IN RE: JOHN ANDREWS, Protestor.
Protest Decision 2006 ESD 391
Issued: November 9, 2006
OES Case No. P-06-362-110706-HQ
John Andrews, a member of Local Union 728, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that local union funds were used to support the Leedham campaign by sponsoring and paying for a member appreciation cookout that was actually a Leedham campaign event.
Election Supervisor representative J. Griffin Morgan investigated this protest.
Findings of Fact
Local Union 728 sponsored and funded a "Local 728 Member Appreciation Cookout" that took place on November 2, 2006 from 3:00 p.m. to 9:00 p.m. on a grassy area immediately adjacent to the employee parking lot at the ABF Freight terminal in Conley, Georgia. Members of the local union who work at the ABF terminal were notified of the cookout by an official local union notice posted on union bulletin boards.
Protestor Andrews, an ABF employee, alleged that Doris Cash, a local union business agent and candidate for International Trustee on the Leedham slate, drove her personal vehicle, with magnetic Leedham slate signs attached, to the union event. He further alleged that Scott Webber, local union recording secretary and business agent and Leedham slate candidate for International vice president, drove his union-owned car, also with magnetic Leedham slate signs attached, to the event. Finally, Andrews alleged that the Hoffa slate was not notified in advance and provided an equal opportunity to campaign.
Andrews arrived at the terminal at approximately 12:00 p.m. on November 2. He left the terminal in his ABF truck at approximately 1:00 p.m. and was not present at any time during the cookout and did not witness any campaign activity.
James Walker, a Local Union 728 member and ABF employee, stated that he arrived at work at 3:00 p.m. on November 2. When he first arrived he observed Webber's car with Leedham slate bumper stickers and magnetic signs. Walker stated that the car was initially parked in the driveway leading to the employee parking lot and then was moved to a small parking lot next to the guard shack. This small parking lot is normally used by employees staffing the guard shack and job applicants who obtain applications at the guard shack. Walker also saw Cash's truck with its magnetic Leedham slate signs. He stated that the magnetic signs on the vehicles measured approximately 11 x 18 inches.
Walker stated he attended the cookout between 3:00 p.m. and 4:00 p.m. He stated that there was no official Local Union 728 sign at the cookout and no sign-in sheet for members to acknowledge they had received food paid for by the local union. Walker did not see any campaign material or observe any campaign activity at the cookout. No individuals at the cookout, including Cash and Webber, attempted to discuss the Leedham campaign or the International Officer election with him. Walker left the terminal driving his ABF truck at 4:00 p.m.
James Butler, another Local Union 728 member employed at ABF, stated that as he drove to work on November 2, he noticed more Leedham campaign material than he had seen previously posted on the telephone poles on the roads near the ABF terminal. Butler stated that he arrived at work at approximately 12:00 p.m. and left the terminal to start his route at 1:00 p.m. and was not at the terminal during the hours of the cookout. While at the terminal, Butler saw Webber's car and Cash's truck, both with magnetic Leedham slate signs, parked in the employee parking lot. He also noticed new Leedham slate campaign material in the employee break room. He did not see anyone distributing or posting the Leedham campaign material.
Randy Brown is the local union president. He stated that he approved use of Local Union 728 funds for the member appreciation cookout at ABF. Brown stated that in 2005 Local Union 728 sponsored similar member appreciation cookouts at the UPS Atlanta terminal and the UPS Pleasantdale terminal. UPS is the largest employer of Local Union 728 members. Brown further stated that a member appreciation cookout was held in September 2006 at the Yellow Freight terminal in Marietta, Georgia. Yellow is the second largest employer of Local Union 728 members, followed by ABF.
Brown stated the purpose of the cookout was to support the membership at ABF and to give the members at opportunity to speak with the business agents from the freight division. Brown attended the cookout at ABF. Also attending were local union secretary-treasurer Larry MacDonald and business agents David Garmon, Mike Dollar, Webber and Cash. MacDonald is a business agent serving the members at Yellow Freight. Garmon is the lead business agent for the freight division of the local union. Dollar is a business agent in the freight division. Cash is a business agent responsible for ABF road drivers, and Webber represents employees at ABF. Local Union 728 also assigns business agents to represent the employees of UPS; those agents did not attend the ABF cookout.
Brown stated that no campaigning took place at the cookout, no campaign material was distributed or posted there, nor did he witness any conversations regarding the International officer election or the Leedham campaign.
