Protest Decisions

IN RE: HOFFA SLATE, ASHLEY McNEELY, LEEDHAM SLATE and DANNY CAMPBELL, 
Protest Decision 2001 EAD 204
Issued: March 1, 2001
OEA Case Nos. PR103002NA, PR012212NA, PR012213NA, PR012915MW and PR013014MW

See also Election Appeals Master decision 01 EAM 54 (KC)

The Hoffa Unity slate ("Hoffa slate"), the Tom Leedham Rank and File Power slate ("Leedham slate"), IBT 2000 member and Leedham slate International officer candidate Ashley McNeely, and IBT Local 2000 member and principal officer Danny Campbell, each has filed one or more related pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). The protests are consolidated for decision here.

The first of the two Hoffa protests (PR103002NA) alleges that the Leedham slate improperly accepted employer contributions from Northwest Airlines ("NWA") when candidate Leedham and other Leedham slate candidates and supporters (collectively the "Leedham group") used companion air transportation passes ("companion passes") issued by NWA through McNeely, an NWA employee, for campaign travel. The Hoffa slate argues that the receipt of these companion passes by the Leedham group constitutes receipt of employer contributions, contrary to Article XI, Section 1(a) and (b)(2) of the Rules, Article 4, Section 4 of the IBT Constitution, and the LMRDA. The Hoffa slate also alleges that the political use of the companion passes by the Leedham group has not been properly or completely reported in CCERs filed with the Election Administrator by the Leedham slate and/or individual members of the Leedham group.

McNeely's protest in PR012212NA and the Leedham slate's protest in PR012213NA each allege that NWA improperly retaliated against McNeely because of her candidacy and pro-Leedham slate activity when it threatened her with discipline and subjected her to investigation concerning the Leedham group's use of NWA companion passes issued through McNeely. The protestors further argue that NWA improperly levied discipline against McNeely when it limited her travel pass privileges in actions taken on January 19, 2001 and February 21, 2001. The Leedham slate further alleges that NWA's actions in this regard constitute preferential treatment toward the Hoffa slate that has resulted in an improper NWA contribution to that slate, and in doing so relies upon alleged favored treatment given to NWA employee and IBT vice-president Dotty Malinsky with respect to NWA subsidized travel.

Campbell's protest in PR012915MW alleges that NWA, through its counsel Timothy Thornton, threatened retaliatory action against McNeely because Campbell had placed an announcement concerning the threatened discipline against McNeely on a recorded and website "hotline" message for Local 2000 members. The second Hoffa slate protest in PR013014MW concerns the same hotline message, and alleges that its publication constitutes an improper use of union resources for campaign purposes because the message attacks the Hoffa slate.

Election Administrator representatives Michael Nicholson and Lisa Sonia Taylor investigated the protests.

Findings of Fact

Local 2000 represents NWA's 11,000 flight attendants. McNeely is Local 2000's elected Honolulu base representative. She also serves on Local 2000's elected seven member executive board. She has worked for NWA since 1990 and has been involved in local union affairs since 1992.

Like other NWA employees, McNeely has a contractual right to NWA subsidized companion passes. Upon receipt, McNeely and other NWA employees may give these passes to others (including non-NWA employees) for their use. These companion passes allow the recipients to fly on a space-available basis on certain NWA flights. The recipients are not required to fly with the NWA employee that gives them the companion pass. After use of the pass by the recipient, the NWA employee through whom the pass is issued is required to pay NWA an amount that varies based upon factors such as date and time of use and route. Separately, NWA employees enjoy pass privileges for their own travel.

