Protest Decisions

January 27, 1999

VIA FIRST CLASS MAIL

Ashley Ann H. McNeely

January 27, 1999

Page 1

Ashley Ann H. McNeely

401 Kamakee Street

Suite 307

Honolulu, HI 96814

Robert Felechner

5624 Ewing Avenue S.

Edina, MN 55410

Hoffa Slate

c/o Patrick J. Szymanski, Esq.

Baptiste & Wilder

1150 Connecticut Avenue, NW

Suite 500

Washington, DC 20036

James P. Hoffa

2593 Hounds Chase

Troy, MI 48098

Bradley T. Raymond, Esq.

Finkel, Whitefield, Selik,

  Raymond, Ferrara & Feldman

32300 Northwestern Highway

Suite 200

Farmington Hills, MI 48334

Tom Leedham Campaign Office

P.O. Box 15877

Washington, DC 20003

Arthur Z. Schwartz, Esq.

Kennedy, Schwartz & Cure

113 University Place

New York, NY 10003

Billie Davenport, President

Teamsters Local Union 2000

2850 Metro Drive, Suite 225

Bloomington, MN 55425

Ashley Ann H. McNeely

January 27, 1999

Page 1

Re:              Election Office Case No. PR -419-LU2000-EOH

No. PR-438-LU2000-EOH

Gentlepersons:

Ashley Ann H. McNeely

January 27, 1999

Page 1

Related pre-election protests were filed by Ashley Ann McNeely and Bob Felechner, members of Local Union 2000, pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 International Union Delegate and Officer Election (“Rules”).  In PR-419, Ms. McNeeley alleges that on or about November 15, 1998, Mr. Felechner violated Article VIII, Section 11(d) of the Rules by removing campaign literature supporting Tom Leedham, a candidate for general president, that was posted on an auxiliary general purpose bulletin board for all flight attendants of Northwest Airlines (“Northwest”) at its Honolulu base.  In PR-438, Mr. Felechner maintains that there is no pre-existing right to post campaign literature on union bulletin boards that are located on Northwest’s property, and that Ms. McNeeley violated the Rules by either posting or allowing the Leedham campaign material to remain posted for several months.  Mr. Felechner also alleges that several hundred copies of two additional pro-Leedham campaign pieces were displayed on the counter below the bulletin boards and in the flight attendants’ crew lounge area along with Convoy Dispatch, TDU’s newsletter, in violation of the Rules.

The Election Officer deferred these protests for post-election review pursuant to his authority under Article XIV, Section 2(f)(2).

The protest was investigated by Election Office Staff Attorney Kathryn A. Naylor.

Ms. McNeeley has been the Honolulu base representative for Local Union 2000 since January 1998 and as such is responsible for maintaining the local union’s bulletin boards. 

Ms. McNeeley asserts that she did not personally post the pro-Leedham campaign literature on the gray auxiliary board.  Ms. McNeeley claims that the campaign material had been posted since at least sometime in August, 1998, when she first observed the posting, until it was removed by

Mr. Felechner in mid-November, 1998.  Ms. McNeeley stated that she has not observed campaign literature for any candidate in the rerun election posted on this board prior to the posting at issue in this protest. 

Ms. McNeeley contends that during her tenure as the Honolulu base representative, the auxiliary cloth-covered bulletin board has been treated as a general purpose board and is not considered an extension of the union’s official bulletin board, which is a locked glass enclosed bulletin board adjacent to the auxiliary board.  Ms. McNeeley claims that airline employees besides flight attendants, namely members of the Air Line Pilots Association (“ALPA”) and the International Association of Machinists (“IAM”) post material on the auxiliary board.  

Ms. McNeeley asserts that besides extra copies of notices for flight attendants, comic strips (related and unrelated to the airline industry), IAM meeting notices, ALPA meeting/social event notices, internal political union literature, various issues of Convoy Dispatch and Labor Notes, and information about labor-related issues at other airlines have been posted on the auxiliary board.  Ms. McNeeley maintains that the Honolulu Northwest Base Manager Robin Haddwick would agree with her assessment of the auxiliary board as general purpose, and that Mr. Haddwick had not instructed her to remove the pro-Leedham posting on the auxiliary board. 

Ms. McNeeley denies Mr. Felechner’s allegation that several hundred copies of two additional pro-Leedham campaign pieces were displayed on the counter below the bulletin boards or in the flight attendants’ crew lounge area along with issues of  Convoy Dispatch. 

Ashley Ann H. McNeely

January 27, 1999

Page 1

Mr. Felechner admits that he removed the Leedham campaign literature from the auxiliary bulletin board and left a message to this effect in Ms. McNeeley’s mailbox in the Honolulu Inflight Services Office.  Even though Mr. Felechner is based in Minneapolis and not Honolulu, Mr. Felechner maintains that Local Union 2000's collective bargaining agreement with Northwest and past practice prohibits the posting and distribution of campaign literature on company property worldwide.[1]  

Dotty Malinsky, a former officer with Local Union 2000 and a Central region vice-president, corroborated Mr. Felechner’s assertions that Northwest has consistently prohibited the posting of campaign literature on all its bases and that flight attendants are subject to progressive discipline for violating Section 22 of the collective bargaining agreement.  Ms. Malinsky noted that Northwest has threatened to remove the union’s bulletin boards because flight attendants had violated the posting restrictions. 