Brown stated Webber and Cash were working on union-paid time at the cookout. He confirmed that Cash's personal truck and Webber's union-owned car had Leedham slate campaign material affixed to them. Brown stated that he asked Cash to drive her personal truck on November 2 to pull Local Union 728's trailer loaded with tables and chairs used at the cookout.
Webber stated that he displays Leedham bumper stickers and magnetic signs on his union-owned car. He stated that the magnetic signs measure approximately 9 x 12 inches. He confirmed that he was working on union-paid time on November 2 and that the cookout was a local union event. Webber attended a pre-shift meeting at the ABF terminal at approximately 6:30 a.m. on November 2 and later met with shop stewards and management to discuss a new job category.
Webber stated he drove his union-owned vehicle to the cookout. He recalled that he parked his car in the small parking lot near the guard shack from 3:00 p.m. until approximately 7:00 p.m. He then went to purchase containers of hot coffee for the cookout. When he returned, he parked in the driveway leading to the employee parking lot, immediately adjacent to the cookout's location.
Webber stated he did not campaign during the cookout. He did not distribute campaign material, and he did not speak to the members about the campaign. He stated that he had a large Leedham campaign sign in the trunk of his car that he uses when he is campaigning but did not remove the sign from his car for the cookout.
Webber stated that Local Union 728 has sponsored similar membership appreciation cookouts at UPS and at Yellow Freight. He recalled that the cookout at Yellow was held in September or October of 2006 and that there were approximately three cookouts held at the UPS Pleasantdale terminal in 2005. Webber stated that the November 2 cookout at ABF was attended by the local union business agents assigned to freight.
Cash confirmed that she was working and paid by Local Union 728 on November 2. She attended the cookout because she is a business agent for the ABF road drivers. She confirmed that the local union previously sponsored membership appreciation cookouts at UPS in 2005 and at Yellow in September or October 2006. Cash recalled that the cookout was attended by freight business agents Garmon, Mac Donald, Dollar, Webber and local union president Brown.
Cash stated that she did not campaign during the cookout. She did not pass out campaign material. She did not ask people to vote for her or other members of the Leedham slate. She did not witness other individuals campaigning during the cookout.
Cash stated that she drove her personal truck to the cookout because she was asked to pull Local Union 728's trailer. After she dropped the trailer, she parked her truck in the employee parking lot for the duration of the event. She stated that the magnetic campaign signs on her truck measure 12 x 18 inches.
Analysis
Article VII, Section 12(c) of the Rules prohibits use of union resources "to assist in campaigning unless the Union is reimbursed at fair market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance." Article XI, Section 1(b)(3) and (6) similarly prohibit use of union resources to support campaign activity.
We find no evidence that an officer or business agent of Local Union 728 campaigned on behalf of the Leedham slate during the membership appreciation cookout sponsored by Local 728 on November 2, 2006. Likewise, there is no evidence that the membership appreciation cookout was anything other than a legitimate local union event undertaken for the purpose of supporting ABF members and permitting them to speak with freight business agents.
While business agents Cash and Webber drove vehicles that displayed Leedham slate campaign material to the event, Article VII, Section 12(c) expressly provides that union officers and employees with union-owed or leased cars can use them for campaign activities if otherwise afforded the right to utilize them for personal activities. This provision has been applied to permit union officers and employers to display partisan materials on such cars. Stroud, 2001 EAD 199 (February 27, 2001); Jordan, PR276 (September 29, 1998). Although union officers and employees are barred from wearing campaign emblems when meeting with employers or otherwise representing the union before third parties, the extension of this prohibition to vehicles has been rejected. Blake, P712 (April 29, 1996), aff'd, 96 EAM 185 (May 10, 1996).
This case contrasts with Richards, 2000 EAD 7 (August 1, 2000). There, predecessor officers and business agents of Local Union 728 used a similar cookout on employer premises to campaign. Election Administrator Wertheimer found that the local union violated the Rules by using "union resources, including the lure of free food and beverages, to solicit petition signatures supporting the candidacy of incumbent General President Hoffa and his slate." Here, there is no evidence of any campaign activity conducted during the cookout.
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 Supervisor 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
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 391
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
John Andrews
2154 Chevy Chase Lane
Decatur, MD 30032
Randy Brown, President
IBT Local Union 728
2540 Lakewood Avenue SW
Atlanta, GA 30315
J. Griffin "Griff" Morgan
Elliot, Pishko, Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com