The NWA employee and companion pass program is subject to NWA-adopted rules, stated in the company's June 1, 1990 "Pass and Reduced Rate Transportation Privileges" booklet (hereafter the "policy"). Material here is the policy's provision that "[u]se of passes or reduced-rate tickets for private or another company's business purposes" is grounds for loss of pass privileges, "reimbursement of equivalent fare, and/or other disciplinary action, including suspension or discharge."[1]

The NWA-Local 2000 collective bargaining agreement also contains provisions concerning employee and companion pass travel. Among other contractual commitments is the company's promise that it "shall not substantially diminish the benefits provided by the Company's pass and reduced rate transportation policy, as it exists on the date of the signing of this agreement." Agreement of June 1, 2000, Section 25.I.

On February 21, 2001, NWA announced its decision to discipline McNeely for her provision of companion passes to the Leedham group. This action was preceded by NWA's December 6, 2000 notice to McNeely that it was investigating her conduct as a potential violation of the above-quoted provision of its policy, and its direction that McNeely submit to an investigatory interview. That interview was conducted and transcribed by NWA on January 19, 2001. During the interview, McNeely admitted she had provided companion passes to the Leedham group, but claimed that this did not violate the policy as interpreted and enforced by NWA before and up until the time that it signed the current flight attendant labor agreement with Local 2000.[2]

Based upon this claim, McNeely asserts that Section 25.I of the current labor agreement secures her right to have transferred the companion passes to the Leedham group. She further relies upon NWA's grant of more extensive travel pass usage by IBT vice-president and NWA employee Dotty Malinsky, a Local 2000 member, IBT vice-president and Hoffa slate International officer candidate.

At the conclusion of the January 19 investigatory interview, NWA suspended McNeely's travel privileges pending completion of its investigation. As noted, the investigation ended on February 21, 2001, when NWA informed McNeely of its conclusion that the companion pass travel of Leedham group members who were not NWA employees was contrary to the policy's ban on such travel for the traveler's private or non-NWA company business use. NW relied upon the fact that the Leedham group travel related to non-NWA related jobs and/or conduct as IBT activists, officers, and International officer candidates. In reaching this conclusion, NWA does not appear to have distinguished between travel that would be deemed campaign-related within the meaning of the Rules and travel that, because it related to non-campaign union business, would not. Thus, NWA concluded without distinction that both kinds of companion travel by non-NWA employees violate its policy.

Because of this conclusion, NWA notified McNeely that Leedham had been removed as McNeely's registered travel companion [3] and that she would not be allowed to register another such companion until 2002. In addition, NWA suspended McNeely's regular companion pass privileges for 12 months, and her personal pass privileges for six months. McNeely was not suspended or discharged from employment.

In addition to the instant protests alleging Rules violations by NWA, McNeely and Local 2000 assert that NWA's actions are contrary to the company's collectively bargained promise not to substantially cut back companion pass travel. They contend that because NWA has allowed employee pass travel for union political campaigning, and because the no "business use" policy applies equally to employee and companion pass travel, such past use (with alleged NWA knowledge) means that both employee and companion pass travel for campaign purposes is contractually protected, and constitutes a legitimate use of pass travel earned by employees as an employee benefit. Thus, argues McNeely and the Leedham slate, the companion pass usage by the Leedham group is not use of employer property constituting an employer contribution proscribed by the Rules. Rather, they say, McNeely's transfer of the passes to the Leedham group is, to the extent the passes were used for campaign purposes, a contribution by the employee of the employee's own property, and thus permitted under the Rules, so long as the contribution does not exceed the contribution limits applicable to members and candidates under Article XI of the Rules.

Local 2000 grieved NWA's February 21, 2001 action against McNeely on February 23, 2001. The grievance asserts that NWA's action "substantially diminishe[s] the benefits provided by the Company's Pass and Reduced Rate Transportation Policy, as that Policy existed on the date of the signing of the current agreement[,]" and thus a violation of Section 25.I of the NWA-Local 2000 labor agreement. Counsel for NWA and Local 2000 have each informed our staff that their clients will consent to expedited arbitration of this grievance.

