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Office of the Election Supervisor for the International Brotherhood of Teamsters

 

 

 

 

 

 

 

 

 

 

 

              October 7, 1996

 

 

VIA UPS OVERNIGHT

 


Doug Mims

October 7, 1996

Page 1

 

 

Doug Mims, Vice President

International Brotherhood of Teamsters

2540 Lakewood Avenue, S.W.

Atlanta, GA  30315

 

Bob Dupuis, Line Haul Supervisor

Consolidated Freightways

3925 Singleton Boulevard

Dallas, TX  75212

 

Arthur Hackworth

Consolidated Freightways

175 Linfield Drive

Menlo Park, CA  94025


James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

 

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48098

 

Ron Carey Campaign

c/o Nathaniel Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY 10036


Doug Mims

October 7, 1996

Page 1

 

 

Re:  Election Office Case No. P-982-LU745-SOU

 

Gentlemen:

 

Doug Mims, an International vice president for the Southern Region and a candidate for reelection, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (Rules) alleging that Consolidated Freightways Motor Freight (CF) violated the Rules by denying him access to its Dallas terminal on September 12, 1996, after having permitted access to James P. Hoffa, a candidate for general president, in May.

 

CF responds that it has a strict policy against access to its premises by non-employees and that Mr. Mims did engage in some campaigning on its premises, although his time there was shorter than Mr. Hoffas.  It offers to post notices reiterating its policy against non-employee access.

 

This protest was investigated by Regional Coordinator Dolores C. Hall.


Doug Mims

October 7, 1996

Page 1

 

 

Mr. Mims alleges that he tried to campaign at CFs Dallas facility with Yellow Freight retiree David Cobb.  He states that he entered the building and spoke with several persons about getting directions to the road drivers break room.  Two persons gave him directions, which he states, indicated to me that other candidates for office had been allowed to enter the premises and campaign without harassment.  Although he states in his protest that [w]e were in non-work areas during non-work times when CF ordered him off the premises, he admitted in an interview with the Regional Coordinator that he did campaign on the facilitys dock and that workers stopped work and came to the far end where he was standing.  Messrs. Mims and Cobb were ordered off the premises by Line Haul Supervisor Bob Dupuis, who said, Its company policy; we dont allow anyone to campaign inside the gate area.  The investigation disclosed that their improper campaigning on CFs premises lasted between five and 10 minutes.

 

Mr. Mims bases his charge of unequal access on prior campaigning at the facility by Mr. Hoffa.  The investigation revealed that Mr. Hoffa visited the facility with other unidentified persons on May 24, 1996.  Notice of the visit had been posted on at least one bulletin board two or three days before.  CF admits that on arrival, Mr. Hoffa was escorted to the CF office and met management officials.  CF also acknowledges that Mr. Hoffa campaigned on the facilitys dock, although it states that his presence on the dock violated company policy.  Several witnesses also state that they saw Mr. Hoffa in both break rooms at the facility:  the break room on the dock and the line hall drivers break room.  Mr. Hoffa and his group were escorted through the facility by a Local Union 745 steward named Karen, who works in the CF office and joined Mr. Hoffas group when Mr. Hoffa met with management at the beginning of his visit.

 

CF submitted a copy of its policy against non-employee campaigning to the Election Officer and states that enforcement is strict.  The policy allows for non-employee campaigning in CFs parking lot as required by Article VIII, Section 11(e) of the Rules, but it otherwise provides that [i]n areas other than employee parking lots, employers generally may refuse non-employees entry on to Company property . . . .  Assistant Terminal Manager Patrick Jenkins states that he and Terminal Manager Bob Nieuwenhuis were asked by Local

Union 745 Business Agent Tyson Johnson about CFs campaigning policy before Mr. Hoffas visit and that Mr. Johnson was told that Mr. Hoffa would have to restrict his campaigning to the parking lot.  Mr. Jenkins also states that when he learned that Mr. Hoffa was on the dock, he immediately went there and advised the group to go to the parking lot.  He states that the group did so.  Freight Operations Manager Darryl Lyon states that he escorted Mr. Hoffa off the dock from the 150 door and asked Mr. Hoffa to go to the parking lot if he wished to continue campaigning.

