October 13, 1998
VIA FIRST CLASS MAIL
Kenneth E. Hilbish
October 13, 1998
Page 1
Kenneth E. Hibish, President
Teamsters Local Union 528
2540 Lakewood Avenue, S.W.
Atlanta, GA 30315
Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
David L. Neigus
Acting General Counsel
Int’l. Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Doug Mims
1645 Brantford Drive
Tucker, GA 30084
David A. Eckstein
35 E Street, NW #110
Washington, DC 20001
Martha Wolfoort, Esq.
Marie Chopra, Esq.
James & Hoffman
1146 19th Street, NW
Washington, D.C. XXX-XX-XXXX
Kenneth E. Hilbish
October 13, 1998
Page 1
Re: Election Office Case Nos. PR-183-IBT-EOH
PR-198-L728-EOH
Gentlemen:
Kenneth E. Hilbish, the president of Local Union 528, filed two pre-election protests pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Tom Leedham, a candidate for general president, Warehouse Division Director and International vice-president, and David Eckstein, a candidate for International trustee and the IBT Director of Field Services and Local Union 728. In PR-183, the protester alleges that Mr. Leedham scheduled a trip and meetings in Atlanta as a pretext for himself, Mark Junod, an assistant in the IBT Warehouse Division, and Mr. Eckstein to go to Georgia for campaign purposes, thereby using union resources to campaign. In PR-198, the protester alleges that Local Union 728 used union resources to finance a rally to assist Mr. Leedham’s campaign.
The charged parties deny using union resources to campaign, and contend that they engaged in legitimate union business. Further, Messrs. Leedham and Junod admit campaigning in Georgia, but state that any campaigning occurred on non-work time and that they took vacation leave to campaign.
Kenneth E. Hilbish
October 13, 1998
Page 1
These protests were investigated by Adjunct Regional Coordinator Maureen Geraghty. The protests have been consolidated because they arise from the same factual situation.
As the Director of the Warehouse Division, Mr. Leedham is the co-chair of the Kroger Negotiating Committee which commenced in the Spring of 1998. On July 16, 1998,
Mr. Leedham issued a written notice to the Kroger local unions advising them of a July 30, 1998, meeting in Atlanta, Georgia. The meeting was precipitated by Kroger’s announcement of the sale of a distribution center, which impacted the negotiations. Atlanta was chosen as the site for the meeting because of its travel convenience and it is near Kroger local unions.
Mr. Leedham used vacation leave to campaign from July 24-28, 1998. On July 28,
Pete George, a member from Local Union 391, drove Mr. Leedham from North Carolina to Augusta, Georgia, making campaign stops on the way. In Augusta, Mr. Leedham was met by John Garrett, an IBT International representative, who drove him to Atlanta. Mr. Leedham arrived in Atlanta around 9:30 p.m. and checked into a hotel using his union credit card to pay.
On July 29, 1998, Mr. Leedham campaigned at several locations from 4:30 a.m. until
9:00 a.m. He then returned to the hotel and prepared for the Kroger negotiations scheduled to begin at 4:00 p.m. At 3:30 p.m., he met with Mr. Junod and Scott Wilkins, a business agent for Local Union 89 and a co-chair for the Kroger negotiations, to finish preparations. The negotiations with Kroger lasted from 4:00 p.m. until 10:00 p.m. Mr. Leedham did not take any vacation time on July 29, 1998, and he paid his hotel bill with his union credit card.
On July 30, 1998, Messrs. Leedham and Junod campaigned from 4:00 a.m. until
9:00 a.m. Mr. Eckstein flew to Atlanta for the scheduled meeting. The Field Services Department, which he directs, has been developing a corporate campaign strategy to complement the Kroger negotiations. Messrs. Leedham, Junod and Eckstein met with the Kroger local union leaders from 12:00 p.m. to 4:00 p.m. to discuss negotiations. Mr. Leedham conducted the meeting during which Mr. Eckstein presented the corporate campaign strategy and distributed related Field Services pamphlets and resource materials. Messrs. Eckstein and Junod returned to Washington, D.C. after the meeting ended on July 30.
Following the meeting, Mr. Leedham campaigned until around 9:30 p.m. He took four hours vacation time on July 30, 1998, and paid for his hotel room with his union credit card.
The IBT decided that UPS local unions should hold rallies on July 31, 1998, the one-year anniversary date of expiration of the previous UPS agreement, to publicize the company’s failure to abide by all provisions in the new collective bargaining contract. As a UPS local union, Local Union 728 scheduled a rally at the UPS Pleasantdale facility from 7:30 a.m. until 11:30 a.m. Local Union 728 provided hot dogs and drinks and set up a literature table. There were no speakers.