Finally, the Leedham slate does not dispute that McNeely's transfer of the companion passes to members of the Leedham group are reportable on any CCERs filed by the Leedham slate or any other individual or entity required by the Rules to file a CCER, at least to the extent that the pass was used for campaign travel, that is, travel that had as its "purpose, object or foreseeable effect … to influence, positively or negatively, the election of a candidate for Convention delegate or alternate delegate or International officer position." The Leedham slate, however, seeks clarification as to the reporting requirements applicable to any such travel, and specifically requests the Election Administrator to determine what value should be assigned (for expenditure and contribution reporting purposes) to NWA companion passes transferred by an NWA employee to another person for campaign use, and whether the amount to be reported should be solely the amount charged to the NWA employee, or some additional amount as well. The Leedham slate further asks what value, if any, should be assigned for CCER reporting purpose to any such transfer where the employee receives repayment of the amount billed to him or her by NWA for the companion pass usage. The Leedham slate says that it will file amended CCERs upon receipt of such clarification.

Analysis

The key question raised by the first Hoffa slate protest and the Leedham slate and McNeely protests is whether Leedham group usage of NWA companion passes is an improper use of NWA property and thus an improper employer campaign contribution under the Rules. Under NWA's construction of its policy, the pass travel that resulted from McNeely's transfer of companion passes to the Leedham group is not permitted because that travel was for private business use of the recipients, or business use for "another company." Under grievant McNeely's and Local 2000's construction, such use is consistent with NWA policy, as it has previously been applied by NWA, and thus NWA's actions against McNeely represent a "substantial diminishment" in her pass privileges and thus a violation of Section 25.I of the current labor agreement.

This question must be resolved in order to answer the most critical issue in this case: whether the Leedham group's use of companion passes given to them by McNeely constitutes an improper appropriation of NWA property, and thus a forbidden employer contribution to the Leedham campaign, or a legitimate transfer of companion passes by McNeely consistent with the policy as it was applied by NWA up to June 1, 2000. This is fundamentally a question of labor contract interpretation, bearing as it does on the meaning of the policy's language, the contract's language, the past practices of the employer as specifically referenced in Section 25.I of the labor agreement, and related issues.

If McNeely and Local 2000 are right, then the transfers here are transfers of employee discounts to a campaign that are permitted so long as they are generally available to employees, Kilmury, P542 (April 2, 1996), and are otherwise within the campaign contribution limits set by Article XI of the Rules. If NWA is right, the Leedham group members have appropriated employer property that was not McNeely's to give under either the policy or Section 25.I of the labor agreement. And if NWA is right and the appropriated travel passes were used to further the campaign of the Leedham slate or its members, the travel pass usage is an employer contribution forbidden by Article XI of the Rules.

In such circumstances, we conclude that the protest allegations in these cases that relate to the pending labor grievance should be DEFERRED to the collectively-bargained grievance and arbitration proceedings negotiated by NWA and Local 2000, especially given their mutual intention to schedule expedited arbitration.[4]  Mullins, PR332 (October 29, 1998). The matters to be deferred shall include the allegations of misconduct by NWA, as well as the allegations of improper employer campaign contributions which can best be answered once the contracting parties receive the arbitral interpretation of the policy and Section 25.I that they bargained for.

In deferring, we reject the claim of the Hoffa slate that Local 2000's pursuit of the McNeely grievance constitutes an improper use of union resources in support of the Leedham campaign. As is the case with respect to the use of union funds to pursue a protest under the Rules, the legitimacy of the Local 2000's use of its resources to pursue the grievance rises or falls upon whether the grievance furthers the independent, institutional interest of the union. McGinnis, 91 EAM 150 (May 16, 1991); Furst, P711 (July 15, 1991), aff'd in rel. part, 91 EAM 172 (July 29, 1991). See generally Jenne, 2000 EAD 64 (December 14, 2000). Here, we conclude that Local 2000 has such an independent institutional interest, even though winning the grievance may assist the Leedham campaign. Thus, the local union has a legitimate interest in protecting the rights of its members under the negotiated pass program, and in preserving what it understands to be the past practice with respect to pass travel that it asserts is protected here by Section 25.I of the labor agreement. Further, we note that if Local 2000 prevails, all NWA employees will be free to contribute companion passes to the candidates of their choice, whether candidates of the Hoffa slate, the Leedham slate, or otherwise.

