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Protecting citizens' rights in the courts
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  UNITED STATES OF AMERICA,
v. 88 Civ. 4486 (DNE) INTERNATIONAL BROTHERHOOD OF
Teamsters for a Democratic Union ("TDU") applauds the out-going Election Officer for her effort in producing the Rules for the 1995-1996 Delegate and Officer Elections. The Rules are well-constructed on the foundation built by the first Election Officer, Michael Holland, Esquire, as amended by order of this Court in 1989, and they contain a number of improvements whose need was either demonstrated by the experience under the former Rules, or created by intervening decisions. In general, they will make it possible for the International Brotherhood of Teamsters, under the watchful eye of the Court's officers, to conduct a fair election in which all sides, both the reform administration that now holds international office, and the Old Guard who have retained control of most of the regional bodies and a majority of the local unions, will have a fair chance to compete for office on a level playing field. We submit this memorandum for two reasons. First, we enthusiastically endorse the specific provision in the Rules for campaigners to obtain access to nonwork areas on the perimeter of the work-place; we explain why we think the Rule is so important, and why we consider it consistent with the law. Second, we have substantial reservations about the change in the Rules under which Teamster members who are employers are entirely excluded from the campaign process. We explain how this change creates a number of practical problems for those trying to live within the Rules, and call the Court's attention to some legal constraints that the Election Officer may have overlooked. I. The Election Rules Properly Give Union Members a Limited Right to Enter a Clearly Defined Portion of the Non-work Premises of Teamster Employers to Appeal to Fellow Members for Support in the Election. As proposed by the Election Officer, Article VIII, Section 11(d) of the Election Rules would codify a limited version of the employer access rules applied by the Election Officer under the Election Rules during the 1990-1991 election, and repeatedly approved by this Court and accepted on review by the Court of Appeals. During the last election, the Election Officer generally held that members and candidates were entitled to obtain access to non-work areas for purposes of disseminating literature and soliciting support for candidacies. Under the newly proposed rules, members from the same local union as delegate candidates, and members from within the area within which officer candidates are running for election, would have access rights to campaign in one small portion of an employer's non-work areas -- the area where employees park their cars when they come to work. The Rule is based on an exercise of the Court's All-Writs Act authority, which was approved by this Court and upheld by the Court of Appeals in United States v. Teamsters (Yellow Freight), 948 F.2d 98, vacated as moot, 113 S. Ct. 31 (1992). Although Yellow Freight itself was ultimately vacated under the Munsingwear doctrine, the Court of Appeals has in other cases upheld the Court's authority under the All-Writs Act to act as an emergency tribunal to enforce members' rights against employers under the National Labor Relations Act ("NLRA"). E.g., United States v. Teamsters (Sikorski), 955 F.2d 171 (2d Cir. 1992); ; United States v. Teamsters (Star Market), 954 F.2d 801 (2d Cir. 1992). Some employers contend, however, that even this limited version of access rights for intra-union campaigners contravenes the Supreme Court's decision in Lechmere v. NLRB, 502 U.S. 527 (1992). According to these employers, Lechmere holds that no persons may enter a company's premises to exercise the section 7 right to communicate with workers employed there unless those persons are also employed at the same company where they are seeking to communicate, or unless it is proved that there is no reasonable, but non-trespassory, alternate means of communicating the message. In this memorandum, we argue that Lechmere's analysis does not apply here because, unlike the non-employee union organizers who were soliciting support from non-union employees or customers, here the campaigners are seeking to communicate with employees who are already represented by a union that not only has a significant connection to those employees, but which itself has far more extensive rights of access for the performance of union functions than the Rules would confer upon intra-union campaigners. We also argue that, particularly given the different context, the lack of practical alternative means of securing access to the employees, apart from entry onto a limited portion of employers' premises, warrants affirmance of section 11(d) even if Lechmere does apply. The Supreme Court's decision in Lechmere arose out of a dispute between a union that was hoping to secure collective bargaining rights on behalf of an employer, none of whose employees belonged to the union. The