IN RE: AVRAL THOMPSON and TOM LEEDHAM SLATE,
Protest Decision 2001 EAD 332
Issued: April 30, 2001
OEA Case Nos. PR040213MW, PR040214MW, PR040412MW, PR040515MW and PR040516MW
See also Election Appeals Master decision 01 EAM 73 (KC)
Avral Thompson, a member of Local 89, and the Tom Leedham slate filed pre-election protests pursuant to Article XIII of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). The Thompson protests allege improper campaigning on company time by Mark Smith, a delegate candidate on the Local 41 Rank and File slate, and improper campaign activity inside employer premises by International officer candidate Tom Leedham and others on April 2, 2001. The Leedham slate protest alleges improper surveillance of Leedham campaign activity by candidates on and supporters of the Zuckerman/Washburn Unity slate (the "Unity slate").
Election Administrator representatives Maureen Geraghty and Jason Weidenfeld investigated the protests.
Findings of Fact and Analysis
1. Allegation against Mark Smith. Protestor Thompson had no direct knowledge of the facts alleged in his protest concerning Smith. He referred our investigator to Bob Borchert, a Roadway employee who allegedly witnessed Smith campaigning on company time. Thompson stated that Roadway business agent Herman Veltman told him that Borchert had informed Veltman that Smith had asked Borchert to vote for him during work hours on work premises.
Borchert says that on March 28, 2001, he was assigned to go to the Blue Grass Industrial Park, which is Smith's work route area. The Blue Grass lot is not within Borchert's normal route. Borchert arrived in the parking lot about 4:00 p.m. and, after he parked his truck, began setting a device that allows a truck to pull a second trailer. While only one employee normally sets this device, it is not uncommon for employees to assist one another in the task. Borchert says Smith approached and began to help Borchert after finishing the same task on his own truck. Borchert admits Smith was helping him and did not claim this was unnecessary. As they worked, Smith asked Borchert to vote for him as delegate candidate. Borchert says Smith also criticized the current leadership in the local. It took the two less than ten minutes to complete their joint task. When they were finished, Smith walked away and resumed working on his own truck. Borchert did not observe Smith talking to anyone else about his candidacy or campaign related issues.
Article VII, Section 11(a) of the Rules provides that "[c]ampaigning incidental to work" is not proscribed by the Rules. In assessing whether campaign activity is incidental, we look to the absence of evidence that an employee failed to perform their work, deviated from prescribed duties, or interfered with another employee's work. Thompson, 2001 EAD 284 (March 30, 2001); Grossman, P476 (March 6, 1996); Jones, P100 (December 20, 1990), aff'd, 90 EAM 26 (December 28, 1990). We DENY this protest allegation because Smith's comments were at most incidental to the work that both he and Borchert were performing, and did not interfere with that work.
2. Allegations against the Leedham campaign. Thompson alleges that on April 2, 2001, Tom Leedham, Loretta DeVasier, Mark Smith and others campaigned inside work sites at Consolidated Freightways ("CF"), Holland Trucking and Porcelain Metals. He further alleges that on April 3 and 5 he contacted these companies on behalf of the Zuckerman/Washburn Local 89 delegate election slate requesting similar access and was told it would not be permitted. The Leedham campaign admits that Leedham and others campaigned inside company premises at these facilities on April 2. They did so without management permission and claim they remained on each of the premises for only a few minutes.
The investigation determined that Leedham and his supporters on the Rank and File slate campaigned in Local 89's jurisdiction on April 2. At Holland Trucking, Leedham, Nick Duran and David Thornsberry entered the terminal through an employee side door at approximately 6:05 p.m. and walked a few steps to the employee breakroom. They were looking for Holland employee Dale Ferguson. Ferguson is a Rank and File slate supporter and they were trying to find him to determine if they had missed the shift change. They were in the employee breakroom for no more than three to four minutes. While in the breakroom, Leedham shook a few hands and spoke about his campaign casually to the handful of employees who were in the breakroom. They distributed no literature. There were no management personnel in the breakroom and neither Leedham nor anyone on the Rank and File Slate obtained management permission to go in the breakroom. After a few minutes, John Sauers, a Holland employee and Local 89 member, said to the Leedham group, "Hey, you are not supposed to be in here." Leedham replied: "Well, we are used to having management tell us to leave, not members. But it's not a problem, we will leave". They then did so.
