Protest Decisions

October 12, 1995

VIA UPS OVERNIGHT

Jim Benson

October 12, 1995

Page 1

Jim Benson

October 12, 1995

Page 1

Re:  Election Office Case No. P-125-LU104-RMT

Gentlemen:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Jim Benson, an International vice president at large.  Mr. Benson alleges that Bob Justus, a member of Local Union 104, distributed campaign materials for James Hoffa, a candidate for general president, while working for NationsWay Transport (“NationsWay”), in violation of the Rules.  In addition to Mr. Justus, Local Union 104, NationsWay, and the “Hoffa Campaign” are charged in Mr. Benson’s protest. 

Regional Coordinator Jonathan Wilderman conducted the investigation.

Mr. Justus is, on an occasional basis, employed as an over-the-road truck driver by NationsWay.  A terminal facility is operated by NationsWay near the intersection of

Jim Benson

October 12, 1995

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33rd Avenue and Encanto Boulevard in Pheonix, Arizona, just around the corner from a terminal maintained by Overnite Freight Lines (“Overnite”).  At the time the protested activity occurred, the IBT was engaged in a national organizing drive of Overnite employees.  It maintained an “organizing center” on Encanto Boulevard, near the Overnite and the NationsWay facilities, and conducted organizational support activity from that location.

It is the practice of NationsWay to instruct its drivers to begin their Phoenix runs by traveling south on 33rd Avenue and east on Encanto Boulevard in order to reach all points east or west of Pheonix.  These instructions result in all eastbound or westbound trucks passing both the Overnite facility and the IBT organizing site.

Approximately one week prior to July 25, 1995, Mr. Justus visited the Overnite organizing site.  Mr. Justus stated that the purpose of this visit was to give “moral support” to the personnel assisting with the organizing effort.  At the time of the visit, he was driving his personal vehicle.  He met Ralph Clifford, who had volunteered to help staff at the site on that particular morning.  Mr. Clifford is a retired IBT member, having worked for over 39 years for the ABF Freight system and its predecessors.  Mr. Justus was acquainted with

Mr. Clifford, as they had worked together during a four- or five-year period in the 1970s. 

The two men briefly discussed Mr. Hoffa’s candidacy.  Mr. Clifford stated that “politics wasn’t wanted on the line.”  Mr. Justus then asked Mr. Clifford whether he would be interested in reading Hoffa campaign literature.  Mr. Clifford responded that he was “open- minded” and would read it.

On July 25, 1995 at approximately 6:45 a.m., Mr. Justus again appeared at the Overnite organizing site.  Mr. Clifford was present, as were fellow volunteers Homer Collom and Eric Guido.

Mr. Justus approached the organizing site as he headed eastbound in a NationsWay truck. He had previously agreed to drive the vehicle to Los Angeles, and was just beginning the trip.  Mr. Justus parked the vehicle opposite the organizing site, climbed out of the cab and ran up to Mr. Clifford.  Upon reaching Mr. Clifford, Mr. Justus handed him campaign literature supporting Mr. Hoffa.  Mr. Clifford then stated that he was not interested and returned it to him.  Mr. Collum stated that “this was not a political arena,” and suggested to

Mr. Justus that he leave and take his materials with him.  Mr. Justus reports that Mr. Collum “raised hell” and cursed him.  Mr. Clifford recalls that before he left Mr. Justus stated, “You guys are the reason we are divided.”

All witnesses agree that these events transpired over a period of less than a minute.  Mr. Justus immediately returned to his vehicle and resumed the discharge of his duties.

The Rules, at Article VIII, Section 11(b), provide that all union members, including officers and employees, retain the right to participate in campaign activities, including the right to openly support any candidate.  See also, Republic Aviation Corporation v. NLRB, 324 U.S. 793 (1945); Mack’s Supermarkets, Inc. 288 NLRB No. 123 (1988).  Article VIII, Section 11(a) provides in pertinent part:

Jim Benson

October 12, 1995

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No candidate or member may campaign during his/her working hours.  Campaigning incidental to work is not, however, violative of this section.  Further, campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is also not violative of this section.

From these facts, the Election Officer fails to find a basis for a violation of the Rules.  Supporting her conclusion is a decision promulgated by the prior Election Officer in Benson, Election Office Case No. Post-67-LU104-RMT (April 16, 1991).  In Benson, the protester objected to a member’s use of his CB radio to gather support for candidates.  The decision held:

Campaigning incidental to work is not, however, violative of this section.  There is no . . . evidence that Mr. Brasch failed to perform his work for his employer, deviated from his prescribed route, interfered with his or anyone else’s work, or otherwise acted inconsistently with his job obligations because he used the CB radio.

In the instant case, Mr. Clifford candidly admits that he told Mr. Justus that he would read the literature.  The stop was not a deviation of Mr. Justus’ prescribed route.  There was no interference with his or anyone else’s work, and the entire event took less than a minute.  Although Mr. Justus engaged in campaigning, the circumstances and duration make such campaigning incidental to his work.

Accordingly, the protest is DENIED.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.   The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:               Kenneth Conboy, Election Appeals Master

Jonathan Wilderman, Regional Coordinator