October 5, 1998
VIA FIRST CLASS MAIL
Kim A. Shanahan
October 5, 1998
Page 1
Kim A. Shanahan
727 Lockhaven Drive
Pacifica, CA 94044
Michael J. McLaughlin
Secretary-Treasurer
Teamsters Local Union 856
185 Berry Street, Suite 3510
San Francisco, CA 94107
Hoffa-Mack Campaign
3295 Monika Lane
Hayward, CA 94541
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Arthur Z. Schwartz, Esq.
Kennedy, Schwartz & Cure
113 University Place
New York, NY 10003
Frank Fitzmaurice
Northwest Administrators
1400 Fashion Island Boulevard, #1400
San Mateo, CA 94402
Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
Kim A. Shanahan
October 5, 1998
Page 1
Re: Election Office Case No. PR-209-LU856-PNW
Gentlepersons:
Kim Shanahan, a member of Local Union 856 and a candidate for International office on the Tom Leedham “Rank and File Power” Slate (“Leedham Slate”), 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”) against Northwest Administrators in San Mateo, California and the Hoffa Unity Slate (“Hoffa Slate”). Ms. Shanahan alleges that on
Kim A. Shanahan
October 5, 1998
Page 1
August 4, 1998, she went into Northwest Administrators and posted campaign literature supporting the Leedham Slate on the bulletin board in the break room, but when she returned on August 5, the campaign literature was defaced with stickers supporting James P. Hoffa, a candidate for general president. The protester additionally alleges that while in the break room at Northwest Administrators on August 4, she observed a display of Hoffa hats with a sign indicating that they were for sale for $15.00.
Frank Fitzmaurice, the manager of Northwest Administrators responds that Ms. Shanahan is not an employee and therefore had no business entering the company premises without permission. While employees are allowed to post campaign materials on the bulletin boards, there is no such right for non-employees. As to the sale of Hoffa campaign materials,
Mr. Fitzmaurice states that employees have been allowed to sell items for fund raising in the break room and that he did not understand this to constitute an improper employer contribution under the Rules.
The Hoffa Slate responds that it does not condone the destruction of another candidate’s campaign materials. As to the sale of Hoffa campaign material, it states that this was not sanctioned by Mr. Hoffa or the Hoffa Slate.
This protest was investigated by Adjunct Regional Coordinator Paige Keys.
There is no dispute as to the facts. Northwest Administrators handles pension administration. On August 4, the protester entered the premises of Northwest Administrators without advising anyone and proceeded to the break room where she posted Leedham Slate campaign literature on the bulletin board. There was Hoffa campaign material on the bulletin board. She moved some items to the side to make room, and posted the Leedham literature. While in the break room, the protester noticed Hoffa hats on a table with a sign reading $15.00. The protester stated that other campaign materials supporting Mr. Hoffa were available such as bumper stickers. In order to get to the break room, the protester had to pass through the reception area where there is a receptionist and a sign-in sheet and through a long office with about 60 people working.
Northwest maintains a relaxed policy on posting of personal notices and campaign literature by employees on the bulletin boards. There is no evidence as to whom defaced the Leedham campaign literature that the protester posted. The shop steward Mary Bright did not see Ms. Shanahan post the campaign literature, but noticed the literature sometime on
August 4 or 5. She also noticed at the same time that it had been defaced with Hoffa stickers and attempted to remove as many of the stickers as possible.
Mr. Fitzmaurice stated that employees have sold a variety of items in the break room including Girl Scout cookies and soccer team candy bars. When advised that it was a violation of the Rules to sell items supporting a candidate or slate in the International officer election on employer premises, Mr. Fitzmaurice replied that this was not the intent of Northwest Administrators to violate the Rules. In a subsequent conversation, Mr. Fitzmaurice advised the investigator that Northwest Administrators had changed its policy and employees were no longer permitted to sell any items in the break room.
Kim A. Shanahan
October 5, 1998
Page 1
I. Access Inside Employer Premises
The Rules at Article VIII, Section 11(d) only permits campaigning by non-employees inside an employer’s facility if it is established that there is a pre-existing right to do so. Thus, that section states, in pertinent part: “[N]o restrictions shall be placed upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature . . . on employer . . . premises.” If there is no pre-existing right, non-employees are not permitted inside employer facilities. If a pre-existing right is created, “[s]uch facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.”
While Article VIII, Section 11(e) of the Rules creates a limited right-of-access to IBT members and candidates to distribute literature and seek support for their campaign in any parking lot used by union members to park their vehicles in connection with their employment, that section specifically states that “[n]othing in this Subsection shall entitle any candidate or other Union member to access to any other part of premises owned, leased or operated or used by an employer . . . .”
