IN RE: AVRAL THOMPSON,
Protest Decision 2001 EAD 284
Issued: March 30, 2001
OEA Case No. PR031916MW
Avral Thompson, a Local 89 member and the campaign manager for the Zuckerman Washburn Unity slate (the "Unity slate") in that local's delegate election, 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"). Thompson alleges that Local 89 member Danny McGee, a United Rank and File slate delegate election candidate, campaigned during working hours.
Election Administrator representative Jason Weidenfeld investigated the protest.
Findings of Fact
McGee works out of USF Holland's Jeffersonville, Indiana facility. He does not dispute that at least once he spoke with fellow member Kenny Lampton there regarding the upcoming delegate election. McGee also gave campaign materials to Lampton. McGee claims that the interchange lasted five to eight minutes while he was not on break. Eldon Dunaway, a Local 89 member, works with McGee and had to stop working while waiting for a couple of minutes for McGee to return to work. Dunaway reported the incident to assistant steward Jay Graves, a delegate candidate on the Unity slate. Graves, in turn, reported the incident to Local 89 business agent Herman Veltman, a delegate candidate on the Unity slate, and Veltman informed the protestor. Dunaway told our investigator that he knew of only one other instance of campaigning by McGee during working hours and that this second instance occurred on the same day as the campaigning described.
Another Local 89 member, John Sawyer, stated that McGee gave him campaign materials during working hours. Sawyer told McGee not to do so during working hours. Sawyer said that he has since seen no other instances of campaigning by McGee during working hours.
McGee claims that he had an agreement with Graves to permit campaigning at the facility. McGee said that he and Graves spoke after the filing of this protest and agreed not to campaign during working hours. Graves denies making any agreement with McGee regarding campaigning and claims that he has campaigned at work only during breaks and at lunch. Lampton told our investigator that all parties interested in the election, including McGee and Graves, discussed the election during working hours, but Lampton never considered anyone to be campaigning. Rather, he considered the election a topic of conversation like any other topic.
Len Waldo, USF Holland's Director of Labor Relations, contacted our investigator shortly after receiving a copy of the protest. Waldo said that the Jeffersonville terminal manager, J.D. Barnes, was unaware of any campaigning occurring at the facility during working hours. After this protest was filed, USF Holland posted a statement that campaigning during working hours "is considered Abuse of Company Time and is subject to Disciplinary Action according to Article 46 of the National Master Freight Agreement." Since this posting, we have received no evidence of campaigning by McGee during working hours.
Analysis
Article VII, Section 11(a) of the Rules prohibits campaigning during work hours, excluding lunch, breaks, and similar time off. As with other topics of conversation, however, campaign activity and discussions of the upcoming delegate election are permitted if they are "incidental" to work. Id. In assessing whether campaign activity is incidental, cases have considered the "absence of evidence that an employee failed to perform work, deviated from prescribed duties, or interfered with another employee's work." Viscomi, P683 (April 12, 1996) (citing Grossman, P476 (March 6, 1996)); Raymond, P434 (March 14, 1996).
Even though USF Holland knew of no campaigning at the facility, the weight of the evidence compels us to find a violation of the Rules. Although limited in duration, McGee's work time campaigning interfered with his duties and those of at least one fellow employee.
Accordingly, we GRANT the protest.
Remedy
When the Election Administrator determines that the Rules have been violated, he "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator views the nature and seriousness of the violation as well as its potential for interfering with the election process.
McGee's conduct is a borderline violation of the Rules and appears to have ceased. Therefore, to remedy McGee's violation, we order him to continue to refrain from non-incidental campaigning during working hours.
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.
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 (fax: 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 284
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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
Avral Thompson
9135 Loretto Road
Loretto, KY 40034
IBT Local 89
3813 Taylor Blvd.
Louisville, KY 40215
Danny McGee
7502 Apple Blossom Road
Louisville, KY 40299
David Thornsberry
United Rank and File Slate
10403 Truman Way
Louisville, KY 40299
J.D. Barnes
Terminal Manager
USF Holland
4885 Keystone Blvd.
Jeffersonville, IN 47130
Len Waldo
Director of Labor Relations
USF Holland
750 E. 40th ST.
Holland, MI 49423
Dennis M. Sarsany
1829 Eddy St.
Chicago, IL 60657
Michael Goldberg
73 Harrowgate Drive
Cherry Hill, NJ 08003