IN RE: MAURICE COBB,
Protest Decision 2001 EAD 513
Issued: October 18, 2001
OEA Case No. PR101011AT
Maurice Cobb, a member of Local 528, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") against the Hoffa Unity slate (the "Hoffa slate"). The protest alleges that Hoffa slate General President candidate James P. Hoffa campaigned at the Atlanta facility of Gate Gourmet, a provider of food products to airlines, on October 4, 2001, in violation of the Rules.
Following an appeal hearing before the Election Appeals Master, counsel for Local 528 presented a statement from David Murphy, regional senior human resources manager of Gate Gourmet, attesting to campaigning by candidate Hoffa in 1998 in the break room area at its Atlanta facility. We have also interviewed Murphy. According to his written statement, he was present during the 1998 IBT presidential campaign when candidate Hoffa visited the Gate Gourmet employee break area that is the subject of our earlier decision in this matter. Cobb, 2001 EAD 509 (October 16, 2001). According to Murphy's written statement:
I personally met and spoke to Mr. Hoffa, along with others in his group. Mr. Hoffa met with employees in our break room for several minutes. Our company has always tried to accommodate the Union in our facilities, provided the workforce is not disrupted. We will continue to do so as long as all Federal and Local safety requirements are met, and are provided with advance notice needed to accommodate such a request. Mr. Hoffa was allowed in our facility in 1998, and we saw no reason to deny his latest visit, as no other candidate has ever made such a request in my area.
When interviewed by our General Counsel, Murphy was asked whether he knew of any other attempts by non-employees of Gate Gourmet to campaign in the same break area in any Teamster elections. He said he had "no specific knowledge" of any such attempt. When pressed for more information as to any knowledge he had, he repeated that he had "no specific knowledge." When asked about the history of Gate Gourmet's treatment of requests for access to this break room by non-employees for local union elections, he said that the practice over the years was that Local 528 would give Gate Gourmet a list of persons who were authorized to conduct union business with Gate Gourmet, and that only those persons were allowed inside the Gate Gourmet facility. When asked whether persons not visiting Gate Gourmet to conduct union business with the company, but instead to visiting the breakroom to campaign in a union election would be allowed into the breakroom, he repeated his answer, saying only those authorized by the local union would be allowed in.[1]
Our General Counsel also spoke with witness Mike Ferrell, a member of Local 528 who is employed at Allied Automotive Group elsewhere in Georgia. He was a candidate for Local 528 office in its election held in December 2000, along with protestor Maurice Cobb, who also does not work at Gate Gourmet. Ferrell and Cobb ran for local union vice-president and secretary-treasurer respectively. They also ran as delegate candidates in Local 528's delegate election, in which ballots were mailed on February 6, 2001 and counted on February 27, 2001. Ferrell and Cobb are supporters of the Tom Leedham Rank and File Power slate ("Leedham slate").
Ferrell told our General Counsel that in November 2000, he and Cobb went to the same Gate Gourmet Atlanta facility that is the subject of this protest. They brought with them literature that supported their campaigns for local union office, as well as the Leedham slate's International office campaign. They arrived at 10:00 a.m. They entered the building containing the break room that is the subject of this protest, intending to find it and distribute their literature there. Once inside, a female member of management, who asked them what they were doing, confronted them. They said that they were going to the breakroom to pass out their campaign literature for the local union and International union elections among employees on break. In response, the management representative told them that this was not permitted, and asked them to leave the building immediately, which they did. They thereafter distributed their literature in the employee parking lot.
Ferrell and Cobb made the same request for access to the Gate Gourmet break room in a visit to the facility about one week later. They again had Leedham literature to distribute, as well as literature for their local union campaign. They told a female company representative that they wanted to visit the break room to distribute their literature. They were denied and told to leave. They did, and went to the employee parking lot to campaign.
After considering the additional evidence offered by Local 528, and the witness testimony of Murphy and Ferrell, we adhere to our finding that there is no pre-existing right on the part of IBT member non-employees of Gate Gourmet to campaign in the subject break room. Gate Gourmet did grant candidate Hoffa the privilege of visiting the break room in 1998, but that same privilege was denied Ferrell and Cobb on occasions when the period the current Rules were in effect, and when they sought to distribute literature as representatives of candidate Leedham, as well as for themselves.[2] In other words, the evidence shows that rather than a pre-existing right of access to the break room to campaign, there was only a discriminatory grant of access to Hoffa when he was a candidate in 1998. Such discriminatory grants of access do not create a pre-existing right. Rather, Article VII, Section 11(f) of the Rules, proscribes them.
For these reasons, we find based on the additional evidence that the conduct here violates not only Article XI, Section 1(b)(2), but also Article VII, Section 11(f).
We also respectfully request the Election Appeals Master to promptly lift his stay and enforce the remedy we previously ordered, in light of the fact that we are now nine days beyond the mailing of ballots.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street NW, Tenth Floor, Washington, DC 20005 (facsimile: 202-454-1501), all within the time prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2001 EAD 513
DISTRIBUTION LIST VIA FAX AND UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Hoffa Unity Slate
Todd Thompson
209 Pennsylvania Ave. SE
Washington, DC 20003
Matt Ginsburg
30 Third Avenue
Brooklyn, NY 11217
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, TX 75207
IBT Local 528
2540 Lakewood Ave. SW
Atlanta, GA 30315
Gate Gourmet
P. O. Box 45485
Hartsfield International Airport
Atlanta, GA 30320
Maurice Cobb
121 Fox Run Court
McDonough, GA 30253
[1] Local 528 also provided a written statement of Marina Thomas, a Local 528 steward at Gate Gourmet. The statement recites that Thomas was present during the 1998 Hoffa campaign visit, and that Hoffa was "accompanied by several other candidates." Several pictures of the 1998 Hoffa visit were also enclosed. In addition, our General Counsel interviewed Gate Gourmet personnel manager Penny Larkey, who suggested that Murphy was more knowledgeable about these matters, but disclaimed any knowledge of any other attempted visits by campaigners to the break room to the break room that is the subject of this protest. We attempted to reinterview Larkey again after our interview of Ferrell to ask her about Ferrell's allegations; she was not available and did not return either of two phone calls.
[2] The American Heritage Dictionary defines "privilege" as "[a] special advantage, immunity, or benefit granted to or enjoyed by an individual, class, or caste." A pre-existing "right," by contrast to such a privilege, must be available to all campaigners, not just some.