Protest Decisions

IN RE: HOFFA SLATE, ASHLEY McNEELY, LEEDHAM SLATE and DANNY CAMPBELL,
Protest Decision 2001 EAD 370
Issued: May 16, 2001
OEA Case Nos. PR103002NA, PR012212NA, PR012213NA, PR012915MW and PR013014MW

This decision supplements our earlier decision in Hoffa Slate, 2001 EAD 204 (March 1, 2001), aff'd, 01 EAM 54 (March 28, 2001), where we deferred final resolution of various issues raised by these cases to an arbitration between Northwest Airlines ("NWA") and IBT Local 2000 concerning a grievance filed under those parties' collective bargaining agreement on behalf of Local 2000 member and International officer candidate Ashley McNeely.

In OEA Case No. PR103002NA, the Hoffa Unity slate ("Hoffa slate") alleges that the Tom Leedham Rank and File Power Slate ("Leedham slate") improperly accepted employer contributions from NWA when candidate Leedham and other Leedham slate candidates and supporters (the "Leedham group") used companion air transportation passes ("companion passes") issued by NWA through McNeely, an NWA employee, for campaign travel. The Hoffa slate argues that the receipt of these passes by the Leedham group constitutes receipt of employer contributions, contrary to Article XI, Section 1(a) and (b)(2) of the Rules, Article 4, Section 4 of the IBT Constitution, and the LMRDA. The Hoffa slate also alleges that the use of the companion passes by the Leedham group has not been properly reported in CCERs filed with the Election Administrator by the Leedham slate and/or individual members of the Leedham group.

McNeely's protest in PR012212NA and the Leedham slate's protest in PR012213NA allege that NWA improperly retaliated against McNeely because of her candidacy and pro-Leedham slate activity when it threatened her with discipline and subjected her to investigation concerning the Leedham group's use of NWA companion passes issued through McNeely. The protestors further argue that NWA improperly levied discipline against McNeely when it limited her travel pass privileges in actions taken on January 19 and February 21, 2001. The Leedham slate alleges that NWA's actions constitute preferential treatment toward the Hoffa slate that has resulted in an improper NWA contribution to that slate, and in doing so relies upon alleged favored treatment given to NWA employee and IBT vice-president Dotty Malinsky with respect to NWA subsidized travel.

Campbell's protest in PR012915MW alleges that NWA, through its counsel Timothy Thornton, threatened retaliatory action against McNeely because Campbell had placed an announcement concerning the threatened discipline against McNeely on a recorded and website "hotline" message for Local 2000 members. The second Hoffa slate protest in PR013014MW concerns the same hotline message, and alleges that its publication constitutes an improper use of union resources for campaign purposes because the message attacks the Hoffa slate. That protest allegation was granted in 2001 EAD 204, and that grant was affirmed in 01 EAM 54.

By agreement of NWA and Local 2000, McNeely's grievance was heard by arbitrator John Flagler on April 17 and 18, 2001. Flagler issued his short-form decision on April 24, 2001. A copy is attached as Exhibit A. The Hoffa slate, McNeely and the Leedham slate have commented on the decision, as we discuss below.

In the proceedings before Arbitrator Flagler, NWA conceded that NWA flight attendants are permitted by NWA policy to use their employee pass travel privileges for "internal union campaign activities." (Ex. A, p. 4) However, NWA maintains that this right does not extend to such use by non-NWA employees, such as candidate Leedham, who may have received a companion pass from an NWA employee. Arbitrator Flagler sustained NWA's position, holding that, "the policy has never been extended to cover union campaign travel by anyone seeking union office who is not an employee of NWA or an officer in a union that has a collective bargaining relationship with the Company." (Id.)

Accordingly, Flagler denied McNeely's grievance on the contract interpretation issue that resulted in our deferral to arbitration. We accept that interpretation of the parties' collective bargaining agreement, which is binding upon them and thus conclusively establishes the purposes for which NWA companion passes may and may not be used.

Based on Arbitrator Flagler's award, we GRANT the Hoffa slate's protest, and find that candidates Leedham, Cederbaum and Hardy violated Article XI, Section 1(b)(2) of the Rules by receiving contributions to their campaign for International office from NWA, through the use of companion passes given to them by McNeely.[1] The Flagler award determined that the companion passes were not McNeely's to give to non-NWA employees for campaign purposes. Having received those passes through McNeely and having used those passes for campaign purposes, Leedham, Cederbaum and Hardy improperly used NWA property to support their election efforts in a manner forbidden by the Rules.[2]

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 interference with the election process.