At CF, Leedham, DeVasier, Smith and Thornsberry arrived at about 7:00 am. It was raining very hard, so they all went up to stand on the dock area. After a few moments, an employee approached and asked them to come into the breakroom, which was three feet from where they were standing on the dock area. Leedham remained in the employee break room for about three minutes, campaigning among the handful of employees who gathered there. When they entered the breakroom, there were no management personnel there. After about three minutes, a dispatcher came into the room, and when he did the Leedham group left.
Leedham, Darryl Hall, DeVasier, Smith and Duran also went inside the premises at Porcelain Metals. When they arrived, the doors to the warehouse were open, and Leedham and the others walked in. There were only a handful of employees working there, and Leedham and the others began speaking informally to them about the campaign. No management personnel were present. An unknown employee approached and stated: "You need to go over across the street to the manufacturing area, where there are many more employees." DeVasier asked, "Would there be a problem with us going over there? The unidentified employee stated, "No, they let people go through there all the time." The group then walked over to the manufacturing area and another unknown employee stated "Wait, I will go get you guys safety goggles because goggles are required to enter the manufacturing area." Leedham and the others waited for safety goggles. As they did, a few employees approached and they gave the employees campaign literature. After about ten minutes, the safety goggles arrived, but there were not enough for everyone. Leedham and a few slate members then donned safety goggles and approached no more than two employees at their workstations to campaign. When the employees indicated they had already received campaign literature, Leedham and all of the Rank and File slate members concluded they had been at the plant too long and that they had to leave in order to arrive at the next campaign stop at shift change.
Thompson is an executive assistant to the president of Local 89. He is also a member of the Zuckerman/Washburn slate and an avid supporter of the Hoffa campaign. He says he received calls from stewards on April 3 and April 4 telling him that Leedham and various Rank and File Slate members had campaigned inside the premises at Holland, CF and Porcelain Metals on April 2. In response, Thompson called management officials at these companies and asked permission for members of the Zuckerman/Washburn Unity slate to do likewise. Each company denied granting Leedham permission to enter their premises and said that they had a clear policy against allowing campaigning inside their buildings. The access obtained by the Leedham campaign was not granted to the Zuckerman/Washburn slate.
We GRANT the protest. Article XI, Section 1(b)(2) bars an employer from contributing:
directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate. No candidate may accept or use any such contribution. … These prohibitions extend beyond strictly monetary contributions made by an employer and include contributions or use of employer stationery, equipment, facilities and personnel.
The campaigners who entered the three employer facilities on April 2 without the employer's knowledge took advantage of access to employees inside the facility. By entering the facility for campaigning purposes, the campaigners failed to follow each employer's policy prohibiting campaigning on its premises, except for the campaigning on employee parking lots that is permitted under Article VII, Section 11(e) of the Rules.
By accessing the inside of these employer facilities for campaigning, Leedham and his supporters indirectly appropriated a "thing of value" from the three employers. Because employer contributions -- even contributions the employer does not know it is making -- are prohibited, we find that the campaign access inside the CF, Holland Trucking and Porcelain Metals facilities violates the Rules. See Sylvester, 2001 EAD 288 (March 31, 2001).
3. The Leedham allegations. The Leedham slate alleges that Tom Brewer, an IBT field representative, and David Swift, a Local 89 business agent, followed Leedham and his supporters on April 2, 2001, as the group traveled from UPS's Ashbottom Road facility ("Ashbottom") to its Air Hub facility, and that, once at Air Hub, Brewer and Swift "engaged in obvious surveillance of the campaigners in a manner which was intimidating and discouraged members from talking to" the Leedham group. The Leedham slate also alleges other improper conduct that day which we discuss below.
A. Surveillance at UPS facilities. We find no support for the allegation that Swift engaged in campaign activities at Air Hub on April 2, 2001. While the Leedham group was at Air Hub, a member of the group took two pictures of the people allegedly surveilling them. Before the pictures were developed, the witnesses identified the two as Brewer and Swift. Upon seeing the developed pictures, however, the witnesses for the Leedham group stated that they may have been mistaken, that Swift probably was not at the facility, and that the person in the photo was Local 89 member Butch Benningfield.
