November 18, 1998
VIA FIRST CLASS MAIL
Charles R. Engel
November 18, 1998
Page 1
Charles R. Engel
71 Ball Road
Walnut Creek, CA 94596
Marty Frates, Business Rep.
Teamsters Local Union 70
70 Hegenberger Road
Oakland, CA 94621
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
Chuck Mack, Sec.-Treas.
Teamsters Local Union 70
70 Hegenberger Road
Oakland, CA 94621
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Charles R. Engel
November 18, 1998
Page 1
Re: Election Office Case No. PR-303-LU70-EOH
Gentlemen:
Charles Engel, a member of Local Union 78, 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 Marty Frates, a business agent for Local Union 70. The protester alleges that on September 21, 1998, Mr. Frates was observed posting a Hoffa Campaign flyer on glass-enclosed union bulletin boards where only official union business is permitted to be posted. The protester observed Mr. Frates on this occasion wearing a Hoffa hat which the protester contends is in violation of the Rules.
Mr. Frates admits posting some flyers on top of the glass enclosed bulletin boards but denies posting inside the locked boards.
The protest was investigated by Deputy Election Officer Benetta M. Mansfield.
Charles R. Engel
November 18, 1998
Page 1
The protester works in the Oakland hub for United Parcel Service (“UPS”). The union has bulletin boards only for official union postings and the union has glassed in, locked bulletin boards for official union postings. UPS has no general purpose bulletin boards and does not permit the posting of campaign literature on its bulletin boards. The union has never permitted the posting of campaign literature on its bulletin boards. There are three or four different centers in the Oakland hub. The protester contends that on September 21, 1998, Mr. Frates posted a flyer for “Breakfast with Jim Hoffa” on Sunday, October 4, 1998, behind the locked glass-enclosed union bulletin boards at three different locations at the Oakland hub, and posted the same flyer on top of the glass on the bulletin board outside of the car wash. The protester did not actually see Mr. Frates post the flyer but contends that the flyer appeared shortly after Mr. Frates was at the hub.
Jim Nolan, a feeder steward, told the investigator that on September 21, the protester pointed out the flyer in the glass enclosed locked union bulletin board to him. Mr. Nolan stated it should not have been posted there, unlocked the glass and removed the flyer. He states it was posted for about an hour. Mr. Nolan never saw Mr. Frates and does not know who posted it. Mr. Nolan states that, the shop stewards, the company and he have keys to the bulletin boards. Mr. Nolan thought Mr. Frates did not have a key.
Mr. Frates admits posting some of the flyers on top of the glass outside the glass enclosed bulletin boards. He denies posting any flyers inside the bulletin boards but states that he does have keys to the bulletin boards. Mr. Frates states that he does not have any idea who would have posted the flyers under the glass on other bulletin boards. Mr. Frates admits that the company does not permit any such postings, but states that people post them anyway and they are immediately torn down.
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 use employer or Union bulletin boards for campaign publicity.” If there is no pre-existing right, posting campaign literature is in violation of the Rules.
The witnesses in this case agree that there was no pre-existing right to post campaign literature. Mr. Frates admits to posting the flyers. Although he does not admit to posting the flyers inside the glass-enclosed bulletin boards, it is apparent they were posted inside some of the boards.
There is no evidence that Mr. Frates was at the Oakland hub to meet with employers. Therefore, wearing a Hoffa hat did not violate the Rules. See Advisory on Wearing of Campaign Buttons and Other Emblems, (September 20, 1995).
Accordingly, the protest is GRANTED.
Charles R. Engel
November 18, 1998
Page 1
When the Election Officer determines that the Rules have been violated, he “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 flyers were only up for a very short time. Indeed, one witness told the investigator that they were up for less than an hour. In these circumstances, the Election Officer orders Mr. Frates to cease and desist from posting campaign literature at the Oakland hub.
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 (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.
Sincerely,
Michael G. Cherkasky
Election Officer
cc: Kenneth Conboy, Election Appeals Master