October 14, 1998
VIA FIRST CLASS MAIL
Ralph Ekelman
October 14, 1998
Page 1
Ralph Ekelman
13338 Foxrun
Victorville, CA 92392
Cindy Crosby, Line Haul
Operations Manager
Yellow Freight System Inc.
2951 Lenwood Road
Barstow, CA 92311
Daniel L. Hornbeck, Esq.
Yellow Freight
P.O. Box 7563
10990 Roe Avenue
Overland Pk, KS 66207
Arthur Z. Schwartz, Esq.
Kennedy, Schwartz & Cure
113 University Place
New York, NY 10003
Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
Ralph Ekelman
October 14, 1998
Page 1
Re: Election Office Case No. PR-314-LU63-EOH
Gentlemen:
Ralph Ekelman, a member of Local Union 63, filed a protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”). The protester alleged that “for months,” campaign literature regularly posted by him on two general purpose bulletin boards located in his worksite has consistently been removed.
Mr. Ekelman does not know who has been removing this material, but asks “can you or anyone do anything to stop this from occurring (sic)?”
The protest was investigated by Election Office Counsel David S. Paull.
The Rules at Article VIII, Section 11(d) provide that:
Ralph Ekelman
October 14, 1998
Page 1
[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.
An established past practice is “one source of preexisting rights.” Stephenson, P-1204-LU763-PNW (December 2, 1996); In re Hall, 90 - Elec. App. - 1 (KC) (October 4, 1990); Brinkman, P-151-LU305-PNW (September 18, 1995), aff’d, 95 - Elec. App. - 21 (KC) (October 10, 1995). Where a pre-existing right is determined to exist, it is specifically protected by the Rules at Article VIII, Section 11(d), which prohibits any change or cutback during the election process. Jesses, P-183-LU612-SEC (February 5, 1991) (an employer cannot change its practice with respect to parking lot access). See also, Furst, PR-168-LU1145-NCE (August 25, 1998).
The bulletin boards which are the focus of this protest are located in two non-smoking break rooms within the Break/Bulk warehouse operated by Yellow Freight in Barstow, California.[1] There is no dispute that these bulletin boards are general purpose and have been regularly used by employees to post campaign literature during the current election cycle. There is also credible evidence that at least some of the material posted by the protester has been removed. There is, however, no evidence identifying a culprit.
The Election Officer concludes that there is a pre-existing right to use the general purpose bulletin boards located in the non-smoking breakrooms to post campaign literature. Removal of any properly posted campaign literature, including the campaign material posted on these Yellow Freight boards, is a violation of the Rules at Article VIII, Section 11(d). Shanahan, PR-209-LU856-PNW (October 5, 1998). Unfortunately, the perpetrator or perpetrators cannot be identified.
Accordingly, the protest must be DENIED.
Although the protest is denied, the Election Officer finds that the improper removal of correctly posted campaign literature are reduced when members are made more aware of the Rules which apply. Consequently, the Election Officer orders Yellow Freight to post the attached “Notice of IBT Members Employed by Yellow Freight At The Barstow Break/Bulk Warehouse” on the bulletin boards involved in this protest. 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 20, 1998 and remain posted through
Ralph Ekelman
October 14, 1998
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December 3, 1998. In issuing this order, the Election Officer finds that there is no evidence to support the conclusion that Yellow Freight or any employee member or individual who works for Yellow Freight at its Barstow facility engaged in any conduct relating to the allegations of the protest which violates the Rules.
An order of the Election Officer, unless otherwise stayed, takes immediate effect immediately. 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
NOTICE TO IBT MEMBERS EMPLOYED BY YELLOW FREIGHT AT THE BARSTOW BREAK/BULK WAREHOUSE
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 any bulletin board within the facility where similar postings have been permitted in the past.
The Election Officer has found that properly posted campaign materials have been removed from the “Teamster” general purpose bulletin boards 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.
[1] The evidence discloses that other bulletin boards are located in each of these breakrooms. However, these bulletin boards are not general purpose, but are limited to official notices.