Brewer admits being at Ashbottom for a short time early in the morning on April 2 and going to Air Hub directly afterwards. The Leedham group campaigned at both sites. Brewer said that he has been working in Louisville for the IBT on Democratic, Republican, Independent Voter Education ("DRIVE") because forty percent of Local 89's members are not registered to vote. Brewer's assignment includes voter registration. Brewer drove a green Lincoln during the day, and says that he went to Ashbottom with his materials and stayed only for about five minutes. He says he left quickly because he did not want to interfere with the Leedham campaign effort there. Instead, Brewer said, he left for Air Hub.
At Air Hub, shuttle buses take employees to the facility. Brewer told our investigator that he met employees near the East section shuttle bus, about 175 yards from the Leedham campaigners. He says he asked employees getting off the buses to register to vote. Brewer says that because there are thousands of employees at Air Hub, he could not recall the names of anyone he met. Brewer said that later that day he delivered the signed voter registration cards he obtained that day to the Board of Elections in Louisville.
Although no one helped Brewer with his work, Benningfield came by in the morning with a cup of coffee. Benningfield worked last fall on another DRIVE campaign and says that he and Brewer are friends. Benningfield, a Consolidated Freightways employee, was not working on April 2, 2001 because of back problems. He asked Brewer to breakfast. Brewer declined but said that he could use a cup of coffee, which was unavailable in the UPS parking lot. Benningfield brought the coffee and talked with Brewer for a short while. Benningfield says that he saw Brewer signing up people to vote and handing out voter registration cards. Benningfield denies knowledge of this protest and told our investigator that Brewer did not mention it to him. As Benningfield walked in the parking lot, the Leedham campaign group took his photograph.
The Leedham group asserts that Brewer, and possibly Benningfield, engaged in surveillance at Ashbottom and Air Hub. Delegate candidates Duran, Hall, and Tony Linton each said that they began campaigning at Ashbottom. After a couple of hours, they left to go to Air Hub. On their way, they saw that they were being followed by a green Lincoln. When they began campaigning at Air Hub, they again saw the car. This time, it was in the parking lot about 75 to 100 yards away from them. When they approached the car, they allege, they saw Brewer and Benningfield, and the two covered their faces with newspapers. Linton later took photographs of the two, after hiding his identity by replacing his Rank & File sweatshirt with another sweatshirt and raising its hood.
Hall and Duran also allege that they saw a gold Lincoln with pro-Hoffa bumper stickers pull beside the green Lincoln. Rank & File campaign manager and delegate candidate Thornsberry said that he saw a black SUV pull next to the green Lincoln and that it appeared that the occupants were talking. Finally, according to Duran, when he and Linton returned to their cars to leave Air Hub, each had Kentucky voter registration cards under their windshields. Both cars, however, have Indiana license plates, and other cars nearby did not have such cards.
No evidence was presented by Leedham or his supporters that any non-campaigning Local 89 member saw Brewer or was discouraged by his presence from taking the Leedham group's literature.
Our investigators spoke with Lisa Stevens of the Jefferson County Board of Elections in Louisville, Kentucky. According to Stevens, the Jefferson County Board of Elections is the only place in Louisville where people hand in voter registration cards. Stevens told our investigator that the State of Kentucky has no elections in 2001. She also stated that the Board of Elections received, from all sources, a total of only five walk-in registration cards on April 2, 2001 and zero on April 3, 2001. Even assuming that Brewer handed in the five cards, the weight of the evidence as a the whole leads us to conclude that on the morning of April 2, 2001, Brewer intentionally followed the Leedham group and used his alleged work for DRIVE as a cover for that activity.
The Leedham group could not identify the gold Lincoln or the black SUV drivers who allegedly worked with Brewer to coordinate surveillance efforts. Although Local 89 business agent Herman Veltman drives a gold Lincoln, he denies seeing Brewer or going to Air Hub on April 2, 2001. We have not received sufficient evidence to contradict Veltman's testimony. Likewise, we have received insufficient evidence to identify the driver of either vehicle.
