IN RE: BRIAN CHAPMAN,
Protest Decision 2001 EAD 512
Issued: October 17, 2001
OEA Case No. PR100511CA
Brian Chapman, a member of Local 938, 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, Garnet Zimmerman and Joe McLean. Chapman alleges that Zimmerman and McLean were permitted to campaign inside an employer's building in violation of Article VII, Section 11 of the Rules.
Election Administrator Representative Gwen Randall investigated the protest.
Findings of Fact and Analysis
Hoffa Unity slate candidates Zimmerman and McLean campaigned at Allied Systems, 6151 Colonel Talbot Road in London, Ontario on October 3, 2001. At the outset, Zimmerman and McLean campaigned in the employee parking lot. Some employees were congregated in a vestibule area in the doorway of Allied Systems, between two sets of glass doors. Zimmerman and McLean acknowledged to the investigator that they had stepped inside the vestibule area and spoken with four employees. The protestor says the candidate campaigning in the vestibule area continued for about one hour. McLean and Zimmerman say less time was involved, with the former campaigning in the building for twenty minutes and the latter leaving after a shorter period. The duration of the campaigning inside the building was not, however, de minimis. See Thompson, 2001 EAD 332 (April 30, 2001), aff'd, 01 EAM 73 (May 24, 2001).
There is no pre-existing practice allowing candidate campaigning in the Allied facility pursuant to Article VII, Section 11(d) of the Rules. To the contrary, Chapman and other supporters of the Tom Leedham Rank & File slate had attempted to gain access to the same building in February, 2001, in the company of Leedham. The campaigners were denied access to the building and were instead limited to distributing leaflets in the parking lot; access which they obtained only after filing a protest challenging a potential denial of that right. See Chapman, 1001 EAD 188 (February 27, 2001).
On October 3, 2001, after Zimmerman and McLean had left the premises, Chapman took the matter up with the terminal manager at Allied Systems who advised Chapman that he had not been aware that Zimmerman and McLean had entered the building.
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 campaigners Zimmerman and McLean violated the Rules when they campaigned inside the Allied Systems facility on October 4, 2001. Accordingly, we GRANT the protest.
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.
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 ordered the Hoffa slate to do the same in Leedham Slate, 2001 EAD 445 (September 10, 2001). In Cobb, 2001 EAD 464 (September 20, 2001), we ordered similar relief for another violation of this type by the Hoffa slate. See also Cobb, 2001 EAD 509 (October 16, 2001), appeal pending.
Here, given the fact that ballots were mailed on October 9, 2001, and to level the playing field, we order Zimmerman and McLean, members of the Hoffa slate in Canada, to pay the full costs for a one-page campaign mailing by the Leedham slate to all Local 938-represented Allied System London, Ontario area employees. The Hoffa slate shall advance the money to the Leedham slate for this mailing by the close of business on October 18, 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 938 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 Allied Systems in the London area.
We will not assess a fine as we did in 2001 EAD 509, since it would be cumulative, and since in that case the violation occurred during the notice posting period ordered in 2001 EAD 464 for a similar violation by the Hoffa slate in the same local union.
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 512
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 Lane
Eugene, OR 97404
Todd Thompson
209 Pennsylvania Ave., SE
Washington, DC 20003
Brian Chapman
38A Patricia Street
St. Thomas, ON N5P 2C8
Canada
Gwen K. Randall, Q.C.
Suite 3300, 421-7th Avenue SW
Calgary, AB T2P 4K9
Canada
Garnet Zimmerman
IBT Local 311 Grosvenor Square
Delta, BC V3M 5S1
Canada
Joseph McLean
IBT Local 879
460 Parkdale Avenue North
Hamilton, ON L8H 5Y2
Canada
Allied Systems
Human Resource Manager
6151 Colonel Talbot Road
London, ON N6P 1J2
Canada
Allied Systems
Attn: Thomas Duffy
160 Claremont Avenue
Suite 600
Decatur, GA 30030
IBT Local 938
275 Matheson Blvd. East
Mississauga, ON L4Z 1X8
Canada