union sought to send organizers onto Lechmere's premises to inform the Lechmere employees of the value of union representation; the employer asserted its right to control its property by denying all non-employees the right to solicit for causes or disseminate literature advancing such causes. In previous decisions, the Supreme Court distinguished between the rights of a company's own employees and the rights of nonemployee organizers who are trying to encourage workers to vote for union representation. Although employees are generally on the premises for the purpose of working, they have a substantial interest in communicating with each other about union matters which overcomes the employer's property rights, and consequently they are generally authorized to solicit fellow employees in pursuit of union activity and to distribute written materials in that regard in any non-work areas of the employer's premises, on nonwork time. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). Union organizers who are trying to persuade employees to join the union and confer bargaining powers upon it, by contrast, do not have any inherent right to enter the employer's premises, and consequently they may do so only when there is no reasonable alternative means for them to contact the employees. NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956). In Lechmere, the Court reaffirmed the vitality of the Babcock & Wilcox rule as it applied to efforts by an outside union trying to organize the employees, while distinguishing it from the rights of employees to discuss self-organization among themselves. 502 U.S. at 533, 537. Accordingly, it held, the interests of such non-employee organizers are adequately accommodated by a rule allowing access only when, because of the location of the workplace and the living quarters of employees, nontrespassory means of communicating with the employees cannot be reasonably effective. In several cases since Lechmere, the Board has applied the Lechmere analysis to bar access in a number of circumstances where a union that had no legal authority to speak for or with employees of a particular employer has sought to gain access to that employer's property in order to advance the organizational interests of its members. Thus, for example, where a union seeks to inform customers that a particular employer does not meet area standards, or where the union seeks to exert secondary pressure on behalf of its members to the disadvantage of a company's current employees, the union must still carry the full Lechmere/Babcock & Wilcox burden of showing inadequacy of any other means of reaching the employees. Oakland Mall, 316 NLRB No. 173, 149 LRRM 1017 (1995); Leslie Homes, 316 NLRB No. 29, 148 LRRM 1105 (1995). But the NLRB emphasized that this rule applied because "the Union represents no employees who have a present connection to any employer with an interest in the property," Oakland Mall, supra, 149 LRRM at 1020 n.13, and acknowledged that a different balance might be struck where the activity was conducted, for example, by employees with a more direct connection to the property instead of by nonemployee union agents. Leslie Homes, 148 LRRM at 1110 n.12, citing Hudgens v. NLRB, 424 U.S. 507 (1976). The Board has also repeatedly held that the rule of Lechmere and Babcock & Wilcox does not bar access by nonemployee organizers where the employer has discriminated against union messages by allowing other kinds of messages to be communicated by solicitation or leafleting. Cleveland Real Estate Partners, 316 NLRB No. 31, 149 LRRM 1037 (1995); Riesbeck Food Markets, 315 NLRB No. 134, 148 LRRM 1017, 1018 (1994). Both of these reasons support the Election Officer's finding that Lechmere does not invalidate the proposed Election Rule here. First, the solicitation and distribution that the Rule protects is not mere action by nonemployee union organizers with no legitimate connection to the employer or to the premises. Quite to the contrary, here it is members of the union that represents the employees of the employer who seek to communicate with those employees. By selecting the union as their collective bargaining representative, the employees conferred on the union a greater legitimacy in entering the premises than a stranger union would have when it is first trying to secure the members' designation as their representative.(1) Indeed, the NLRB has recognized that, as the representative of employees, union representatives have a limited right of access to an employer's premises, which they may exercise so long as they do not disrupt the employer's business, where necessary to perform their duties as collective bargaining representatives. E.g., NLRB v. National Broadcasting Co., 798 F.2d 75, 77-78 (2d Cir. 1986); Holyoke Water & Power Co., 273 NLRB 168, enf'd on other grounds, 778 F.2d 49 (1st Cir. 1985); NLRB v. Cities Svc. Oil Co., 122 F.2d 149, 152 (2d Cir. 1941) (per Hand, Hand, and Frank, JJ.). In recognition of this right, union contracts, in the Teamsters union as elsewhere, customarily allow the union to designate representatives who will enjoy a right of access to the employer's premises for the purpose of communicating with employees about union business. The Consent Decree, as properly construed by this Court and by the Court of Appeals, makes clear that the process of choosing new leaders to govern the Teamsters union is an aspect of union business of the highest importance.