B. Other allegations. After campaigning at Air Hub, the Leedham group drove to Shoney's for lunch. On their way, allege several members of the Leedham group, a black or green SUV followed and parked at a restaurant across the street. No one, however, could identify the driver of the SUV. The Leedham group was not campaigning to Local 89 members while at Shoney's.
After lunch, Hall, Duran, and noncandidate Fred Stephens went to Allied Systems to campaign but decided not to do so when thirty to fifty Local 89 members wearing pro-Hoffa paraphernalia greeted them. The campaigners did not know from whom the members received the Hoffa campaign items. (Brewer happened to be there as well.)
The Leedham group next went to an IMI facility on, or near, Poplar Level Road. As they drove to the facility, a silver Lincoln followed. Although some members believe that Local 89 retiree John Wientjes drove the Lincoln, he denies being in the area. Wientjes claims that he was downtown throughout the morning and lunchtime and that he was nowhere near the IMI Poplar Level Road facility all day. We find insufficient evidence to connect Wientjes to the alleged surveillance.
When the Leedham group showed up at the American Printing House for the Blind, other campaigners, supporters of the Zuckerman/Washburn slate, were already there. Campaigning on behalf of the Zuckerman slate were business agents Reynolds, Thompson, Mike Fackler, Veltman, Kenneth Lauersdorf, Swift, and stewards Aubrey Cheatham and William McAlistair. The stewards' workdays had ended when they began campaigning; each business agent claims that he was taking vacation time to campaign. This was confirmed by Local 89 secretary-treasurer Caroline Washburn. According to her, Local 89 permits business agents to take fractional vacation days. According to the campaigning business agents, Fackler, Lauersdorf and Swift called Angela at the Local 89 switchboard to say that they would be taking vacation (1/2 day each); Thompson and Reynolds checked with Local 89 president Fred Zuckerman (1/2 day each); and Veltman asked Washburn (full day). We find insufficient evidence that Local 89 staff campaigned for the Zuckerman/Washburn on April 2 during paid union time.
Based on the foregoing, we GRANT the Leedham slate protest allegation that Brewer improperly surveilled Leedham campaign activity at UPS facilities on April 2, and that he did so on time paid by the IBT and therefore improperly used union resources. See Giacumbo, 95 EAM 45, p. 7 (December 18, 1995)("the appearance of surveillance of IBT members engaging in campaign activities violates the right of members to support candidates free from coercion, interference or harassment.") We DENY the Leedham slate's other protest allegations.
Remedy
When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interfering with the election process.
With respect to the Leedham violations, the Election Administrator orders the following:
1. Leedham and his supporters shall cease and desist from receiving or taking any campaign contributions from any employer.
2. The notice attached hereto as Exhibit A shall be posted on all worksite bulletin boards under the jurisdiction of Local 89 for a period of thirty (30) days from the date of posting. The thirty-day posting period shall commence no later than May 7, 2001.
With respect to the Brewer violations, the Election Administrator orders the following:
1. Brewer shall cease and desist from surveillance of protected campaign activity.
2. Brewer shall reimburse the IBT for an amount equivalent to four (4) hours of his compensation.
3. The notice attached hereto as Exhibit A shall be posted on all worksite bulletin boards under the jurisdiction of Local 89 for a period of thirty (30) days from the date of posting. The thirty-day posting period shall commence no later than May 7, 2001.
We decline, however, to order a rerun of the Local 89 election based on these violations. The Leedham violations do not form the basis for a rerun, because the Rank and File slate, which benefited from the violations, lost each seat that they contested. Nor does the Brewer violation warrant a different result. There is no evidence that suggests that any person other than Leedham and those that campaigned with him on April 2 witnessed the surveillance in question. In such a circumstance, there can be no possibility of an inference that potential Rank and File slate voters were intimidated by the surveillance, and thus deterred from voting for the slate's candidates.
An order of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73 (February 13, 1996).
