IN RE: TOM LEEDHAM RANK AND FILE POWER SLATE AND RICHARD DE VRIES,
Protest Decision 2001 EAD 500
Issued: October 8, 2001
OEA Case Nos. PR093011MW & PR100111MW
The Tom Leedham Rank and File Power slate ("Leedham slate") and Local 705 member Richard deVries filed pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). The protests allege that Local 703 officers, IBT General President candidate James P. Hoffa, IBT General Secretary-Treasurer candidate Tom Keegel and Local 703 employer Dominick's Finer Foods ("Dominick's") violated the Rules when Hoffa, Keegel and their supporters campaigned in Chicago on September 27, 2001.
Election Administrator representatives Jason Weidenfeld and Nancy Golen investigated the protests.
Findings of Fact
On Tuesday, September 25, 2001, Local 705 member Dane Passo phoned Local 703 secretary-treasurer Tom Stiede about the possibility of a September 27 Hoffa campaign visit to South Water Market, a public open-air market where many IBT members are employed. Stiede agreed such a visit would be fine and also suggested a Hoffa campaign visit to Dominick's Northlake facility between 2:00 p.m. and 3:00 p.m., noting that a large number of members changed shifts around 2:30 p.m. Stiede had worked at Dominick's for nineteen years and is currently on a leave of absence.
On Wednesday, September 26, 2001, Local 703 recording secretary Dave McLin, a part-time employee both of Dominick's and of Local 703, spoke with Joseph Odette, the manager of distribution at the Northlake facility, about the possibility of Hoffa and Keegel visiting the facility. McLin also asserts that he told Odette that if he permitted Hoffa to visit, he would also have to permit General President candidate Leedham to visit and that Odette agreed. Odette contacted Stan Schwartz, Dominick's director of labor relations, about the impending visit by Hoffa and asked whether it could be arranged in an area next to the parking lot. Odette explained that about half of the lot was inaccessible because of an ongoing, months-long resurfacing project and that the lot had debris piles up to three feet high in certain areas. Schwartz told Odette that the visit could be arranged next to the lot as long as nobody entered the buildings.
Aside from the main employee parking lot, Dominick's has a secondary parking area. Stiede, Local 703 business agent Pat Bruno, McLin and Schwartz admit that the secondary parking area is not generally available to IBT members for the purpose of parking their cars, and is ordinarily used by salaried employees, elected IBT officials (including Local 703 officials), and IBT members using the employer's wellness center. Even though the main employee parking lot is under construction, Bruno confirmed that IBT members still park their cars there and generally are not permitted to park in the secondary area while they work. A Dominick's security guard oversees entry into the secondary parking area.
On September 27, 2001, Hoffa and Keegel took vacation leave to campaign. Local 703 president Chuck Murdoch also took leave to campaign, as did Stiede, trustees Sam Scianna and Tony Cariocca. Likewise, Local 703 members and Dominick's employees McLin and Bob Poor took the day off to campaign.
The campaigners met IBT members at South Water Market in the morning. Later that day, they arrived at Dominick's, with Murdoch and Bruno arriving first at 1:45 p.m. They passed a security checkpoint with a guard and a mechanical arm, and parked in the Northlake facility's secondary parking area. The campaigners then adorned Bruno's personal truck with Hoffa campaign material. After Hoffa and Keegel arrived and passed through the same checkpoint at around 2:00 p.m., Odette announced over the public address system on the grocery side of the warehouse that Jim Hoffa was outside for employees who wanted to meet him.
Murdoch introduced Hoffa and Keegel at around 2:00 p.m., and both addressed the members from the flatbed of Bruno's truck until shortly before 3:00 p.m. Estimates of the length of time spent campaigning in the area range from about one-half hour to about an hour. Based on the fairly uniform testimony of Murdoch, Bruno, and Local 703-represented Dominick's employees Brett Subsits, John McFarland, and John Zizalich, we find that active campaigning, including addresses, ran from shortly after 2 p.m. until shortly before 3 p.m.
