November 12, 1998
VIA FACSIMILE AND UPS OVERNIGHT
Howard W. Rhinier
November 12, 1998
Page 1
Howard W. Rhinier
853 Olde Hickory Road
Lancaster, PA XXX-XX-XXXX
Harold Branche, Sec.-Treas.
Teamsters Local Union 771
1025 N. Duke Street
Lancaster, PA 17602
Dan Dougherty
Operations Manager
Miller & Hartman Inc.
P.O. Box 81784
Lancaster, PA XXX-XX-XXXX
Bob Shangraw, Vice-President
Miller & Hartman Inc.
P.O. Box 81784
Lancaster, PA XXX-XX-XXXX
Greg Gerhart, Supervisor
Miller & Hartman Inc.
P.O. Box 81784
Lancaster, PA XXX-XX-XXXX
Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
Arthur Z. Schwartz, Esq.
Kennedy, Schwartz & Cure
113 University Place
New York, NY 10003
Howard W. Rhinier
November 12, 1998
Page 1
Re: Election Office Case No. PR-328-LU771-EOH
Gentlepersons:
Howard Rhinier, a member of Local Union 771, filed a protest alleging that Miller & Hartman, Inc. (“M&H”) prohibited the protester and other members from campaigning in the employee parking lot and in the area next to truck bay 14 where an established pre-existing right to campaign exists based on past practice.
This protest was investigated by Protest Chief Mary E. Leary.
Howard W. Rhinier
November 12, 1998
Page 1
On October 7, 1998, the protester and IBT members, Jim Cox, Don Kahl and Al Watrous, arrived at M & H in Lancaster, Pennsylvania at approximately 4:00 p.m. to campaign for the Rhinier-Cox team in the Local Union 771 officer elections and for the Tom Leedham “Rank and File Power” Slate in the International Officer Rerun Election. The group distributed leaflets, bumper stickers and buttons in support of candidates in both the local and International officer elections in the employee parking lot and by truck bay 14. They were advised by Supervisor Craig Gerhart that they would have to leave. Mr. Gerhart told them that Harold Branche, secretary-treasurer of Local Union 771, told Operations Manager Dan Dougherty that they were not allowed “to be there [at “M & H”] campaigning because local nominations had not yet been held.” The protester told Mr. Gerhart, “I’m not listening to their messenger boy, tell them to come out and talk to us. Tom Leedham and we have the right to be here.” Mr. Gerhart then went inside the facility.
Approximately ten minutes later, Mr. Dougherty and Bob Shangraw, M & H vice-president, returned to the parking lot by the employee break area. The protester and the other campaigners were informed that Mr. Dougherty had spoken with Mr. Branche who said they could not be there because nominations for Local Union 771 officers had not been held. Mr. Cox, one of the campaigners, explained that they had a right to be there because he had filed a protest about this in 1991. Messrs. Rhinier and Cox also stated that they were campaigning for Mr. Leedham and that they would file a complaint with the Election Office. Messrs. Dougherty and Shangraw told the campaigners they were trespassing and had to leave or else the police would be called. Then Messrs. Dougherty and Shangraw returned to the facility presumably to telephone the police, and Messrs. Rhinier, Cox and the other campaigners left the premises.
Messrs. Rhinier and Cox stated they have campaigned in the area near truck bay 14, which is immediately adjacent to the stairs where employees enter the facility, during the 1991 and 1995-1996 International Officer and Delegate Elections. Typically, a trailer is parked at truck bay 14 in which damaged goods are recouped and moved only when full to ship to auction.
During the investigation, Messrs. Rhinier and Cox also raised the issue that they had posted campaign leaflets for candidates in both the local union election and the International Officers Rerun Election which had consistently been removed from the union bulletin board. They stated that during the 1991 and 1995-1996 elections, they posted campaign literature for Ron Carey and literature from the Teamsters for a Democratic Union on the bulletin boards including the official union bulletin board. Mr. Dougherty stated that Mr. Branche said everything could be removed from the union bulletin board except things that were personally authorized by Mr. Branche. Local Union 771 member Tim Reese, an employee at M & H, stated that he saw Mr. Dougherty removing campaign literature for the local union election from the union bulletin board.
