IN RE: MAURICE COBB,
Protest Decision 2001 EAD 509
Issued: October 16, 2001
OEA Case No. PR101011AT
(See also Election Appeals Master decisions 01 EAM 100 & 01 EAM 100a)
Maurice Cobb, a member of Local 528, 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 Hoffa Unity slate (the "Hoffa slate"). The protest alleges that Hoffa slate General President candidate James P. Hoffa campaigned at the Atlanta facility of Gate Gourmet, a provider of food products to airlines, on October 4, 2001, in violation of the Rules.
Election Administrator representative Dolores Hall investigated the protest.
Findings of Fact and Analysis
Before September 11, 2001, Local 528 business agent Jim Reynolds advised Gate Gourmet personnel manager Kandy Larkey that candidate Hoffa intended to visit Atlanta and asked her if she had a problem with Hoffa meeting with employees in the break room at Gate Gourmet. She said she did not. On October 4, Hoffa visited the break room of Building 302 and met with employees on their break. The break room is located in the public area containing the administrative offices and is accessible to the public. In order to enter the area where union members are working, one must go through a turnstile, which requires a swipe card. Only employees possessing swipe cards are allowed beyond that point. Hoffa did not go beyond the turnstile. The day after Hoffa's visit, a Leedham supporter distributed videotapes and campaign material to employees in the parking lot of Gate Gourmet. Larkey did not see the campaigner but was advised of his presence when an employee gave her the tape and material he had obtained in the parking lot. Larkey claims the Leedham representative would have been allowed to distribute the material in the break room, but says he made no attempt to enter the building. Neither this campaigner or the Leedham campaign was ever notified that the break room was available for campaigning by IBT candidates or other members not employed by Gate Gourmet.
Larkey has been at Gate Gourmet for approximately one year. She stated that, to her knowledge, Hoffa's visit was the first time campaigning took place in the break room. She stated that campaigning usually takes place at shift change times in the parking lot or at the gate as employees are entering and/or exiting. She stated that Reynolds' request was the first she had personally received. She says that had anyone from the Leedham slate attempted to campaign in the break room, they would have been allowed to do so.
Larkey adds that the week following the Hoffa visit, the FAA ordered Atlanta Hartsfield airport to increase security. As a result, there are now locks on the door to the outside and no one is allowed into the building except by special permission. She stated that now, if anyone (from either side) wished to campaign in the break room, she would be required to notify her manager and receive special permission for such action.
Based on the foregoing, 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." Article XI, Section 1(b)(13) holds a candidate "strictly liable in insure that each contribution received is permitted under these Rules."
In Thompson, 2001 EAD 332 (April 30, 2001), aff'd, 01 EAM 73 (May 24, 2001), we found candidate Leedham violated the Rules by entering an employer premises to campaign. We wrote:
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).
We apply Thompson here and find campaigner Hoffa violated the Rules when he campaigned inside the Gate Gourmet facility on October 4, 2001. We further find that such campaigning was conducted with the consent of Gate Gourmet management, and therefore find that Gate Gourmet made an improper employer contribution to the Hoffa slate in violation of Article XI, Section 1(b)(2) of the Rules. See Cobb, 2001 EAD 464 (September 20, 2001).
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.
In Thompson, we ordered the Leedham campaign to cease and desist from entering employer premises in violation of the Rules. We also ordered a notice posting on all local union worksite bulletin boards. We did the same in Leedham Slate, 2001 EAD 445 (September 10, 2001). In Cobb, supra, we ordered relief for a similar violation involving a facility represented by the same local union that represents Gate Gourmet employees. The notice ordered posted in that case remains posted on bulletin boards throughout Local 528's jurisdiction. Nevertheless, the same type of Rules violation has occurred here, after the issuance of our earlier decision in Cobb.
Local 528 counsel Bradley T. Raymond has offered the local union's assistance in arranging a candidate visit at Gate Gourmet similar to that afforded candidate Hoffa. The Leedham slate, however, seeks a mailing remedy, since candidate Leedham cannot arrange a visit to Gate Gourmet in the short time remaining in this campaign, where ballots were mailed one week ago.
We agree with the Leedham slate, and order the Hoffa slate to pay the full costs for a one-page campaign mailing by the Leedham slate to all Local 528-represented Atlanta area Gate Gourmet employees. The Hoffa slate shall advance the money to the Leedham slate for this mailing by the close of business on October 17, 2001. Payment should be forwarded to the Leedham slate care of Matt Ginsburg, 30 Third Street, Brooklyn, NY 11217 for receipt by that time. Local 528 shall cooperate in fulfillment of this order by promptly providing the Leedham slate with the names and mailing addresses of all its members employed at Gate Gourmet in the Atlanta area.
In addition, since we find that the Hoffa Slate has ignored our prior cease and desist order directed to the same conduct by the slate in Cobb, supra, and Leedham Slate, 2001 EAD 445 (September 10, 2001), we order the Hoffa slate to pay a $5,000 fine to the Election Administrator by no later than October 18, 2001.
We will defer for the present any determination of the question of whether the Hoffa slate's receipt of an improper employer contribution here may have affected the ongoing International officer election so as to warrant relief under Article XIII, Section 4(t) or (u), either by itself or in combination with any other Rules violations.
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 (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 509
DISTRIBUTION LIST VIA FAX AND 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
Eugene, OR 97404
Hoffa Unity Slate
Todd Thompson
209 Pennsylvania Ave. SE
Washington, DC 20003
Matt Ginsburg
30 Third Avenue
Brooklyn, NY 11217
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, TX 75207
IBT Local 528
2540 Lakewood Ave. SW
Atlanta, GA 30315
Gate Gourmet
P. O. Box 45485
Hartsfield International Airport
Atlanta, GA 30320