(2) In light of that determination, the Election Officer properly decided that union member-employees who are campaigning for convention delegate in a particular local, and member-employees who are campaigning for or supporting candidates for international union office, should be accorded at least the limited right of access to a portion of every employer's premises that is, by definition, the least likely to cause any disruption of the employer's business. The second reason why Lechmere standards for determining the existence of reasonable alternative means of communication do not apply to the Election Rules is related to the first, because it follows from the nearly universal provision, by contract or by past practice, for union representatives to obtain access to employers' premises for reasons relating to union business. It is commonplace that, in the course of transacting routine union business, union officers often have conversations with employees about the union's political affairs, and express their views about current electoral campaigns, including their own and any international candidates of whom they happen to approve or disapprove. This form of campaigning "incidental to union business" is so pervasive, and yet so difficult to regulate, that the Labor Department has declared that it is neither a misuse of union funds to pay for the time of the officer, nor a misuse of the employer's assets (i.e., its right to exclude outsiders from its property), for such officers to campaign incidental to union business. 29 C.F.R. §§ 452.76, 452.78(a). The Election Rules also recognize this exception. Article XII, Section 1(b)(4). The Election Rules recognize that such campaigning is inevitable, and that employers' toleration of such campaigning has the effect of discriminating against candidates to whom incumbent union employees are opposed, even if the discrimination is effectively compelled by the union's right of access. Given this form of discrimination, the Election Officer has sought to "level the playing field" by granting a limited right of access to all employees, and because Lechmere does not apply at all in cases of discrimination, it follows that the proposed Rule does not violate the Lechmere principle. Indeed, because the "incidental" campaigning does not occur in parking lots, but rather in break rooms, on loading docks and the like, the Election Officer would have been justified in requiring employers to allow comparable access to all campaigners. However, in the apparent interest of a rule that is simple to apply and does not require extensive factual development (unless the employer attempts to take refuge in the exception for cases where campaigning on premises is not needed to serve the purposes of the Consent Decree), the Election Officer has adopted a far more limited right which we urge the Court to adopt.(3) But even if the Court determines, contrary to the analysis just presented, that Lechmere forbids the adoption of an Election Rule granting presumptive access to an employer's premises for campaign purposes absent a demonstration that there are no reasonable alternative means of reaching the union electorate, we believe that the proposed Rule should be sustained. In our view, members' exercise of this right formed a crucial part of the campaign in the 1990-1991 election, and it will be equally important in the upcoming election. This is so for several reasons. First, regardless of the impact of such campaigning on actual voter choices, campaigning at work sites is important because it increases the visibility of the election among the membership and thus has a tendency to increase membership turnout in the election. In our view, the key element of the RICO settlement is its effort to turn the union back to the membership, by encouraging rank-and-file participation in the governance of the union. In the years before the Consent Decree was issued, rank-and-file participation in the union was abysmal in most areas, and this was one factor that fostered the atmosphere of domination by organized crime. The last international election raised the visibility of intra-union governance a great deal, but even then only 29% of the membership voted. Not only is this low turnout contrary to the objectives of the Consent Decree, but it has been used to discredit the political processes that the Decree has fostered. In our view, personal contact between delegate candidates (or their supporters) and the members at places of work has far more potential for stirring intra-union debate than printing copy in union magazines, and delivering pieces of mail through the use of union mailing lists, can possibly do. The second reason why worksite campaigning is so important is to level the playing field among the contenders in the elections. In the usual