IN RE: ROBERT LINKENHOKER,
Protest Decision 2001 EAD 504
Issued: October 15, 2001
OEA Case No. PR100811AT
Robert Linkenhoker, a member of Local 355, 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 the Jessup, Maryland facility of Sysco Foods, an employer of Local 355 members. He alleges that Sysco interfered with his distribution of debate videotapes on behalf of the Tom Leedham Rank and File Power slate ("Leedham slate").
Election Administrator representative Dolores Hall investigated the protest.
Findings of Fact and Analysis
Linkenhoker alleges that on Friday, October 5, 2001, Sysco supervisor Clyde Waters took a videotape of the Tom Leedham-Chuck Mack debate and told him to stop distributing the tapes at Sysco.
On October 3, Linkenhoker obtained permission from Sysco supervisor Dave Hawkins to distribute debate videotapes to members. Hawkins told Linkenhoker that he could distribute the tapes on his breaks and at lunch in non-work areas. Linkenhoker did so on October 8 at the picnic table where employees gather for lunch. When he returned to his work area, he placed the remaining tapes in a large box, made a sign on the box indicating the tapes were free for Teamster members, and placed the box on a milk crate outside the door where employees exit after punching out from work. This area is also next to a trash dumpster where employees take a smoke break.
That evening, after punching out from work, driver Ron Sowards told Linkenhoker that Waters had obtained a tape from Sowards. Linkenhoker went to retrieve it from Waters, who refused to give it up. Linkenhoker called the police, who determined that Linkenhoker had permission to distribute the tapes and told Waters to return his. He did so, but then instructed Linkenhoker not to bring any campaign material, including the videotapes, to Sysco for distribution in the future. Local 355 members at the Sysco facility that employs Linkenhoker are allowed to wear Hoffa slate shirts, hats and buttons to work. In addition, Hoffa fliers were also distributed in the facility October 8 by the Union steward Ed Jarred to employees who were working.
Sysco management, after consultation with counsel, has agreed to allow Linkenhoker to distribute debate videotapes during non-work time as he had until stopped by Waters on October 5. This was confirmed in an October 12 letter to Linkenhoker.
During our investigation we also learned that copies of the Article IV, Section 2 Notice of Election and the debate notice were not posted on the bulletin boards at Sysco. Local 355 business agent Marcus Smith acknowledged that the Notices were not posted on September 14 as required because, he claimed, they were received late, although he could not recall when they were received. He also claimed that the Local did not receive the Election Administrator's various directives concerning the posting of these notices, but said he could not be certain of that fact.[1] He also says that the notices were on the bulletin boards at Sysco on October 11, but does not know when they were posted. He acknowledged that he was responsible for providing the stewards with the notices for posting but could not recall when he did that. One Local 355 member who frequently checks the bulletin board for job openings and bids confirmed that the Notices had not been posted before the week of October 8, saying that the first time he saw them was on October 11. This member asked steward Ed Jarred when the notices were posted and was told earlier in the week of October 8. The required affidavit of posting was submitted by Local 355 on October 10, 2001, after this investigation was initiated.
The refusal of supervisor Waters to permit Linkenhoker to distribute debate videotapes in a non-work area on non-work time while at the same time permitting the distribution of Hoffa slate materials among employees while working constitutes a clear violation of Article VII, Section 11(f) of the Rules, which requires employers to refrain from "discrimination between candidates in permitting access to its property." Such discrimination "constitute[s] an improper contribution to the candidate who benefited from such discrimination." The Hoffa slate, which benefited from this discrimination, is also responsible, under the strict liability provisions of Article XI, Section 1(b)(13) of the Rules, for its receipt of Sysco's improper contribution.
To remedy the violation by Sysco, we order it to permit Linkenhoker to distribute debate videotapes or Leedham slate campaign literature among employees at the Jessup facility during Linkenhoker's shift, and to cease and desist from interference with Linkenhoker's right to campaign during non-work time in non-work areas. We will defer any resolution as to the Hoffa slate at this time, and we thus reserve our determination whether the Hoffa slate's receipt of an improper employer contribution should be treated as a post-election protest under Article XIII, Section 2(f)(2) of the Rules.
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 504
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
3060 Penobscot Building
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
Eugene, OR 97404
Todd Thompson
209 Pennsylvania Ave., SE
Washington, DC 20003
Matt Ginsburg
30 Third Avenue
Brooklyn, NY 11271
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, TX 75207
Dolores Hall
1000 Belmont Place
Metairie, LA 70001
Sysco Foods
Attn: Lisa Tyer
8000 Dorsey Run Road
Jessup, MD 20794
Robert Linkenhoker
7057 Dunbar Road
Baltimore, MD 21222
IBT Local 355
1030 South Dukeland Street
Baltimore, MD 21223
[1] Notice of each local's obligation to post these notices was sent repeatedly, and as early as August 31, 2001. The local's claimed lack of notice is not credible. However, such matters are subsumed within the open protest investigation referred to in Hull, 2001 EAD 501 (October 11, 2001).