Kenneth E. Hilbish
October 13, 1998
Page 1
Approximately one week before the UPS rally, Joyce Mims, a Leedham Slate Southern region campaign coordinator and wife of Doug Mims, a candidate on the Leedham Slate, called Richard Black, the secretary-treasurer for Local Union 728 and rally organizer, and told him that
Mr. Leedham wanted to attend the UPS rally because he was going to be in Atlanta for Kroger negotiations. Mr. Black told her that the rally was open to all IBT members.
On July 31, 1998, Mr. Leedham and Mr. Mims arrived at the UPS Pleasantdale facility at 7:00 a.m. and campaigned at the entrance to the parking lot. Around 8:30 a.m., they put the campaign literature in Mr. Mims’ vehicle and went into the rally. They attended the UPS rally for two hours while Mr. Leedham talked with the members about the company’s failure to abide by its contractual agreement to hire 10,000 full-time employees. He also spoke to the news media and stated the IBT’s position that UPS failed to live up to its promise to hire 2,000 new employees during the first year of the new agreement.
At 11:00 a.m., Messrs. Leedham and Mims left the rally and drove to Jacksonville, Florida and continued campaigning for the remainder of the day. Mr. Mims took eight hours vacation time on July 31. Mr. Leedham stated he worked two hours at the rally as an official representative of the IBT and took six hours vacation time for that day.
The IBT vacation policy states that employees may take vacation time to campaign, but that employees may not take leave in less than one hour increments. Department directors, such as Messrs. Leedham and Eckstein, do not have to apply for leave; instead, they are required to submit monthly reports recording vacation time.
The IBT confirmed that the last report submitted by Mr. Leedham, submitted on
July 17, 1998, covered the month of January, 1998. As of June 30, 1998, the IBT records indicated that Mr. Leedham had 438 hours of leave. The IBT has no record of how much vacation time Mr. Leedham has taken during the period of February through August, 1998.
Mr. Leedham agrees that the January 1998 report was the last one he had filed with IBT.
The Election Officer has already found that Mr. Leedham was engaged in legitimate union business, not campaign activity, in his opening of the Kroger negotiations and will not revisit the issue. Eckstein, PR-135-IBT-SCE (August 14, 1998) at 26, aff’d, 98 - Elec. App. - 369 (KC) (September 8, 1998). Although Mr. Leedham arrived in Atlanta, Georgia, the night of July 28, 1998, his preparations for and participation in Kroger negotiations on July 29 lasted until 10:00 p.m.. Further, Mr. Leedham conducted the Kroger meeting from 12:00 noon to 4:00 p.m. on July 30, 1998. Accordingly the expenditures of union monies for a hotel room on July 28 and 29, 1998 a legitimate expenditure for union business under the Rules.
Kenneth E. Hilbish
October 13, 1998
Page 1
While participation in “campaign activity” is guaranteed to all members by Article VIII, Section 11(a), using union funds and union resources to campaign is prohibited. See, Rules, Article VIII, Section 11 and Article XII, Section 1(b)(3). The Election Officer has found the use of union funds to pay for hotel rooms and travel expenses for campaign activities to be a violation of the Rules. Swannie, PR-099-LU31-PNW (August 14, 1998).
While article VIII, Section 11(a) of the Rules prohibits campaigning during working hours, campaigning incidental to work is not, violative of this section. Campaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is also permissible. A candidate is not prohibited by the Rules from campaigning merely because he is traveling on union-paid business, as long as such campaigning does not take place during working hours or does not otherwise involve the use of union funds or resources. Sullivan, P-052-LU14-SCE (December 12, 1995), aff’d in rel. part, 96 - Elec. App. - 55 (KC) (January 17, 1996); Passo, PR-084-LU705-NCE (May 21, 1998).
The protester bears the burden of proof to present evidence that a violation has occurred. Rules, Article XIV, Section 1. The Election Officer has consistently denied protests when the protester offers no evidence to corroborate and support his allegations. Hoffa, PR-043-LU385-SCE (January 9, 1998).
The protester presented no further evidence to support his allegations that the meeting was a pretext for Mr. Leedham to campaign in Georgia. Accordingly, Mr. Leedham’s travel to Atlanta and his hotel bill and expenses for July 28-29, 1998 are legitimate union expenses and appropriate under the Rules.
On July 30, 1998, Mr. Leedham conducted the meeting with the Kroger local union leaders from 12:00 to 4:00 p.m. Instead of returning to Washington, D.C. following the meeting like Messrs. Eckstein and Junod, he took four hours vacation leave and stayed to campaign.