course, the officials of a local union run as a slate for delegate positions, in opposition to rank-and-file challengers, at least some of whom run as a slate. And union officials, particularly in locals tainted by the sort of corruption that the Consent Decree is intended to remedy, often have cozy relationships with employers, who may have benefitted from corruption or who, at least, may see it as contrary to their interests for their current bargaining partners to be replaced. Accordingly, in many instances, rank-and-file campaigners will be unable to bring their messages to the worksite unless the Election Rules, backed by the active enforcement efforts of the Election Officer, guarantee their right to do so. Contact at the jobsite is even more important in the Teamsters union than in most other unions. Teamster members, especially in the trucking industry, tend to work irregular hours and so cannot be reached by other means. Take, for example, over-the-road drivers at Yellow Freight, Roadway Express, or Consolidated Freightways (three employers who alone have 55,000 Teamsters working for them). Road drivers come to work by car and leave in a truck, not returning home, in some instances, for several days. It is almost impossible to contact them while they are on the road. Some stay in motels on the road (where a large fraction of the people may be non-union, and may not even be truck-drivers; and, in any event, even if campaigners could go there the drivers staying there would be from completely different locals). Others sleep in a "sleeper" compartment behind the truck cab. In addition, trucking employees are often re-domiciled by their employers; given the dislocations in the trucking industry for the last fifteen years, they often move from one trucking company to another. For that reason, and because they may get home only once or twice a week in many cases, they have far less incentive to live within a few miles of the trucking terminal than employees in other occupations do. Thus, drivers may live many miles from their place of employment, such as in a rural area, although their terminal and union hall are in the city, and even in another metropolitan area entirely. In these circumstances, it is simply not possible for campaigners to visit members at their homes, or to reach them by media advertisements, as some decisions suggest might be possible in the context of organizing campaigns. Thus, reaching them at a trucking hub becomes all the more important, in these circumstances.(4) Even if candidates for delegate had access to the union mailing list, which contains the names and addresses of members, that would not be equivalent to having access to members' telephone numbers, given the large fraction of all persons who have unlisted telephone numbers these days. And members' addresses are often either post office boxes or rural delivery numbers, which makes it impossible to conduct home visits, even assuming that such visits were economically feasible given the resources of most candidates. Moreover, unlike the situation in an union organizing drive (where the union receives a list of employees and addresses under Excelsior Underwear, 156 NLRB 1236 (1966)), and in the International Officer election (accredited candidates get the list under Article VIII, Section 3), candidates for delegate in the various local unions are not entitled to obtain union mailing lists from the Election Officer. It is true that they can have mailings done, provided they have sufficient funds, but that is all. And even that is quite expensive. The typical local union has 3000 members. A mailing to those members with just one letter from the candidate for delegate would cost at least $1500, when both mailing and printing costs are considered. This is a high cost for the individual union member, and multiple contacts are required in a campaign like this, particularly when a candidate is running against incumbents who have the opportunity for repeated contacts on the job in which they can show their concern for the members by simply doing their jobs at union expense. An additional consideration is that the position of delegate is a non-paying one, so that the rewards of winning such an election are entirely psychic and political, rather than economic. Nor can a successful delegate candidate provide concrete benefits for constituents who form the pool of potential contributors, as an incumbent union officer can do. Thus, a candidate for such a position is going to find it hard to raise a large campaign treasury from fellow members, or to justify financing such costs from his or her family bank account. Such candidates have nothing like the financial incentive that unions have for organizing new workers -- the prospect of additional dues or initiation fee income, not to speak of relieving the pressure of non-union employers on organized employers -- that some use to justify relegating unions to expensive alternative means of communication. Moreover, although we do not discount the importance of the right to do mailings to the electorate, such mailings are far less effective than personal