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Office of the Election Supervisor for the International Brotherhood of Teamsters

IN RE: RICK FYVIE,
Protest Decision 2001 EAD 517
Issued: October 22, 2001
OEA Case No. PR100516CA

Rick Fyvie, Vice President of Local 938, 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"). Fyvie represents Local 938 members employed by Maxxim Medical ("Maxxim") and alleges that Local 938 members Joseph Jephson, Byron Mortley, and Dave Scott violated the Rules by threatening Maxxim's vice president of operations while campaigning.

Election Administrator representatives Gwen Randall and Jason Weidenfeld investigated the protest.

Findings of Fact and Analysis

On September 10, 2001, campaigners for the Tom Leedham Rank & File Power slate came to Maxxim to campaign in the parking lot. According to Maxxim human resources director Al Todd, the campaigners gave no advance notice of their visit. They said they were from the Teamsters and told Maxxim's vice president of operations Karl Thompson that he was a "little man" that they could take care of; Thompson took it as a threat and forced the campaigners to leave. The campaigners state that they made no threats and simply showed the vice president the decision approving parking lot access.

In an investigation of the earlier protest arising from the incident, decided in Leedham Slate, 2001 EAD 476 (September 27, 2001), Todd revealed to our investigator that he spoke with Fyvie about the incident on the day it occurred. Todd reiterated this fact with our investigator in this protest case. Todd and Fyvie discussed what had transpired that day and local union procedure for posting notices and publications on local union bulletin boards. Todd stated that Fyvie asked him to convey his apologies to Thompson.

Fyvie alleges that he did not know of the alleged threats until he received a copy of a September 27, 2001, letter from Todd to Gwen Randall stating that Local 938 members Joe Jephson, Byron Mortley, and Dave Scott would not be permitted to enter Maxxim's facility because they had "threatened our V.P. of operations on the morning of September 10th, 2001." Although Fyvie admits that he spoke with Todd on September 10, 2001 regarding campaigning rights under the Rules, he denies knowing until he received Todd's letter on October 4, 2001 that the campaigners had allegedly threatened Maxxim management.

We find that Fyvie knew about the incident on the day that it occurred. To have his protest considered timely Fyvie must allege that he did not know about the September incident until he received Todd's letter. In contrast, Todd has little reason to fabricate the substance or timing of his discussions with Fyvie and even asserts that Fyvie apologized for the campaigners' actions. Such an allegation from a disinterested party is at odds with Fyvie's claim that he knew nothing about the incident until Todd's letter of October 4, 2001. The receipt by Fyvie of the letter does not change our finding that Fyvie knew about the incident when it occurred. Fyvie filed this protest on October 4, 2001, more than three weeks after the incident. The Rules require members to file a protest "within two (2) working days of the day when the protestor becomes aware ... of the action protested." The protest is untimely.

In addition, even were we to assume the truth of the protestor's allegations, the protest would fail to state a claim. Article VII, Section 11(g) of the Rules prohibits retaliation "against a Union member, officer or employee for exercising any right guaranteed by" the Rules. The Rules are not designed to prescribe employers' rights against IBT member employees; employers thus do not have a right to protest under the Rules. Article XIII, Section 1. The campaigners' alleged threats were made to Maxxim's management, not to any Union member, officer, or employee. Furthermore, the protestor does not identify anyone whose rights under the Rules were curtailed. Although the protestor states reasons for being concerned with the incident, including the potential erosion of management-labor relations at Maxxim, he does not identify any violation of the Rules.

Accordingly, for both reasons, we DENY the protest.

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 517

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 Lane

Eugene, OR 97404

Todd Thompson

209 Pennsylvania Ave., SE

Washington, DC 20003

Matt Ginsburg

P.O Box 6678

Arlington, VA 22206

 

James L. Hicks, Jr., P.C.

Suite 1100

2777 N. Stemmons Freeway

Dallas, TX 75207

Rick Fyvie

2-601 Galahad Dr.

Oshawa, ON L1K 1L9

Canada

IBT Local 938

275 Matheson Blvd. East

Mississauga, ON L4Z 1X8

Canada

Joe Jephson

510-27 Bergamount Ave.

Toronto, ON M6V 1W5

Canada

Dave Scott

59 Wildberry Crescent

Brampton, ON L6R 1J9

Canada

Byron Mortley

211-1759 Bloor Street East

Mississauga, ON L4X 1S7

Canada

Maxxim Medical Canada Limited

Al Todd

Human Resources Director

2460 S. Sheridan Way

Mississauga, ON L5J 2M4

Canada

Gwen Randall

421 Seventh Ave., SW

Calgary, AB T2P 4K9

Canada