IN RE: JAY DOMENY AND ORMAR LOCKLEAR,
Protest Decision 2001 EAD 487
Issued: October 3, 2001
OEA Case Nos. PR090911WE & PR091811WE
Jay Domeny, a shop steward and member of Local 150, 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"). Ormar Locklear, a member of Local 78, filed a pre-election protest under the same Rules provision against the Tom Leedham Rank and File Power slate (the "Leedham slate") and United Parcel Service ("UPS"). Domeny alleges that campaigners for the Hoffa slate harassed and intimidated IBT members employed by UPS at its West Sacramento facility in the course of their campaign conduct, in violation of Article VII, Section 11 (e) and (g) of the Rules. Locklear alleges that UPS has improperly contributed to the Leedham slate by allowing Leedham bumper stickers to be displayed on company vehicles and that UPS interfered with campaign activities on public property outside the West Sacramento facility.
Election Administrator representatives Dolores Hall and J. Griffin Morgan investigated the protests.
Findings of Fact and Analysis
On Friday evening, September 7, 2001, approximately five IBT members went to the UPS facility in West Sacramento, California to campaign for the Hoffa slate. UPS has a yard and two remote lots down the public street from the yard. Drivers were engaged in shifting trailers between the yard and the two lots, going into and out of the in-bound gate. Hostlers were engaged in shifting vehicles within the yard by means of vehicles called yard birds. At approximately 8:00 p.m., one of the hostlers complained to Pete Franko, UPS feeder on-road supervisor, that the Hoffa campaigners were coming into the yard, talking to him while he was trying to work. At about the same time, four drivers went to the office to complain to Jim Crowder, UPS feeder dispatch manager, that the Hoffa campaigners were obstructing the in-bound gate and forcing campaign material on them. They also complained that the Hoffa people were taking their pictures.
Dan Anderson, a feeder driver engaged in "shifting the yard," stated that the Hoffa people had a large trailer with Hoffa signs which they pulled behind a pick-up truck and a couple of other vehicles all covered with Hoffa signs parked on the street in front of the UPS facility at the in-bound gate. Anderson stated that the campaigners were handing out literature to people in the driveway and on the street. He stated that, as he went through the gate, one of the campaigners tried to put some of the literature in his window and he said, "No, thanks" and that he was not interested. He said several of the campaigners started shoving the literature into his face. He said he went back and forth between the yard and the lots twice more and each time they tried to shove the literature into his cab and his face. He said the last time, they blocked his way from going into and out of the gate and he threatened to run them over if they did not get out of his way. He stated that one of the campaigners jumped up and took his picture and then wrote down the number of his vehicle. He said the rest started jumping up and down, giving each other "high five's" and chanting "We got you now." Anderson stated he felt intimidated because he did not know what they would do with his picture. He said he also felt that if he needed representation from the union, he would not get it. Anderson stated they took the picture of several other drivers and were making obscene gestures toward the drivers.
Andy Culp, a feeder driver in the yard and a job steward, stated that he reported for work shortly before 9:00 p.m. and was told that the police were there at the in-bound gate and what had happened. Culp stated the same thing had happened the week before when Hoffa campaigners impeded the work of the drivers while trying to distribute campaign literature. He said the police were not called out the previous week. Culp kept the employees back from where the campaigners and police were. He said his picture was not taken. Culp stated that he told management officials that if at any point he felt threatened, the employees would go home and management could deal with the situation.
Darrel Burks, a hostler, was working in the yard on the evening of September 7. Burks' vehicle is not "street legal," but rather remains in the yard shifting trailers around. He stated he saw the Hoffa campaigners taking the pictures of drivers who were going in and out the gate to the remote lots. He stated the Hoffa people were asking for the names of the drivers. Burks stated the Hoffa people kept coming onto the driveway and a couple of them almost got hit by trucks. He said the Hoffa people were attempting to distribute campaign literature, but if the literature was refused, they did not like that. He stated the feeder drivers were feeling harassed and becoming nervous and uncomfortable about the situation of having their pictures taken. Burks stated it was "pretty scary" to have them take the picture, write down the vehicle number and then try to find out the name of the individual. He stated they were all wondering what they would do with the information. Burks said the feeder drivers went upstairs to complain to management and that left him alone in the yard. He said he went to the telephone and called upstairs and the Hoffa campaigners took his picture while he was on the phone. He said one of the Hoffa people came up to him and asked him if he was a supervisor and he replied that he was not. He said he was then told by one of the Hoffa people to go back to work and mind his own business. He said he told the guy that the drivers were going to go home and he would be left to complete the work by himself. He said three of the Hoffa people then came into the yard and started "getting nasty," telling him to mind his own business and saying things about part-time workers. Burks said that management officials then went out to try to talk to the Hoffa people and he went on the other side of the yard to work. Burks said that is where he was when the police came out. He says he heard later that the campaigners told the police they were on company property; Burks says they definitely were.