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, 727 15th Street NW, Tenth Floor, Washington, DC 20005 (fax: 202-454-1501), all within the time 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
2001 EAD 332
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave., NW
Washington, DC 20036
J. Douglas Korney
Korney & Heldt
Suite 1551
30700 Telegraph Road
Bingham Farms, MI 48025
Tom Leedham c/o Stefan Ostrach
110 Mayfair Lane
Eugene, OR 97404
Barbara Harvey
Suite 1800
Penobscot Building
645 Griswold
Detroit, MI 48226
IBT Local 89
3813 Taylor Blvd.
Louisville, KY 40215
David Thornsberry
Rank & File Slate
10403 Truman Way
Louisville, KY 40299
Mark Smith
6420 Faris Way
Louisville, KY 40272
Roadway Express
4715 Pinewood Road
Louisville, KY 40218
Fred Zuckerman
Zuckerman/Washburn Unity Slate
IBT Local 89
3813 Taylor Blvd.
Louisville, KY 40215
U.S.F. Holland
J.D. Barnes
4885 Keystone Blvd.
Jeffersonville, IN 47130
Consolidated Freightways
2338 Millers Lane
Louisville, KY 40216
Loretta De Vasier
4004 Neagli Court
Louisville, KY 40229
Irwin H. Cutler, Jr.
Adrienne A. Berry
Segal, Stewart, Cutler, Lindsay,
Janes, & Berry
1400 B Waterfront plaza
325 W. Main Street
Louisville, KY 40202
Porcelain Metals
1400 S. 14th Street
Louisville, KY 40210
David Swift
IBT Loval 89
3813 Taylor Blvd.
Louisville, KY 40215
Tom Brewer
306 Ridgecrest Drive
Mufreesboro, TN 37130
Johnny Wientjes
3100 Teal Avenue
Louisville, KY 40213
American Printing House
1839 Frankfort Avenue
Louisville, KY 40206
Mike Fackler
IBT Local 89
3813 Taylor Blvd.
Louisville, KY 40215
Roy Reynolds
IBT Local 89
3813 Taylor Blvd.
Louisville, KY 40215
Ken Larsdorff
IBT Local 89
3813 Taylor Blvd.
Louisville, KY 40215
Ben Bramble
IBT Local 89
3813 Taylor Blvd.
Louisville, KY 40215
Herman Veltman
IBT Local 89
3813 Taylor Blvd.
Louisville, KY 40215
Avral Thompson
9135 Loretto Drive
Loretto, KY 40034
William McAlistair
537 Big Spring Road
Radcliff, KY 40160
Aubrey Cheatham
2653 Knobview
New Albany, IN 47150
Lindsay Marshall
UPS Inc., Legal Department
55 Glenlake Parkway NE
Atlanta, GA 30328
Gary Tocci
Kim Kaplan
Schnader, Harrison, Segal & Lewis
Suite 3600
1600 Market Street
Philadelphia, PA 19103
Michael J. Goldberg
73 Harrowgate Drive
Cherry Hill, NJ 08003
Maureen Geraghty
300 S. Main Street
Winston-Salem, NC 27101
Jason Weidenfeld
Office of the Election Administrator
727 Fifteenth Street, NW
10th Floor
Washington, D.C. 20005
NOTICE TO ALL MEMBERS OF LOCAL 89
The Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") prohibit contributions of any thing of value from an employer or a labor organization to support the election campaign of any candidates for International officer or International convention delegate or alternate delegate. The Rules also prohibit surveillance of protected campaign activity by such candidates.
The Election Administrator has concluded that IBT International officer candidate Tom Leedham and various members of the Local 89 Rank and File delegate election slate improperly received an involuntary employer contribution by campaigning on April 2, 2001, inside the facilities of employers Consolidated Freightways, Holland Trucking and Porcelain Metals within the jurisdiction of Local 89.
The Election Administrator has also concluded that IBT International Representative Tom Brewer improperly used IBT resources for campaign purposes and improperly surveilled the campaign activities of Leedham and Rank and File slate campaigners by following and surveilling them as they campaigned within the jurisdiction of Local 89.
The Election Administrator will not permit any such violations of the Rules.
The Election Administrator has ordered each of those found to have violated the Rules to cease and desist from doing so.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with William A. Wertheimer, Jr., Office of the Election Administrator, 727 Fifteenth Street, NW, Washington DC 20005, telephone 800-565-VOTE, fax (202) 454-1501.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
This is an official notice and must remain posted for thirty (30) consecutive days from the day of initial posting, and must not be altered, defaced or covered by any other material.