Here, there is no evidence of a pre-existing right for non-employees to post campaign literature inside the employer’s premises. Indeed, Ms. Shanahan entered the premises without seeking permission or signing in. Nevertheless, Mr. Fitzmaurice stated to the investigator that if Ms. Shanahan had asked to post the campaign materials on the bulletin board, Northwest Administrators would have permitted her to do so. Therefore, Northwest Administrators has agreed that non-employees desiring to have campaign literature posted should give the materials to the receptionist and Mr. Fitzmaurice will post the materials, giving equal access to all candidates. Moreover, if the protester desires to return with campaign material, she should sign in at reception and she will be escorted to the break room where she will be permitted to post campaign literature.
II. Defacement of Campaign Literature
The Election Officer has consistently held that the removal or defacement of properly posted campaign literature is a serious violation of the Rules. See Amodio, P-1073-LU182/317-PGH (November 20, 1991); Teller, P-945-LU741-PNW (October 14, 1991); Fleeger, P-876-LU988-SOU (September 11, 1991); Blake, P-767-LU439-CSF (July 1, 1996). Thus, the Election Officer finds that the defacement of the Leedham campaign literature indicates a violation of the Rules.
Kim A. Shanahan
October 5, 1998
Page 1
However, the Election Officer's investigation did not reveal the identity of the violator or violators. Therefore, the Election Officer does not attribute the defacement to Northwest Administrators or any employee member or individual who works there. That defacement, however, was a serious violation of the Rules. To inform members of their posting rights and to warn members and other persons of the serious nature of removing or defacing such postings, the Election Officer will order the posting of an official notice, in the remedy section of this decision, explaining such rights and responsibilities. All persons at Northwest Administrators are hereby put on notice that interference with posting rights will not be tolerated.
III. Employer Contribution
The protester argues that Northwest Administrators violated the Rules by permitting employee/members to sell Hoffa paraphernalia inside the break room. Mr. Fitzmaurice stated that Northwest Administrators has consistently permitted its employees to sell items for charity and other causes inside the break room. There is no evidence that the employer is involved in the sale of such items other than permitting its employees to do so in the break room. While the Election Officer has repeatedly held that employer contributions are strictly prohibited by the Rules, this activity does not appear to fall within that prohibition.
As set forth in Section I, above, the Rules at Article VIII, Section 11(d) only permits campaigning by non-employees inside an employer’s facility if it is established that there is a pre-existing right to do so. Section 11(d) specifically states:
[N]o restrictions shall be placed upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature . . . on employer . . . premises. Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.
Here, it appears that there was a pre-existing right to engage in such solicitations in the break room. Therefore, the sale of the Hoffa paraphernalia by the employees did not violate the Rules so long as Northwest Administrators had not barred other candidates from selling such merchandise on a nondiscriminatory basis.
For the foregoing reasons, the protest is RESOLVED as to access to the bulletin board; and DENIED as to the defacement of the campaign literature and as to the improper employer contribution.
Kim A. Shanahan
October 5, 1998
Page 1
Although that part of the protest addressing the defacement of campaign literature has been denied, the Election Officer finds that defacement of campaign literature may be avoided if members are made more aware of the Rules in this regard. Therefore, the Election Officer orders Northwest Administrators to post the attached “Notice of IBT Members Employed by Northwest Administrators” on the bulletin board on the break room. This notice will inform members and other persons of the right to post campaign material on local union bulletin boards and "that the removal, defacement or destruction of campaign literature . . . of IBT members constitutes a most serious violation of the Rules . . ." This Notice should be posted by October 13 and remain posted through December 3 beside the other Notice ordered in this decision. In so doing, the Election Officer is not finding that Northwest Administrators or or any employee member or individual who works there engaged in misconduct.
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,
Michael G. Cherkasky
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Paige Keys, Adjunct Regional Coordinator
NOTICE TO IBT MEMBERS EMPLOYED
AT NORTHWEST ADMINISTRATORS FROM
MICHAEL G. CHERKASKY, ELECTION OFFICER
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 union bulletin boards since such bulletin boards have been used in the past for similar postings.
The Election Officer has found that properly posted campaign materials have been defaced by a person or persons unknown.
No member is to interfere with the posting of campaign material. Members shall not remove or deface any campaign material posted on the bulletin boards. Any such activity is a serious violation of the Election Rules.
Any protest you may have regarding your rights to engage in campaign activities or interference with those rights under the Rules should be filed with the Election Officer within the time period prescribed by the Rules.
_________________________
Michael G. Cherkasky
Election Officer
This is an official notice and must remain posted through
December 3, 1998, and must not be altered, defaced or covered by any other material.