IN RE: JOHN HOESLY,
Protest Decision 2000 EAD 21
Issued: September 15, 2000
OEA Case No. PR080801MW
John Hoesly, a member of Local 916, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules")against Local 916. The protest alleges that on or about July 28, 2000, Local 916 business agent improperly visited the Atlanta, Illinois facility of USF/Holland on paid union time for the sole reason of soliciting signatures on Hoffa slate petitions.
Election Administrator representative Dennis M. Sarsany investigated the protest.
Findings of Fact
USF/Holland employs John Hoesly at its Atlanta, Illinois facility. He filed this protest based upon discussions with co-employee and Local 916 member Fred Eitenmiller. Hoesly had no direct knowledge of the facts underlying the protest, and relied upon the testimony of Eitenmiller,
USF/Holland employs Eitenmiller as a city driver at the Atlanta facility. He is a supporter of the Leedham slate. He stated that on or about July 28, 2000 (Eitenmiller is as unsure of the exact date) he observed Local 916 business agent Dave Rush enter the terminal facility at approximately 9:45 a.m. At around 10:00 a.m., Eitenmiller saw Rush enter the driver's break room, place Hoffa petitions on a table and ask the drivers in the room to sign them. Eitenmiller claims that he chided Rush about campaigning on union time, and that after a few minutes Rush picked up the petitions and left the break room. Eitenmiller stated that Rush was still at the facility when Eitenmiller left to make his morning route, between 11:15 and 11:30 a.m.
According to Eitenmiller, Rush was a former USF/Holland city driver who had recently become a business agent for Local 916. Eitenmiller claims that Rush was assigned to construction-related members of Local 916 and that Leo Carroll, the freight business agent, had responsibility for the Atlanta terminal. Therefore, according to Eitenmiller, Rush had no legitimate union business at the USF/Holland terminal and was there solely for campaign purposes.
Rush admits that he visited the USF/Holland facility on or about July 28, 2000, and admits that during his visit he left petitions in the break room to for members of Local 916 to sign.
Rush stated that his assignments as a Local 916 business agent include responsibilities across a broad range of Local 916 employers. He admitted that his responsibility included members in construction-related activities, but stated that construction is a very small part of Local 916's jurisdiction and is only a small part of his job responsibility. Until he had become a business agent, USF/Holland employed him at its Atlanta facility.
According to Rush, on the day in question he was sent to the Atlanta facility by Carroll to discuss contractual provisions relating to seniority and overtime, and to answer questions raised by members employed by USF/Holland about their effect. Rush states that before the time scheduled for his meeting with the members who had requested the contract clarification, he went to the employee break area, where USF/Holland employees approached him and asked him about the IBT campaign. Rush states that when he mentioned the Hoffa petition drive, some members expressed a desire to sign the petitions, and that he secured them from his vehicle, returned and gave them the petitions. While in the break room, Rush admits that Eitenmiller approached him. He states that during a ten-minute conversation Eitenmiller chided him for campaigning on union time. After the conversation, Rush states that he left the break room to seek out the employees he was to call upon. He states that he remained at the Atlanta facility for a couple of hours conducting union business and then left (with the signed petitions).
Tony Barr is Local 916 president; Carroll is his executive assistant. According to Barr, Rush is a recently hired business agent who replaced a staffer who was primarily assigned to the construction-related membership. However, in recent years, according to Barr, construction-related activities among Local 916 members had become minimal. Thus, Rush was not limited to this area of activity, but given a broad range of responsibilities. The fact that he was the business agent with lowest seniority also acted to make his area of responsibility multi-faceted.
Carroll admitted to having responsibilities as the freight business agent. He also admitted that he directed Rush to visit the Atlanta facility on July 28, 2000, and stated that he did so primarily because Rush had been employed as a driver in that facility until recently and was familiar with the members employed there. Additionally, said Carroll, the Atlanta terminal is located near Peoria, Illinois, over an hour drive from the offices of the local, and could be more conveniently visited by Rush than Carroll. Carroll stated that he asked Rush to speak to members about seniority issues and overtime matters. Barr corroborated this. Further corroborating Rush's claim that legitimate union business brought him to the Atlanta facility on July 28 is the testimony of a member of the USF/Holland's office staff, who stated that Rush had, on more than one recent occasion, visited the terminal to conduct union business.
Analysis and Conclusion
Rush's delivery of Hoffa election petitions to employees in the USF/Holland break room on July 28, 2000 was admittedly campaign activity, and he concedes that he was on paid union time when he engaged in this activity. Therefore, this case raises two questions. First, was Rush's visit, as alleged by Hoesly and Eitenmiller, a pretext for campaigning? Second, even if it was not, did Rush violate Article XI, Section 1(b)(7)'s prohibition against campaigning for candidates "during time that is paid for by the Union…"?
As to the first question, we conclude that the reasons offered by Rush for his visit to the Atlanta facility on July 28 were not, as alleged, a pretext for campaigning. Rather, the evidence shows that Carroll directed Rush to visit the facility to conduct legitimate union business: a discussion with employees concerning contractual issues they had raised. As a former employee at that facility, Rush was familiar with the facility and its collective bargaining agreement, and had in fact visited it as a business agent/representative of the local on other occasions. Moreover, contrary to Eitenmiller's claim, the evidence shows that Rush's assignments were not limited to construction employers. We accordingly reject Hoesly's first allegation.
We also reject Hoesly's second allegation. Article VII, Section 11(b) of the Rules makes clear that "[a]ll Union officers and employees, if members, retain the right to participate in campaign activities, including the right to … openly support or oppose any candidate [and] to aid or campaign for any candidate…" While it is clear that the Rules require that "such campaigning must not involve the expenditure of Union funds," they also recognize that "[c]ampaigning incidental to regular Union business" is not prohibited. Article VII, Section 11(b); Article XI, Section 1(b)(7). See Viscomi, P683 (April 12, 1996). As held there, "[t]his is not the grant of an extra campaign right, but a recognition that conversations about elections, including campaign advocacy, may be a part of the everyday discourse that otherwise occurs at the workplace." Id.
Our investigation established that the campaign activity by Rush on union-paid time here was incidental to such regular union business. In assessing whether campaign activity falls within normal workplace interaction and is, therefore, "incidental," past cases have looked to the "absence of evidence that an employee failed to perform work, deviated from prescribed duties, or interfered with another employee's work." Viscomi, supra, citing Grossman, P476 (March 6, 1996); Raymond, P434 (March 14, 1996).
There is an absence of such evidence here. Thus, our investigation established that Rush did not fail to perform his legitimate union work on the day in question, did not deviate from his duties, and did not interfere with the work responsibilities of USF/Holland employees. Instead, Rush had a brief interchange with such employees in the break room during their break, and then he and the USF/Holland employees left that area to perform their respective work tasks.
Prior decisions have found that conduct of this type by a local union staff member does not violate the election rules. See Raymond, supra; Newhouse, P253 (January 4, 1996); Jackson, P842 (August 14, 1991); Draeger, P486 (February 20, 1991); Dillon, P467 (March 4, 1991). We likewise find here that Rush's campaign activity was incidental to his conduct of legitimate union business and thus not improper.
Based upon the foregoing, the protest is DENIED.
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 Administrator 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
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, c/o International Brotherhood of Teamsters, 25 Louisiana Ave., NW, Washington, DC 20001, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
Dennis M. Sarsany
2000EAD21
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Teamsters Local 916
Attn: David Rush
2701 North Dirksen Parkway
Springfield, IL 62702
John Hoesly
500 North Oklahoma Ave.
Morton, IL 61550