Howard W. Rhinier
November 12, 1998
Page 1
The investigation established that the bulletin boards including the union bulletin board contain postings for car washes, the sale of candy and submarine sandwiches for school children and contained campaign materials during the 1991 and 1995-1996 International Officer Elections. The Election Officer finds that there was a pre-existing right to post campaign materials on the bulletin boards including the official union bulletin board based on past practice. However, the evidence failed to establish that the materials which Mr. Dougherty was seen removing from the bulletin board related to the International Officer Rerun Election.
Protest Chief Leary spoke with Howard Branche during the investigation. Mr. Branche contends that he did receive a call from Mr. Dougherty regarding the bulletin board and that Mr. Dougherty stated that the Rhinier and Cox team are out here handing out literature. Mr. Branche states that he said, “ I have no problem with that. They have a right to be out there,” and that he informed Mr. Dougherty that so do the other candidates.
Based on the details given by Mr. Dougherty regarding the discussions with Mr. Branche, i.e. that nominations for local elections had not been held yet and that they could remove literature from the bulletin board unless he had expressly authorized its posting along with Mr. Dougherty’s admission that he initiated the telephone calls which resulted in the denial of access to the campaigners, the Protest Chief does not credit Mr. Branche’s version of the conversation between Mr. Branche and Mr. Dougherty.
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. While “presumptively available,” this right is not without limitations. It is not available to any employee on working time and candidates and their supporters cannot solicit or campaign to employees who are on working time. It is also restricted to campaigning that will not materially interfere with an employer’s normal business activities. An employer may require reasonable identification.
The Protest Chief discussed the denial of access with counsel for M & H. M & H now agrees that union members can campaign in the employee parking lot, the outdoor lunch area, the motorcycle parking lot and near the stairs by truck bay 14 at its Lancaster, PA facility for the duration of the International Officer Rerun Election. However, M & H reserves the right to deny access to areas behind other truck bays for purposes of campaigning as it tends to block traffic and thus materially interferes with its business operations. In entering into this agreement, M & H does not concede that there is a pre-existing right to campaign in the area in which they have agreed to grant access during the duration of this rerun election and does not waive any rights with regard to access issues by resolving this protest.
Accordingly, the Election Officer is satisfied that the protest has been RESOLVED as to M & H ’s granting of access to the employee parking lots, the outdoor lunch area, the motorcycle parking lots and the area near truck bay 14 for the purposes of campaigning in the International Officer Rerun Election; DENIES the protest as to the allegation that Mr. Dougherty removed campaign material from the bulletin boards; and GRANTS the protest as to the actions of
Mr. Branche in advising M & H to remove campaign literature from the bulletin boards and interfering with the rights of members to campaign.
Howard W. Rhinier
November 12, 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.
Accordingly, the Election Officer orders the following:
1. Howard Branche, secretary-treasurer of Local Union 771, shall immediately cease and desist from interfering with members’ campaign rights.
2. By November 16, 1998, Mr. Branche shall sign the attached “Notice to Local Union 771 Members Employed by Miller & Hartman” and post copies of the Notice on all union and general purpose bulletin boards at Miller & Hartman.
3. By November 16, 1998, Mr. Branche shall file an affidavit with the Election Officer detailing the compliance with this Order and attaching a copy of the signed Notice.
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
NOTICE TO LOCAL UNION 771 MEMBERS
EMPLOYED BY MILLER & HARTMAN
In a recent decision, the Election Officer determined that Harold Branche, Secretary-Treasurer of Local Union 771, violated the Election Rules by improperly restricting the rights of Teamster members to campaign at Miller & Hartman for candidates in the International Officer Rerun Election. I have been ordered to immediately cease and desist from interfering with members’ campaign rights.
Dated:________ ___________________
Howard Branche
Secretary-Treasurer
Local Union 771
This is an official notice that must remain posted until December 3, 1998, and must not be defaced or altered in any manner or be covered with any other material.
Approved by Michael G. Cherkasky, IBT Election Officer