Odette says that some employees dribbled out of the building and stayed outside for only a few minutes, ten at most. The members, on work time, met the candidates and returned to work. To corroborate Odette's claim that on-the-clock workers did not attend the campaigning on work-time for more than ten minutes, Dominick's points out that the warehouse runs on a productivity system and employees would not meet their figures if they stayed outside longer. Second, Dominick's claims that hourly employees arriving for the start of second shift at 2:30 p.m. were more likely to listen for a few minutes before clocking in than they were to clock in at 2:30 p.m., leave immediately, and return later. On the other hand, McFarland says that he listened to the speeches on work time from about 2:00 p.m. until 2:50 p.m. Subsits says that he stayed at the facility after his shift ended at 12:30 p.m. He estimated that at least 100 other employees heard them. Based on our investigatory interviews, we find that many IBT-represented Dominick's employees listened to parts of the speeches on work time, and did so for varying lengths of time.
The campaigners state that the parking lot "normally used by employees" was under construction and that they campaigned in the secondary area, "which was at the time being used by Teamsters' employees." In addition, Teamster employees were in the campaign area giving the appearance that it was a Teamster employee parking area. No one informed Hoffa or Keegel that the area was generally unavailable to IBT members for parking or campaigning. The protestor has not provided evidence to show that Hoffa and Keegel knew that IBT members could not park their cars in the secondary area.
Analysis
Article XI, Section 1(b)(6) of the Rules provides that "[n]o Union funds or other things of value shall be used, directly or indirectly, to promote the candidacy of any individual." The Rules permit IBT members to "distribute literature and/or otherwise solicit support [for an IBT General President candidate] in any parking lot used by Union members to park their vehicles in connection with their employment." Article VII, Section 11(e).
The first issue presented is whether Hoffa and Keegel improperly campaigned in a location where IBT members generally cannot park their cars. In this case, although campaigning occurred in an area generally off limits to IBT members for parking, we do not find a violation. Rather, Dominick's expressed a legitimate concern with safety due to the construction in the employee parking lots and initiated the idea of campaigning in the secondary parking area. Dominick's even told Local 703 recording secretary McLin that Leedham would be granted the same access if he wanted to campaign. Under these circumstances, Local 703 representatives and candidates Hoffa and Keegel did not violate the Rules by accepting Dominick's direction to campaign in a parking area safer than the employee parking lot. Likewise, Dominick's did not violate the Rules by granting a reasonable alternative area to campaign. See Dunn, P87 (August 4, 1995) (no violation to ask campaigner to move to a safer location on the employer's premises).
The second issue is whether Dominick's made an improper employer contribution to the Hoffa and Keegel campaign by announcing their visit over the public address system and permitting employees to listen to the campaigners during work hours. Article XI, Section 1(b)(2) prohibits employer contributions of anything of value to international officer candidates "where the ... foreseeable effect ... is [to] influence, positively or negatively, the election of a candidate." In addition, the parking lot access provision clearly states that "[t]he rights guaranteed in this [provision] are not available to an employee on working time [and] may not be exercised among employees who are on working time." Article VII, Section 11(e).
We find that Dominick's conduct constituted an improper employer contribution to the Hoffa and Keegel campaign, as well as a violation of Article VII, Section 11(e). First, Odette improperly announced the presence of Hoffa and Keegel to Dominick's employees over the public address system. Second, and even more seriously, Dominick's permitted its employees to attend a campaign presentation on work time. The Hoffa and Keegel campaign clearly benefited from these employer actions.
As in all cases involving campaign contributions, we must attribute improper contributions to the candidates themselves. Article XI, Section 1(b)(13) of the Rules holds candidates "strictly liable to insure that each contribution received is permitted under these Rules." Article XI, Section 1(b)(14) declares that "[i]gnorance by a candidate, by a union and/or by an employer that union or employer funds or other resources were used to promote a candidacy shall not constitute a defense to an allegation of a violation of these Rules." Furthermore, as we stated in Advisory on Campaign Contributions and Disclosure (September 27, 2000), candidates have strict liability for solicited and unsolicited contributions. Therefore, we must attribute Dominick's violations to Hoffa and Keegel.