A point of reference with respect to the appropriate remedy is our decision in Leedham Slate, 2001 EAD 302 (April 12, 2001). There, we found that the Hoffa slate violated the Rules by, inter alia, keeping campaign contributions from union vendors that were not improper when received -- because the Rules' and their prohibition on union vendors were not then in effect -- but improperly retained by the Hoffa slate after that prohibition went into effect.

There, we ordered the return of the improper contributions without imposing additional remedies, such as candidate disqualification, posting or other publication of a notice by the offending campaign, recognizing that the improper contributions were not improper at the time they were received, but subsequently became such.

Here, at the time the companion passes were used by candidates Leedham, Cederbaum and Hardy, neither they nor McNeely knew that NWA policy forbade their use for IBT campaign purposes. NWA had never announced such a restriction, and instead relied before Arbitrator Flagler upon general language in its policy barring non-NWA business use, which the arbitrator has now specifically interpreted in the manner urged by NWA. By contrast, it was known before the arbitration that NWA has permitted its own employees to use their own travel passes for campaign purposes. In such circumstances, it can hardly be said that the use of companion passes challenged by the Hoffa slate here represented a flagrant and knowing breach of the Rules' prohibition against employer contributions.^[3]

The Hoffa slate's position on disqualification of candidates Leedham, Cederbaum and Hardy is troubling. On May 1, 2001, the Election Administrator received a letter bearing that date from the Hoffa slate's counsel with respect to remedy. That letter did not seek disqualification. A copy is attached as Exhibit B. That same day, the Hoffa slate published on its internet website (under a headline "Hoffa Slate Calls for Leedham's Disqualification in Travelgate Scandal") a letter purportedly authored by counsel for the Hoffa slate dated May 1. It argued consistent with its headline and stated that it was addressed to the Election Administrator. A copy is attached as Exhibit C. The Election Administrator never received it. Counsel for the Hoffa slate acknowledges that he never sent it. By letter dated May 3, counsel for the Hoffa slate did argue for disqualification. That letter differed from both the real and the website May 1 letters. This sequence of events suggests that the Hoffa slate's proposal of a disqualification remedy may have been made for political effect, not as a reasoned legal position. To the extent that is true, it is unfortunate and ill serves the process.

Assuming that the Hoffa slate is seriously seeking a disqualification remedy, it is wholly inappropriate. Thus, unlike the situation in Richards, 2001 EAD 328 (April 26, 2001), aff'd on this point, 01 EAM 63 (May 3 and 14, 2001), candidates Leedham, Cederbaum and Hardy fully cooperated with our investigation and made no attempt to cover-up their use of what eventually was determined to be employer resources. Moreover, they had a good-faith belief that NWA employee McNeely had the contractual right to give her companion passes to them for use in their campaign. This distinguishes this case from the facts supporting the disqualification ordered in Richards, where the elected delegate who was disqualified was found to have obstructed our investigation.

We reject, however, the Leedham slate's suggestion that it should not be required to pay to NWA the value of the companion passes used by candidates Leedham, Cederbaum and Hardy. Article XI, Section 1(b)(13) mandates such a remedy. Accordingly, we order candidates Leedham, Cederbaum and Hardy to pay to NWA $1016.25, $214.00 and $226.75 respectively.[4]  We have not included within this remedy two non-campaign trips by Leedham in December 1999 and January 2000.[5]

The Leedham slate shall make these payments to the Election Administrator by check payable to NWA, by May 21, 2001. In addition, by May 24, 2001, the Leedham slate shall fully comply with the affidavit requirements of Article XI, Section 1(b)(13). It shall also amend its CCER filings to reflect the receipt and repayment of the improper contributions.

A decision 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 15^th Street NW, Tenth Floor, Washington, DC 20005, facsimile (202-454-1501), 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

2001 EAD 370

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

J. Douglas Korney

Korney & Heldt

30700 Telegraph Road

Suite 1551

Bingham Farms, MI 48025

Barbara Harvey

Penobscot Building

Suite 1800

645 Griswold

Detroit, MI 48226

Betty Grdina

Yablonski, Both & Edelman

Suite 800

1140 Connecticut Ave. NW

Washington, D.C. 20036

Tom Leedham Rank and File

Power Slate

c/o Stefan Ostrach

110 Mayfair

Eugene, OR 97404

IBT Local 2000

Attn: Danny Campbell

2850 Metro Drive

Suite 225

Bloomington, MN 55425

Timothy Thornton

Briggs & Morgan

2400 IDS Center

80 South Eighth Street

Minneapolis, MN 55402

Julie Hagen Showers

Managing Director

Labor Relations

Northwest Airlines

5151 Northwest Drive

St. Paul, MN 55111-3034