 


Doug Mims

October 7, 1996

Page 1

 

 

The Election Officer finds, however, that Mr. Hoffas campaign activity inside the CF facility was substantial.  The undisputed evidence is that Mr. Hoffa campaigned on the dock, in the yard and in both break rooms.  Campaigning on the dock took place from at least the 61 door to the 150 door at the end, which indicates that Mr. Hoffa had access to at least half of the long dock at the facility.  The Election Officer also notes a conflict in testimony as to whether Mr. Hoffa actually went to the parking lot after leaving the dock or whether he was permitted to continue campaigning in the yard.  The Election Officer finds that Mr. Hoffa campaigned on CF premises for about one hour.

 

The Rules generally do not give candidates or members the right to campaign on employer premises (other than in the parking lot), unless there is a pre-existing right.  Thus, Article VIII, Section 11(d) states:

 

[N]o restrictions shall be placed upon candidates or members preexisting rights to solicit support, distribute leaflets or literature, . . . 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 nondiscriminatory basis.

 

The Election Officer has repeatedly stated that [i]f an employer chooses to allow campaigning on their premises, it may do so as long as equal access is provided to all candidates pursuant to Article VIII, Section 11(d).  Thus, the Election Officer ordered equal access on very similar facts in Mee, P-819-LU630 et seq. (July 31, 1996), where an employer had permitted a candidate to campaign on its premises despite a policy against non-employee access, but later ejected another candidate who sought the same opportunity.  The Election Officer also ordered equal access in Burrows, P-118-LU70-CLA (September 13, 1995), affd, 95 - Elec. App. - 16 (KC) (September 30, 1995), where an employer permitted campaigning on premises as a one-time event caused by the mistake of a newly hired guard.  See Rud,

P-766-LU320-NCE (July 30, 1996) (no violation where non-employees campaigned on school district premises under pre-existing right, and unequal access not alleged).

 

In this matter, the Election Officer recognizes that CFs policy against non-employee campaigning is based on its legitimate property interest in restricting non-employee access to its premises.  The Election Officer finds, however, that CF knowingly permitted Mr. Hoffa to campaign throughout its facility, not just in the parking lot.  CF acted to remove Mr. Hoffa from the dock, but only after Mr. Hoffa had been able to walk at least half its length while campaigning.  Thus, the Rules require CF to provide equal access to all candidates . . . on a nondiscriminatory basis.  In view of Mr. Hoffas status as a candidate for IBT general president, the Election Officer will order equal access for Mr. Carey or his designate.

 

As in Mee, supra, a second issue raised in this protest is whether CF, when it knowingly permitted Mr. Hoffas campaigning, in fact created a pre-existing right to campaign for other candidates for the duration of the International officer election.  On this issue, the Election Officer credits the statements of CFs management that it otherwise strictly enforces its policy against non-employee access.  The investigation did not disclose other exceptions.  Thus, the Election Officer does not find a pre-existing right to campaign has been created.  The opportunity for Mr. Carey or his designate to campaign will be limited to a single time.

 

For the foregoing reasons, the protest is GRANTED.


Doug Mims

October 7, 1996

Page 1

 

 

When the Election Officer determines that the Rules have been violated, she may take whatever remedial action is appropriate.  Article XIV, Section 4.  In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process. 

 

In this matter, the Election Officer notes that Mr. Mims was able to campaign on CFs premises, including the dock, for five to 10 minutes before he was asked to leave.  The Election Officer finds that Mr. Mims campaigning should be taken into account in fashioning an equal access remedy for Mr. Carey or his designate, in order to respect CFs interest in limiting potential interference with its operations.

 

Accordingly, the Election Officer orders the following:

 

1.  Consolidated Freightways shall permit Mr. Carey or his designate to campaign on the premises of its Dallas facility for one-half hour on or before October 16, 1996.  Such campaigning may take place in the two break rooms, in the yard and on the dock.

 

2.  If Mr. Carey or his designate decides to take advantage of this opportunity, he or she shall give not less than 24 hours advance notice to Consolidated Freightways of when the campaigning will take place, and such notice shall be given at the same time to the Election Officer.

 

3.  No later than three (3) days after Mr. Carey or his designee campaigns at the Dallas facility of Consolidated Freightways, pursuant to this decision, or no later than October 19, 1996, if the opportunity is not used, Consolidated Freightways shall file an affidavit with the Election Officer demonstrating compliance with this decision.

 

An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the RulesIn Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).

 

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

 


Doug Mims

October 7, 1996

Page 1

 

 

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 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

Dolores C. Hall, Regional Coordinator