Chad Martin, a feeder driver, saw that there were Hoffa supporters campaigning in the driveway when he reported for work on the evening of September 7. As he attempted to pull into the lot, they tried to give him some literature and he told them he was not interested. He says he saw two or three more Hoffa people at the in-bound gate attempting to distribute campaign literature to the workers as they were coming in from and going out to the remote lots down the street. He says that the drivers were required to either stop or hit the campaigners because they were stretched across the driveway on UPS property. He said that, when he would stop, they rushed the cab and tried to put the campaign literature in the window. Martin says they were on duty and could not accept anything like that. Martin stated they had several vehicles parked on the street just outside the gate with Hoffa signs all over the vehicles and they were distributing Hoffa campaign material. He says the activity went on for a couple of hours and he finally told management about the dangerous situation, but management initially did nothing. He says there were three feeder drivers working at that gate and the campaigners were running up to their vehicles and yelling at them. Martin says that as he was coming into the gate, all seven of the campaigners started yelling "8485" (his vehicle number) and, as he inched his way forward, a guy stepped right in front of his vehicle and took his picture. He says the flash blinded him and he "almost hit the guy." He says the Hoffa campaigners then started yelling, "We got you No. 8485 - we know who you are." Martin says they were trying to do their jobs and the Hoffa people were clearly trying to intimidate them. Martin says that after having put up with having material shoved into the windows and their faces, having the driveway blocked, and having the Hoffa people coming onto UPS property, the three feeder drivers went upstairs and told management they were going home unless something was done about the situation. Only then did UPS management called the police.
Jim Crowder, UPS feeder dispatch manager, told our investigator that he was in his office on the evening of September 7 when four of the drivers who are assigned to "shift the yard" came in. He said they complained that Hoffa people were campaigning at the in-bound gate, obstructing them and forcing campaign material on them. He stated that they also complained that the Hoffa people were taking their pictures. Crowder said that another UPS manager, Pete Franko, went down and tried to talk to the Hoffa people, asking them to stop impeding traffic into and out of the yard. He reports the Hoffa people gave Franko "a bunch of lip service" and Franko called him and instructed him to call the police, which he did.
Pete Franko, UPS feeder on-road supervisor, says he was in the UPS yard on the evening of September 7 when a shifter complained to him that Hoffa campaigners came onto the property to talk to him. He says that, as time went on, other shifters informed him that the campaigners were harassing them. Franko stated that the Hoffa campaigners formed a human barricade across the street so the drivers who were going back and forth between the yard and the remote lots couldn't get past them and they were taking the drivers' pictures. Franko went out to talk to the Hoffa people and asked them to remove themselves from the area and go to the guard shack where the employees come in and go out and they could catch more employees that way. He told the campaigners that he did not want them blocking his vehicles, which were trying to come in and go out. They denied doing so.[1] Franko told the Hoffa campaigners that he had seen them at the facility previously engaging in similar conduct and that he therefore believed the complaints of the UPS employees. In response, the campaigners "got obnoxious" with him and when he again asked them to go to the guard shack, they informed him they did not have to do anything they did not want to. Franko then instructed the office to call the police. UPS hub manager Dan Russo then came down and talked to the campaigners, telling them the same thing that Franko had. They again responded that they did not have to comply. According to Franko, the police informed UPS management that there was nothing they could do because the campaigners had a right to be on the public street. However, the police advised management that if the campaigners continued to obstruct the trucks, they would return and remove them. The police told the managers that the campaigners promised to leave shortly. After the police left, the Hoffa campaigners started yelling obscenities and then left shortly thereafter.
