IN RE: HOFFA UNITY SLATE,
Protest Decision 2001 EAD 539
Issued: November 2, 2001
OEA Case No. PR101214AT
The Hoffa Unity slate ("Hoffa slate") 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 Tom Leedham Rank & File Power slate ("Leedham slate"). The protest alleges that supporters of the Leedham slate campaigned inside the Miami, Florida facility of Consolidated Freightways ("CF") in an area where, as non-CF employees, they had no right under the Rules.
In 2001 EAD 516 (October 22, 2001), we granted the protest, finding that Leedham supporters had campaigned inside the drivers' break room, an area where, we found, there was no pre-existing right to campaign.
The Leedham slate appealed our decision, asserting that campaigning had occurred in that location many times over several elections. We reviewed evidence the Leedham slate supplied and, based on that review, withdrew our decision for further investigation. 2001 EAD 528 (October 29, 2001). The additional investigation has been completed, and we now reverse the decision rendered in 2001 EAD 516 and DENY the protest.
Election Administrator representatives Dolores Hall and Jeffrey Ellison investigated the protest.
Findings of Fact and Analysis
First, we summarize the facts we found in 2001 EAD 516 describing the conduct giving rise to this protest. Armadio Bianchi and Lucio Sierra, employees of Roadway Express, entered the drivers' break room at the CF Miami facility on October 11 after 6 p.m. They distributed videocassettes of the debate between Leedham and Chuck Mack to several drivers present. They were observed by Vernon Fisher, chief steward at the facility, who was engaged in a telephone conversation at that moment with Don Marr, secretary-treasurer of the local. When he finished his call, Fisher told Bianchi he was not allowed to distribute the tapes inside the building. Bianchi and Sierra then went outside, but they returned to the break room at least twice and discussed workplace issues and the International officer election as they did.
Bianchi and Sierra admit they entered the facility to campaign on the date in question.
Marr confirmed Fisher told him Bianchi was campaigning in the break room. The next day, Marr called Joseph D'Amelio, CF Miami terminal manager, to advise him of the incident. D'Amelio checked security videotape and observed Bianchi and Sierra distributing material.
Marr states that campaigning inside CF Miami and inside all other employers under the jurisdiction of the local union, CF and non-CF, is uniformly prohibited and that there is no contrary practice.
CF manager D'Amelio states he has been employed by CF for 21 years, the past year at the Miami facility, and that campaigning is prohibited everywhere on company property except the parking lot. He said the campaign ban is a fundamental known well by all supervisors; "it is Management 101," according to D'Amelio.
Jim Worsdale, facility manager at CF Miami from 1995 to 2000, echoed D'Amelio's statement that campaigning other than in the parking lot was prohibited.
Several rank-and-file members of Local 390 reported, contrary to the statements of Marr and the CF managers, that campaigning in the break room at CF Miami, CF Pompano Beach, and virtually all other employers under the jurisdiction of the local is now and has been permitted by management for years. Thus, Bianchi stated that he has campaigned in break rooms, CF Miami included, for most of a decade. He stated that the break room at CF Miami adjoins the dispatch area and that, on each occasion he has campaigned there, he has checked in with the supervisor on duty and then campaigned in view of that supervisor without objection or challenge.
Andy Fick, a candidate for local union office in the 1999 election, stated that he visited the CF Miami break room alone or with members of his slate 10 to 12 times in the three week period leading to the February 1999 election. He said the facility was convenient to other facilities where he campaigned, and he referred to the break room there as his slate's unofficial campaign headquarters, so frequent were their gatherings there. He said that being permitted to campaign in the CF Miami break room was typical of his experience in campaigning inside other employer facilities. "Ten times out of ten, nobody ever gave me a problem campaigning in a break room."
Scott Stubblefield, another candidate in the 1999 local officer elections, stated he visited the CF Miami break room to campaign several times without challenge as well. His practice, he said, was to tell the dispatcher he was there upon entering. He was never asked to leave.