The Hoffa slate also argues that deferral is inappropriate because under the labor agreement it has no right to participate in the arbitration proceeding contemplated by that agreement. We find this concern to be without merit because, under prior election rules precedent, even where there has been a deferral, the Election Administrator is not bound by the court's or arbitrator's decision or by any findings of fact or conclusions of law made. Golubovic, P25 (July 21, 1995); Henderson, P760 (September 9, 1991), aff'd, 91 EAM 187 (September 18, 1991), aff'd, U.S. vs. IBT, 777 F.Supp. 144 (S.D.N.Y. 1991), aff'd, 954 F.2d 801 (2d Cir. 1992). Once the arbitration is completed and an award is entered, the Hoffa slate will be provided the opportunity to urge that we refuse to follow the arbitrator's decision, and to present any evidence it has in support of that position.[5]

We do not defer the allegations concerning the "hotline" communication by Local 2000 concerning the McNeely investigatory interview. Instead, we DENY the Campbell protest, because a review of the evidence leads us to conclude that the alleged threat, made by NWA counsel Thornton in a conversation with McNeely and Local 2000 counsel Harvey, was not a threat at all, but only a suggestion by Thornton that the hotline communication was inflaming what he believed to be an already "ugly" situation.

We GRANT the Hoffa slate's protest in Case No. PR013014MW, which challenges the hotline message's reference to the Hoffa slate. The hotline message discussed a matter of legitimate concern to Local 2000's members: the McNeely discipline and the related questions about the scope of the pass program. However, no legitimate interest was served by the local's inclusion in the hotline message of the reference to the Hoffa slate in the following description of an interchange between Ms. Harvey and Mr. Thornton:

At one point in her Question and Answer session with management, Ashley was asked by company attorney Tim Thornton whether she had reported Leedham's pass usage as a campaign contribution. In response to this question, Local 2000 attorney Barbara Harvey asked whether the company was asking these questions on behalf of the Hoffa slate or the IBT.

We conclude that the "tone, timing and content" of this reference to the Hoffa slate constitutes campaigning against that slate with Local 2000 resources, and is thus in violation of the Rules provisions that prohibit such use. See Ostrach, 2000 EAD 68 (December 20, 2000), Martin, P10 (August 17, 1995), aff'd, 95 EAM 18 (October 2, 1995); Jacob, P71 (September 7, 1995), aff'd, 95 EAM 19 (October 3, 1995); Ruscigno, P67 (July 19, 1995). In applying this test, the Election Administrator must review "the specific context in which the communication takes place." Jacob, supra. Nothing about the context of the remarks about the Hoffa slate suggest a legitimate non-campaign reason for repetition of those remarks in the hotline. The repetition of those remarks added nothing to the points made in the hotline message that were of legitimate, non-campaign interest to the local's members.[6]

Remedy

When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interference with the election process.

We first order Local 2000 to cease and desist from any further use of its hotline for campaign purposes. Further, since the Hoffa slate has not had an opportunity to respond to the hotline message, we order that Local 2000 provide the slate an opportunity to respond. Since the local union's delegate election ballots will be mailed on March 29, 2001, the Hoffa slate will be afforded an immediate opportunity to include a message of similar length to the message that violated the Rules. As in Ostrach, supra, the responsive message shall be of the same length as the challenged message, and any disputes concerning this will be resolved by the Election Administrator.

A decision of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73 (February 13, 1996).

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 15^th Street NW, Tenth Floor, Washington, DC 20005, facsimile (202-454-1501), all within the time period 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 204

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Julie Hagen Showers

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