Accordingly, we GRANT the protest allegations against Dominick's and candidates Hoffa and Keegel for the improper employer contributions made to the candidates. We DENY all other protest allegations.
Remedy
When the Election Administrator determines that the Rules have been violated, he "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator views the nature and seriousness of the violation as well as its potential for interfering with the election process.
Hoffa and Keegel received significant contributions when Dominick's made an in-plant announcement of their visit and permitted IBT members to listen to their addresses while working. Although Dominick's states that employees stopped by the campaign event for only a brief period, it is not possible to determine exactly how many IBT members listened to the campaigners on work time or for how long. All there, however, had the opportunity.
In order to remedy the violation and level the playing field, and in light of the fact that ballots will be mailed in the election on October 9, 2001, we order the following:
On Monday, October 15, 2001, Dominick's must permit Leedham, international officer candidates on his slate, and any IBT members supporting the slate (collectively, "Leedham") to campaign at Dominick's in the same manner as did Hoffa, Keegel, and their supporters. Specifically:
a. Leedham must be permitted to arrive and begin campaigning at 1:45 p.m. in the same area as did Hoffa and Keegel.
b. At 2:05 p.m., Odette or another management representative of Dominick's must announce over the grocery area's public address system that Tom Leedham (or such other campaigners as Leedham designates) is outside for employees who want to meet him.
c. Leedham may discuss the campaign with any IBT members, working or not, from 2:05 p.m. until 2:55 p.m. Since no express limitation was placed on the amount of time Dominick's employees could listen to the Hoffa/Keegel presentations on work time, no such limitation shall be in effect for the period of the October 15 remedial visit.
The Hoffa campaign, with the assistance of Local 703, shall post the notice attached hereto at all Local 703 bulletin boards at Dominick's Northlake facility. The notice shall be posted on October 11, 2001 and shall remain posted for 30 days thereafter. The Hoffa campaign shall attest to its compliance with this notice posting requirement by filing an affidavit of posting to be received by the Election Administrator on October 12, 2001.
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.
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 (facsimile: 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 500
NOTICE TO ALL MEMBERS OF LOCAL 703 EMPLOYED AT DOMINICK'S NORTHLAKE FACILITY
The Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") prohibit employers from contributing to candidates and candidate slates.
The Election Administrator has concluded that on September 27, 2001, Dominick's Finer Foods ("Dominick's") violated the Rules by contributing to the candidacies of James P. Hoffa and Tom Keegel. First, Dominick's announced over its grocery-side public address system that Hoffa was outside for members who would like to meet him. Dominick's further violated the Rules by permitting members on work time to listen to the campaigners' addresses.
Hoffa and Keegel also violated the Rules when they received the benefit of Dominick's improper contributions. International officer candidates are liable for any contributions they receive, even if unsolicited.
The Election Administrator will not permit any such violations of the Rules.
To remedy the violation, the Election Administrator has ordered Dominick's to announce over the grocery-side public address system on October 15, 2001 that candidate Tom Leedham is outside the Dominick's Northlake facility for members who would like to meet him. Members will be allowed by Dominick's to meet Leedham between 2:05 p.m. and 2:55 p.m. on that day, even if that is during their work hours.
The Election Administrator has also ordered Dominick's, Hoffa and Keegel to cease and desist from further violating the Rules, and has ordered the posting of this notice beginning October 11, 2001, for a period of thirty days.
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.
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 c/o Stefan Ostrach
110 Mayfair Lane
Eugene, OR 97404
Todd Thompson
209 Pennsylvania Ave., SE
Washington, DC 20003
Matt Ginsburg
30 Third Avenue
Brooklyn, NY 11217
IBT Local 703
300 S. Ashland Ave., Room 502
Chicago, IL 60607
Stan Schwartz
Director of Labor Relations
Dominick's
711 Jorie Blvd., Suite 1
Oak Brook, IL 60523
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, TX 75207
Chuck Murdoch
IBT Local 703
300 S. Ashland Ave., Room 502
Chicago, IL 60607
Pat Bruno
IBT Local 703
300 S. Ashland Ave., Room 502
Chicago, IL 60607
Richard de Vries
1852 South Allport Street
Chicago, IL 60608