On July 31, 1998, Mr. Leedham attended a rally held by Local Union 728 at the UPS Pleasantdale facility where he discussed the labor dispute between the IBT and UPS. Local Union 728 did not invite Mr. Leedham nor was Mr. Leedham sent by the IBT to act as a representative at the rally. Mr. Leedham did not speak at the rally and no other speakers were scheduled.
At 11:00 a.m., Messrs. Leedham and Mims drove to Jacksonville, Florida to campaign.
Mr. Leedham counted the two hours at the rally as work time and took 6 hours of vacation leave on July 31. Mr. Mims, who spent the day with Mr. Leedham, took 8 hours of leave for July 31.
The Election Officer finds that Mr. Leedham’s attendance at the Local Union 728 UPS rally was not legitimate union business, but campaign activity. Neither the local union nor the IBT requested that Mr. Leedham attend the event; indeed, it was Mr. Leedham’s campaign that initiated his participation. Mr. Leedham is not an elected representative from the region and does not work for the Small Parcel Division at the International.
Kenneth E. Hilbish
October 13, 1998
Page 1
Mr. Leedham stated he was discussing UPS employee issues with the members at the rally. While such discussions are not direct campaign activity, the effect of a candidate spending time with members and responding to their concerns certainly furthers that candidate’s campaign. Mr. Leedham’s failure to take 8 hours of leave on July 31 is an improper use of union resources under the Rules. Because Mr. Leedham’s union business in Atlanta concluded the afternoon of July 30, 1998, use of union funds to pay his hotel bill is also a violation of the Rules.
Mr. Eckstein attended the Kroger local union leader meeting on July 30, 1998, flying to Atlanta and back the same day for the meeting. Mr. Eckstein participated in legitimate union business in Atlanta in presenting strategies for the corporate campaign to the local union leaders in conjunction with the Kroger negotiations. No evidence has been presented to support the allegation that Mr. Eckstein campaigned at all during that visit to Atlanta. His use of union time and resources on July 30, 1998, was legitimate under the Rules.
Mr. Junod traveled to Atlanta on July 29, 1998, in time for the Kroger negotiations. He stayed over the night of July 29, and, after campaigning with Mr. Leedham the morning of July 30, attended the meeting with the Kroger local union leaders on negotiation strategy.
Mr. Junod left immediately after the meeting on July 30. His trip was narrowly tailored to allow him to attend the negotiations and the local union leaders meeting. His campaigning for
Mr. Leedham was incidental to the legitimate union business in which he engaged. Mr. Junod’s use of union time and resources was legitimate under the Rules.
The protester alleged that Local Union 728 used union resources to campaign for
Mr. Leedham during its July 31, 1998, UPS rally. The rally held on July 31, 1998, by Local Union 728 resulted from an IBT General Executive Board resolution that called for local unions to hold rallies on that date to protest UPS’s failure to abide by a negotiated agreement to provide 2,000 full-time positions. The local union set up a tent and provided refreshments and a literature table. The local union did nothing to promote Mr. Leedham’s campaign. Mr. Leedham has a right to campaign outside of union meetings and Local Union 728 allowed him to exercise that right. See Rules, Article VIII, Section 11(a). Local Union 728 did not use union resources to campaign for Mr. Leedham.
Accordingly, these protest are hereby GRANTED in part; and DENIED in part.
When the Election Officer determines that the Rules have been violated, he “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.
The use of union resources, through either expenditures or union time, is a serious issue.
Kenneth E. Hilbish
October 13, 1998
Page 1
Mr. Leedham’s compliance with the Rules regarding his use of vacation time cannot be verified because he has not completed his monthly expense reports since January, 1998.
The Election Officer, therefore, orders the following:
- By October 19, 1998, Mr. Leedham must complete his expense reports for all months through September 1998, and shall submit completed copies of the reports to both the IBT and the Election Office.
- Mr. Leedham will take a total of eight hours of vacation leave on July 31, 1998, and include that on his submitted reports.
- By October 19, 1998, Mr. Leedham will reimburse the IBT for the cost of his lodging on July 30, 1998, and $4.82, a room service charge from July 31, 1998.
- Within five (5) days of the reimbursement, Mr. Leedham will provide a copy of the check given to the IBT for reimbursement along with an affidavit demonstrating his compliance of this order.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) 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, 444 North Capitol Street, NW, Suite 445, Washington DC 20001,
Kenneth E. Hilbish
October 13, 1998
Page 1
Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Maureen Geraghty, Adjunct Regional Coordinator