contact, which gives a candidate (or other campaigner) the opportunity to ascertain the interests and concerns of each potential voter, and to respond to those concerns in a manner that persuades the member to provide his or her vote. A union may be perceived impersonally, and it is concomitantly easier for a union that is campaigning in an NLRB certification election to present its arguments in writing, without personal contact; area standards or other kinds of union appeals to the consuming public are even more easily reduced to a slogan on a picket sign. That is not true for a candidate who is running for office, because many voters want to be able to assess the candidate's character and ability in person. Accordingly, both for reasons of effectiveness and for reasons of economics, the one form of campaigning that is most likely to be used by delegate candidates and their supporters is distribution and solicitation at the worksite. In the 1990-1991 election, candidates who did not hold union office often found it very important to have access to employer parking lots. The Election Rules were construed to allow such access in some cases. But it was cumbersome to enforce such access, particularly because there was no express language in the Rules themselves to which a campaigner could point in trying to avoid eviction by hostile terminal managers or by police officers whom they had called. As proposed, however, the Election Rules would explicitly require employers to afford such access; if this Court enters an order adopting those rules and making them enforceable on pain of contempt, then campaigners will be able to show the Rules and the order to police officers. As a result, we believe, there would be many instances where it would not even be necessary to invoke the machinery of the Election Rules in order to successfully assert the right to campaign in a parking lot for long enough to get the job done. Moreover, the mere fact that the Election Officer was willing to enforce the right of access during the last election was enough to persuade some major Teamster employers to allow such access as a matter of course. For example, United Parcel Service, which employs 170,000 trucking and inside employees, allowed a degree of access by agreement with the Election Officer. So did Anheuser-Busch, the largest employer of Teamsters in a factory-type setting, at its 15 brewery operations around the country. Absent a rule allowing access, the importance of worksite access will lead many delegate candidates to do their best to campaign on thoroughfares outside employers' facilities. This will result in many dangerous situations and traffic hazards, as both the Election Officer and the Independent Administrator noted in a number of their decisions during the last election. II. The Abrogation of the Rights of Certain Teamster Members to Participate Fully in the Election Should Be Reconsidered. We fully support the strong prohibition on employer contributions to any candidate or campaign. We are eqqually concerned, however, with protecting the right of all teamster members to participate fully in the election. This concern leads us to have reservations about one provision in the Election Rules. During the last election, the Rules followed the provision of the Consent Decree that amended the Constitution to forbid expressly the use of employer resources in campaigns for International office, but which contained an express reservation of the rights of members, stating that nothing in this amendment was intended to restrict the rights of members to contribute to election campaigns. Accordingly, during the last election, Article X, Section 1(b)(5) allowed contributions from "any member, whether or not such member is an employer." In the new Rules, by contrast, Article XII, Section 1(b)(5) states that nothing in the ban on employer contributions "shall prohibit any candidate from accepting contributions made by any member, unless such member is an employer."(5) Because the Rules define the expression of an opinion that an individual is a good candidate or a bad candidate as a form of campaign contribution, Definition 5(f), the new Rule effectively forbids employer-members from participating in the election, or even expressing their opinions about the election, in any way except, perhaps, by voting. Nor do we draw much comfort from the exception for the employment of household help. Most Teamsters are not like Zoe Baird, who could afford a full-time childcare provider who came to her home. The cheaper way to secure child care, which is far more common for Teamster members, is to place children in other people's houses or at more substantial institutions, where the members do not function as employers. A more common situation in which Teamsters are likely to be deemed employers is where they maintain a small business on the side, such as rental housing, or restaurants or taverns, or, wwere they are owner operators in the trucking industry. The Election Officer's memorandum contends that this change is justified by an unreported decision by the United States District Court for the District