and the employee parking lot, have been provided by the company inside and outside the facility.
This protest was investigated by Regional Coordinator William A. Wertheimer, Jr.
Dave Staiger
November 21, 1996
Page 1
The investigation disclosed that on October 31, 1996, Mr. Staiger distributed campaign literature near the time clock. An estimated 30 employees were gathered waiting to begin their shifts. Mr. Staiger states he has previously distributed campaign material to members in the same area of the facility and that supervisors were present when this occurred. On October 31, however, Mr. Staiger was asked by UPS Supervisor Doug Burchant to cease campaigning.
Mr. Staiger stopped distributing the material, but argued with Mr. Burchant that he was permitted, under the Rules, to distribute the literature in this area. After consulting with UPS officials and several days later, Mr. Burchant told Mr. Staiger that he would not be permitted to continue campaigning near the time clock. Mr. Staiger filed the instant protest.
UPS has permitted employees who are not on work time to campaign in the locker room and lunchroom. In addition, employees have the right to campaign in the employee parking lot.
The Election Officer is unpersuaded by Mr. Staiger’s claim that his ability to effectively exercise his rights under the Rules is impeded by UPS’s prohibition against campaigning near the time clock. While Mr. Staiger has provided the Election Officer with diagrams of the facility to support his contention, he has failed to demonstrate that the communication avenues of access afforded by UPS are insufficient. As UPS states, there are only two areas where employees enter and exit the facility. Mr. Staiger has presented no persuasive reasons why employees cannot be contacted in this manner. Moreover, the ability of employee-campaigners to communicate with fellow employees is enhanced by the availability of the facility’s lunchroom and locker room for campaign purposes. Therefore, Mr. Staiger’s initial argument lacks merit.
As to Mr. Staiger’s second contention, a pre-existing right to campaign inside an employer facility depends on past practice at the facility. Article VIII, Section 11(d) of the
Rules states:
[N]o restrictions shall be placed upon candidates’ or members’ preexisting rights 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 nondiscriminatory basis.
The protester alleges that on several occasions during the past few months, he has passed out campaign literature in the area beside the time clock, and that this was done in the presence of UPS supervisors. Mr. Staiger also states that he campaigned in a similar manner on three or four occasions in the two months preceding the Local Union 243 delegate election this past spring. Local Union 243 members Dave Rumble and Damon Pruett, also employed at the UPS facility, credibly confirm the protester’s account. Marty Wald, counsel for UPS, suggested that the investigator contact the company’s first-line supervisors at the facility, Mr. Burchant and Chris Mirande. Despite Regional Coordinator Wertheimer’s efforts to contact these individuals, and a subsequent telephone call to Mr. Wald, UPS did not respond to the past practice issue.
Dave Staiger
November 21, 1996
Page 1
Upon consideration of the evidence presented, the Election Officer finds that UPS’s practice of permitting employees to campaign near the time clock created a pre-existing right for IBT members to campaign in that area of the facility. UPS has presented no evidence to the contrary, and the Election Officer has no reason to doubt the credibility of the protester or Messrs. Burchant and Mirande.
For the foregoing reason, Mr. Staiger’s 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.
The Election Officer orders that UPS cease and desist from interfering with the right of IBT members employed at the Madison Heights facility to campaign during non-work hours in the immediate vicinity of the time clock.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).
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.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master
William A. Wertheimer, Jr., Regional Coordinator