Salvatore Guadagni, the Honolulu base union representative during 1996 and 1997 for Local Union 2000 prior to Ms. McNeeley, stated that sometime after August 1996,

Mr. Haddwick agreed to allow the union to utilize the space on the wall adjacent to the union’s official bulletin board as an extension of the union’s official board for postings relating to negotiations.  Mr. Guadagni stated that the auxiliary board area is known as the “Contracts Corner” because only items relating to negotiations were posted on this board by himself or Negotiations Representative Richard Stone.  Mr. Guadagni claims that during his tenure, campaign material was never posted on the gray auxiliary board but only items relating to negotiations with Northwest were allowed on that gray board.

Julie Showers, the Director of Labor Relations for Northwest, stated that the use of auxiliary bulletin boards differ from base to base and that Mr. Haddwick would be the appropriate Northwest representative with knowledge regarding the past use of any auxiliary boards at the Honolulu base.

Mr. Haddwick stated that he did not recall observing any Leedham campaign literature posted on the gray auxiliary board during the rerun election campaign.  Mr. Haddwick stated that for the most part he has a hands-off approach to the material posted on this auxiliary board. 

Ashley Ann H. McNeely

January 27, 1999

Page 1

Mr. Haddwick stated that had he observed the campaign literature at issue, he would not necessarily have asked the protester to remove the material.  Mr. Haddwick stated that although not readily apparent, there are actually two gray bulletin boards and that the top board or portion is mostly devoted to negotiations while the bottom board is general purpose. 

Mr. Haddwick and Jan Burrows, a flight attendant manager, stated that they did not recall stacks of Leedham campaign material or the Convoy Dispatch either on the counter below the bulletin boards or in the crew lounge anytime during mid-November 1998.

The Rules at Article VIII, Section 11(d) provide that:

[N]o restrictions shall be placed upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on employer . . . premises.  Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.

Under the Rules, one source of “preexisting rights” is past practice at the employer, Brinkmann, P-151-LU305-PNW (September 18, 1995), aff’d, 95 - Elec. App. - 21 (KC) (October 10, 1995); In Re: Hall, 90 - Elec. App. - 1 (October 4, 1990), even if it has developed in the face of a contrary employer policy or a contrary provision in the collective bargaining agreement.  See Blake, P-953-LU848-CLA (October 30, 1991) (finding that past practice of unrestricted postings on local union bulletin board had created preexisting right to use board for campaigning, in spite of contrary provision in collective bargaining agreement).  To find such a past practice, however, the evidence must show knowledge and tolerance on the part of the employer.  Evidence of unauthorized and unknown incidents is insufficient.  In Re: Batham, 96 - Elec. App. - 225 (KC) (August 16, 1996) (requiring “concrete evidence that the employer representative at the site knew about and permitted” the activity alleged to constitute past practice).  See also, Doss, PR-344-LU952-EOH (November 18, 1998) aff’d, 98 - Elec. App. - 411 (KC) (November 30, 1998).

The Election Officer concludes that Northwest’s acquiesence in the posting of the Leedham campaign material for four months created a right to continue to post campaign literature on the auxiliary board at the Honolulu base.[2]   In this regard, the Election Officer considered the testimony of Mr. Haddwick, the Northwest Base Manager, that: (1) he has a “hands-off” approach to the material posted on the auxiliary board; (2) he would not necessarily have instructed Ms. McNeeley to remove the campaign literature had he observed the literature on the board; and (3) he considered the auxiliary board a general purpose board.  Therefore,

Ashley Ann H. McNeely

January 27, 1999

Page 1

Mr. Felechner’s removal of the campaign literature from the auxiliary board constituted a violation of the Rules. 

The Election Officer credits Ms. McNeeley’s denial, as corroborated by Mr. Haddwick and Ms. Burrows, that several hundred copies of pro-Leedham literature and copies of the Convoy Dispatch were displayed on the counter below the bulletin boards and in the crew lounge.

These matters are being considered in a post-election context.  Therefore, the Election Officer will examine whether the violations “may have affected the outcome of the election.”  As the Election Officer previously stated in Cheatem, Post 27-EOH (August 21, 1997),

[T]he Election Office concludes that this election is presumed to be fair and regular.  Therefore, in order to grant a post-election protest, the evidence must overcome this presumption by demonstrating a violation of the Rules that may have affected the outcome of the election.  This is consistent with DOL’s standard for certification of supervised elections.

Considering that Local Union 2000 has 475 members based in Honolulu and 10,765 members nationwide, Mr. Felechner’s removal of the Leedham campaign literature would not have affected the outcome of the election and the vote margin of approximately 54,485 between James Hoffa, the elected general president, and Mr. Leedham.

Based on the foregoing, the protests are DENIED.

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.  Request for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 100

New York, NY 10022

Fax: (212) 751-4864

Ashley Ann H. McNeely

January 27, 1999

Page 1

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, facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Michael G. Cherkasky

Election Officer

Enclosure

cc:              Kenneth Conboy, Election Appeals Master