Steve Zorich, a CF employee at its Pompano Beach facility, also had campaigned at CF Miami with knowledge of management and without challenge. He said non-CF employees campaigned at CF Pompano Beach without objection from management as well.
John Chase, office steward at CF Pompano Beach, confirmed that candidates frequently campaigned in the break room at that facility. Indeed, he stated that Don Marr and his slate campaigned in that break room during the delegate election. Keith Roth, a 32 year Teamster, confirmed Marr and his slate campaigned there, adding that campaigning inside the building has always been permitted. Ricardo Gonzalez, a CF Miami employee, stated Marr had asked drivers for their support when in the break room at that facility.
Chase reported further that, at Marr's request, he sold t-shirts, barbeque aprons and hats supporting James Hoffa and Tyson Johnson from his desk inside the facility. Chase said he periodically gave Marr the list of purchasers and the proceeds from the sales when Marr visited the facility. In particular, Chase states that, on or about October 23, when Marr concluded a meeting with management at the facility, he asked Chase if he had any campaign items yet unsold. Chase returned the items to Marr, and Marr proceeded to sell 2 t-shirts to Walt Hegeman while Hegeman was fork-lifting a delivery into a customer's vehicle in the work area of the facility.
Our investigator questioned Marr on the assertions he had campaigned inside employer premises. Marr emphatically denied doing so. Our investigator then asked, "Have you ever sold campaign material at an employer's facility, other than the employee parking lot?" Marr responded by saying, "I know exactly where you got that. John Chase sold those shirts, not me."
When our investigator followed up with Chase, Chase reported that Marr had confronted him about what Chase told our investigator. According to Chase, Marr asked why Chase claimed that Marr and his slate had campaigned in the CF Pompano Beach break room. Chase responded that Marr and the other members of his slate had come to the facility in the midst of the delegate campaign and sat in the break room for two and one half hours talking to drivers about the election. According to Chase, Marr replied, "We weren't campaigning. We just came by to say 'hi.' And it was after hours."
Marr admitted confronting Chase. He also admitted that he and members of his slate had visited the CF Pompano Beach break room. He could not recall when the visit occurred, but denied they were there to campaign.
Article VII, Section 11(d) protects "candidates' [and] members' preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on employer or Union premises. Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis." We have held previously that, where no pre-existing right to campaign inside an employer's facility exists, a non-employee campaigner who does so nonetheless receives a prohibited contribution from that employer by "appropriat[ing] a 'thing of value.'" Thompson, 2001 EAD 332 (April 30, 2001), aff'd, 01 EAM 73 (May 24, 2001).
Upon further investigation, we hold that Bianchi and Sierra did not violate the Rules by campaigning in the break room at CF Miami. We find that a pre-existing right, firmly established and of long standing, exists to campaign there. In reaching this conclusion, we credit the statements of Bianchi, Fick, Stubblefield, Vorich, Chase, Roth and Gonzalez. We note that top CF management has declared that such campaigning is forbidden by company policy, but we find that the policy, if it exists, is more honored in the breach than the observance. Finally, we reject the declaration by Marr that campaigning is prohibited inside CF facilities under Local 390's jurisdiction, finding that he has engaged in such activity himself without challenge or objection. Given his own conduct in this regard, we find it unfortunate that he has misrepresented the practice permitting campaigning and thereby misled the protestor into pursuing this protest.
Accordingly, we DENY this 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 539
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 3060
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
Todd Thompson
209 Pennsylvania Ave., SE
Washington, DC 20003
Matt Ginsburg
30 Third Avenue
Brooklyn, NY 11271
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, TX 75207
IBT Local 390
12365 West Dixie Highway
North Miami, FL 33161
Consolidated Freightways
Joseph D'Amelio
3355 NW 41st Street
Miami, FL 33142
Armadio Bianchi
1201 SW 128 Terrace
E-409
Pembroke Pines, FL 33027
Lucio Sierra
8330 SW 32 Terrace
Miami, FL 33155
Dolores C. Hall
1000 Belmont Place
Metairie, LA 70001
Jeffrey Ellison
65 Cadillac Square
Suite 3727
Detroit, MI 48226