of Hawaii, Martin v. Teamsters Local 996, Civ. No. 89-00241 HMF (August 12, 1991), which construed section 401 of the LMRDA to forbid contributions by such members. Indeed, given the express exception for employer-members in the Consent Decree's constitutional amendment, the new Rule necessarily rests on the proposition that the LMRDA imposes a duty on all unions to deny campaign rights to members who are employers. We question, however, whether the LMRDA compels this result. After all, although section 401(g) of the LMRDA prohibits contributions by employers, section 401(e) contains the following express protection for the rights of members: "In any election required by this section which is to be held by secret ballot, . . . every member in good standing . . . shall have the right to vote for or otherwise support the candidate or candidates of his choice . . .." This section guarantees the right to campaign and support campaigns to "every member," without any exception. Moreover, there is a recent decision by this Court which appears to be better authority on the question of the rights of employer members than Local 996. In Puma v. Sheet Metal Workers, 862 F. Supp. 1077 (S.D.N.Y. 1994) (per Carter, J.), a union member who owned a company that employed sheet metal workers sued to prevent the union from expelling him from membership in violation of the due process provisions of the LMRDA. The union moved to dismiss on the ground that the second proviso to section 101(a)(4) of the LMRDA, while authorizing members to sue their own union, forbids interested employers from financing such litigation; the argument was that, as an employer, Puma could not finance his own litigation. The Court, however, rejected that argument, noting that there was no evidence that the funds of the business itself were being employed in the litigation. Id. at 1081. Accord, Myers v. Operating Engineers Local 513, 653 F. Supp. 500, 504 (E.D. Mo. 1987) (section 101(a)(4) proviso does not bar employer-member's suit to invalidate dues increase). These decisions support an analogy to the election provisions of the LMRDA, under which a member who owns a business would be allowed to participate in the election, so long as he or she does not use the funds of the business. Indeed, in a Title IV case subsequent to Local 996, the Secretary took the position that a member who also functioned as an employer (specifically, he was the operations manager for a company) did not make a forbidden contribution where he distributed a personal endorsement of the winning candidate, using his own funds and other resources. Martin v. IOMMP, 786 F. Supp. 1230, 1237-1238 (D. Md. 1992). In addition to being unreported and from a different jurisdiction, Local 996 is weaker authority. In that case, a candidate had received two separate contributions from employers, one from an employer who was a union member, one from an employer who was not a member. Although the opinion addressed both contributions, and stated that section 401(g) prohibited both of them, the decision contained no reasoning, and it did not even consider the conflict between section 401(g) and section 401(e)'s guarantee of rights for "every member." Moreover, the decision with respect to each contribution was independently sufficient to support the judgment that the election be set aside, and the decision with respect to the employer-member's contribution did not in any respect increase the remedy. Accordingly, Local 996's statement about contributions from employer-members is an alternate holding, at best. Moreover, as construed by the Election Officer, section 401's ban on contributions by employer-members creates a number of practical problems and requires distorted constructions of some of the other provisions of the Rules and of the LMRDA. For example, during the last election, the Election Officer took the position that managerial and/or supervisory personnel for employers were covered by the prohibition on employer contributions. Thus, for example, a Roadway executive would be prohibited from funding a candidate just as much as Roadway itself would be. By the same token, because the Rules adopt the Labor Department's construction of the LMRDA as forbidding contributions from "non-profit organizations" that employ staff, and because unions are themselves a form of non-profit organization, unions are "employers" within the meaning of the Rule, and so the chief officer of a union, as a supervisor of an employer, would similarly be forbidden from contributing. Of course, when members were exempted from the employer prohibition, this was not a problem, but now that membership status does not save one from the prohibition, the Rule must necessarily be construed to forbid all incumbents from supporting their own re-election, and to forbid the heads of subordinate union bodies from running for other offices. We are told that, in order to avoid this problem, the Election Office intends to declare that unions are not employers. That is all very well, but it seems a highly unnatural construction, given the very expansive way in which the term "employer" is