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Office of the Election Supervisor for the International Brotherhood of Teamsters

October 1, 1998




Erik Jensen

October 1, 1998

Page 1


Erik Jensen

4345 11th Avenue, S.

Minneapolis, MN 55407


United Parcel Service

3312 NE Broadway

Minneapolis, MN 55413


Paul Alan Levy, Esq.

Public Citizen Litigation


1600 20th Street, N.W.

Washington, D.C.  20009


Tom Leedham Campaign Office

P.P. Box 15877

Washington, D.C.  20003

John McCormick

6574 O’Hare Street

Portage, IN 46368


Gary M. Tocci, Esq.

Schnader, Harrison, Segal & Lewis

1600 Market Street

Philadelphia, PA 19103


Arthur Z. Schwartz, Esq.

Kennedy, Schwartz & Cure

113 University Place

New York, NY 10003



Erik Jensen

October 1, 1998

Page 1


Re: Election Office Case No. PR-211-LU320-NCE


Erik Jensen, a member of Local Union 320, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 International Union Delegate and Officer Election (“Rules”) alleging that United Parcel Service (“UPS”) violated the Rules by interfering with his rights to campaign outside its Minneapolis facility on a sidewalk leading to two employee parking lots.  The protester alleges that on August 6, 1998, UPS management prevented him, Doug McGilp, a member of Local Union 1145, general secretary-treasurer candidate John McCormick, and Jim Tadusiak, another Leedham supporter, from campaigning on the sidewalk between the guard shack and the stairs that lead to one of the parking lots.  The protester contends that a pre-existing right to campaign on this portion of the sidewalk has been established since members and candidates have used this area during both the 1991 and 1996 International union officer elections without any incidents or problems. 


The protester further alleges that he and Mr. McGilp were arrested by the police because UPS contended that as non-UPS employees, the protester and Mr. McGilp had no right to campaign on UPS property.

Erik Jensen

October 1, 1998

Page 1



UPS initially responded that it prohibits campaigning on the western portion of the sidewalk between the guard shack and the parking lot stairs in order to prevent congestion in the area by the guard shack and terminal.  UPS asserted that campaigning has only been permitted on the other side of the stairs, i.e., between the stairs and the curb of the public street.  UPS also denied any knowledge of campaigning along the sidewalk between the guard shack and the stairs prior to this incident on August 6, 1998.


The protest was investigated by Regional Coordinator Judith E. Kuhn.


The UPS Broadway street hub in Minneapolis has two employee parking lots.  The first lot is located across a public street from the guard shack.  The second is on a hill on the same side of the street as the guard shack.  The hill lot is reached by a short flight of stairs.  A long sidewalk extends from the guard shack, past the stairs to the hill lot, and to the crosswalk of the public street.  The guard shack is at the west end, and the crosswalk leading to the lot across the public street is on the east end.  The protester contends that the sidewalk between the guard shack and the stairs is far more advantageous since it affords contact with employees using both lots, while the location east of the stairs guarantees contact only with employees using the lot across the street.


Around 3:00 p.m., the protester and other Leedham supporters began campaigning on the sidewalk to the west of the stairs, between the guard shack and the stairs.   Shortly thereafter, Ken Ruud, a UPS Loss Prevention Manager, advised the group of campaigners that they would have to move either to one of the parking lots or further east near the curb of the street.  The protester and Mr. McGilp refused to move, and a police officer was summoned and issued citations for trespass to both.  When Mr. McGilp still refused to move, he was handcuffed and placed in the squad car.  Mr. McGilp was released from the officer’s custody after agreeing to leave the property. 



The Rules at Article VIII, Section 11(d) provide as follows:


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


Erik Jensen

October 1, 1998

Page 1


The Rules at Article VIII, Section 11(a) protect the rights of candidates and members to campaign on employer premises during lunch hours or breaks.  No other campaign activities may take place on employer premises unless authorized by Article VIII, Section 11(d), which first requires that a “pre-existing right” be established.  The Election Officer has recognized that past practice is a relevant factor in determining whether a “preexisting right” exists for purposes of this section.  In re Hall, 90 - Elec. App. - 1 (October 4, 1990); Brinkman, P-151-LU305-PNW (September 18, 1995), aff’d, 95 - Elec. App. - 21 (KC) (October 10, 1995).


When the “pre-existing right” is determined to exist, Article VIII, Section 11(d) prevents modification of the practice during the election process.  Jesses, P-183-LU612-SEC (February 5, 1991) (“the employer cannot now change its practice” with respect to parking lot access); Camarata, P-709-LU299-MGN (April 10, 1991); Benson, P-431-LU104-RMT (undated).   Furthermore, the Rules, as quoted above, specifically require that access rights be applied without discrimination.


The Regional Coordinator discussed this matter with Gary M. Tocci, counsel for UPS.  In a letter dated September 21, 1998, UPS has now agreed to the following:


[t]o allow campaign activity for the international officer election all along the walkway leading from the street to the guard shack at the Minneapolis Broadway hub.  This campaign activity, which of course must also conform to pertinent rules established by the Election Office, will be permitted only for the duration of the period leadng to the international officer election (for which ballots are scheduled to be counted beginning December 3, 1998, (“Election Period”)).  Please note that UPS’s position in this respect is in no way precedent setting, and applies only to election activities within the scope of IBT Election Office’s jurisdiction.  Once the Election Period has expired, UPS will resume its longstanding past practice regarding dissemination of information at the location in question.


The Election Officer finds that UPS’ proposal satisfies the purposes of Article VIII, Section 11(d) and (e).


The Election Officer has confirmed with the Minneapolis City Attorney that the citations issued to the protester and Mr. McGilp have been dismissed.


Accordingly, the Election Officer is satisfied that the protest has been RESOLVED.


Erik Jensen

October 1, 1998

Page 1


Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) 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, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.






Michael G. Cherkasky

Election Officer



cc:              Kenneth Conboy, Election Appeals Master

Judith E. Kuhn, Regional Coordinator