The West Sacramento Police Department acknowledged that a call was received on September 7 about a disturbance at 1380 Shore Drive in West Sacramento (the UPS facility). A unit was dispatched at 8:18 p.m. The clerk stated there was no report made by the officers who went out and the only record of the incident is the dispatch notation in the log of that night's activities.
Local 439 secretary-treasurer Sam Rosas reports he did not campaign at the UPS facility on the night of September 7. He was there on August 17, but told Local 287 member Bob Blanchet he was unavailable to campaign at that location on September 7. Rosas says that on August 17 UPS drivers were swerving toward campaigners while they were in the street passing out literature. He claims the trucks almost hit several campaigners.
Blanchet acknowledged that he was at the UPS facility on September 7 campaigning for the Hoffa slate. Blanchet stated two Hoffa campaigners were at one gate and three at another. They distributed campaign literature to the employees passing through the gates, and later they all went to the back gate. Blanchet denies the campaigners went onto UPS property or that they took pictures of drivers, asked drivers who refused literature their names or obstructed vehicles going into and out of any gate. Blanchet admits the Hoffa campaigners took two pictures of Tom Leedham stickers, which he says were in the windows of two hostlers being driven by UPS employees. Blanchet denies any attempt to intimidate anyone and denies attempting to force campaign literature into the windows of the vehicles and faces of the drivers.
We have obtained the roll of film containing the pictures taken by the Hoffa campaigners at the West Sacramento facility on September 7. There are ten pictures in all. Four are of the campaigners by themselves. Three are of UPS trucks, each of which has a Leedham bumper sticker on the dashboard, against but not attached to the windshield, and visible from the outside. There is also an additional picture of a UPS worker, and a picture of the campaigners standing outside a small UPS building near the entrance to its property.
UPS managers Franko and Crowder reported that there were no stickers on any UPS equipment at their facility, with the exception of the American flag.
Based on the foregoing, we find that on the evening of September 7 Hoffa campaigners at the UPS facility impeded the flow of UPS vehicles driven by employees while working, thereby justifying the actions taken by UPS in calling the police and asking that action be taken in response to the conduct of the campaigners in impeding traffic. We thus DENY the protest allegation against UPS relating to such action.
We GRANT Locklear's protest allegation that UPS permitted the display of Leedham bumper stickers by Leedham supporters on UPS vehicles. The photographic evidence clearly shows the display of the stickers. Although they were not permanently affixed, they were in plain view, and must have been visible to UPS supervision. Such display is improper, and contrary to the policy that UPS says it has enforced and will continue to enforce.
We also GRANT Domeny's protest to the extent that it alleges that the Hoffa campaigners entered onto UPS property in the course of their campaign activity. As we have held before, such access, which is not privileged by Article VII, Section 11(e) of the Rules, constitutes receipt of a "thing of value" from an employer, in violation of Article XI, Section 1(b)(2) of the Rules. See Speak, 2001 EAD 240 (March 15, 2001); Sylvester, 2001 EAD 288 (March 31, 2001). We DENY Domeny's protest allegation concerning the taking of pictures and writing down of vehicle numbers, as it appears from the actual pictures taken that this conduct was limited to an attempt to gather evidence in support of Locklear's eventual protest concerning the Leedham bumper stickers.
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 interfering with the election process. Here, we order the Hoffa slate, the Leedham slate and UPS to cease and desist from the conduct found improper above.
An order 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 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 487
DISTRIBUTION LIST VIA 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
Gary Tocci
Kim Kaplan
Schnader, Harrison, Segal & Lewis
Suite 3600
1600 Market St.
Philadelphia, PA 19103
Lindsay Marshall
UPS Inc., Legal Department
55 Glenlake Parkway NE
Atlanta, GA 30328
IBT Local 150
7120 East Parkway
Sacramento, CA 95823
Ormar Locklear
3801 Branson Dr.
San Mateo, CA 94403
Jay Domeny
9647 Folsom Blvd.
PMB 126
Sacramento, CA 92827
Dolores Hall
1000 Belmont Place
Metairie, LA 70001
J. Griffin Morgan
Elliott, Pishko, Gelbin & Morgan
426 Old Salem Road
Winston-Salem, NC 27101
[1] Franko says he was in a vehicle the previous week in the process of training a driver and the Hoffa people were out there that night doing the same thing his drivers were complaining about on this night. He said he saw them getting in the middle of the road the previous week and stopping the drivers to hand fliers into the vehicles.