otherwise being construed. Moreover, this construction would not avoid another problem -- there are unions, such as the International Organization of Masters, Mates and Pilots, that consist largely of high-level supervisors (in that case, ship captains). These unions cannot be certified under the NLRA, but they are covered by the LMRDA. See, e.g., IOMMP v. Brown, 498 U.S. 466 (1991). Under the Labor Department's construction of the Rule, no member of such unions would be able to support candidates for office. There is another practical problem that is created by this change. A national campaign, or, in TDU's case, a national caucus, necessarily receives a large number of relatively small contributions, and can normally spend only so much effort (and funds) policing its contributors to be sure that they are eligible to give money. If any member can contribute, regardless of the member's status as an employer, a campaign organization or caucus can feel safe in accepting funds or other forms of assistance so long as it ascertains that the individual is a member of the union. However, in these circumstances, it is very hard for organizations to protect themselves against the possibility that, in addition to being a member, an individual may have some sort of business on the side. In our experience it is quite common for Teamster members -- especially for drivers -- to have a side business in which they may conceivably have an employee. The new Rule, then, sets a trap for campaigns and caucuses that will likely lead them into violations that are essentially unavoidable.(6) In raising this concern, we are compelled to acknowledge that the whole issue is troubling. It is not at all clear which side in the coming election will be more harmed by this change in the Rule, particularly because there appears to be some evidence that some potential candidates from the Old Guard, such as James Hoffa, Jr., and Larry Brennan, may themselves be employers (Hoffa, for example, may be an employer in connection with his former law firm).(7) But at the very least, the issue ought to be considered by the Court in light of all the legal authorities, and resolved at the outset. The proposed Election Rules should be adopted, with the possible exception of the Rule forbidding members who are "employers" from making any campaign contributions. Respectfully submitted,
Paul Alan Levy Public Citizen Litigation Group
Attorney for Teamsters for a Democratic Union June 12, 1995 1. Indeed, as Professor Charles Fried has noted, the NLRA vests employees who choose to engage in collective bargaining with a qualified property right in the employing enterprise. Fried, Individual and Collective Rights in Work Relations: Reflections on the Current State of Labor Law and Its Prospects, 51 U. Chi. L. Rev. 1012, 1016-1017 (1984). 2. The NLRB has described the right to campaign for union office as one of the most basic rights protected by section 7, so basic that it cannot be waived by the union as a bargaining agent. General Motors Corp., 211 NLRB 986 (1974), enf'd, 512 F.2d 447 (6th Cir. 1975). In this sense, the rights exercised under the Election Rules are far more significant than the area standards or secondary-type expressions at issue in the Board's post-Lechmere cases discussed in the text. 3. In circumstances where an employer allows campaigning that goes beyond the merely incidental, of course, the Election Officer should be free to find a violation of the campaign contribution rules and thus to afford a more expansive remedy than access to a parking lot. See Dole v. Hotel Employees Local 226, 718 F. Supp. 1479, 1483 n.4, 1484 n.6 (D. Nev. 1989) (argument by Secretary on which Court did not have to rule). 4. The Board has indicated that, where the section 7 right is "attenuated," as in the case of secondary consumer boycott handbilling, the General Counsel's demonstration of lack of adequate alternatives must include a discussion of why the mass media would not provide a reasonable alternative. Oakland Mall, 316 NLRB No. 173, 149 LRRM 1017, 1021 (1995). Because the section 7 right to campaign for union office is so much more fundamental, particularly in the Teamster context given the historic significance of the Consent Decree, the Court need not consider the mass media alternative here. 5. The wording is serpentine: the rule barring employer contributions does not apply to members unless the member is an employer. It would be clearer if the double negative were eliminated, and the rule simply stated that contributions are forbidden from any employers, including members who are employers. 6. This problem is exacerbated by the fact that, during the last election, the Election Officer effectively placed the burden on a fund recipient to prove that any given contributor was eligible to give money. In that circumstance, proving that a contributor was in fact a member was sufficient to avoid a remedy. Under the new Rule, it is not clear that such proof would be sufficient. 7. Protests raising this issue have been filed with the Election Officer. more resources
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