IN RE: HOFFA UNITY SLATE,
Protest Decision 2001 EAD 516
Issued: October 22, 2001
OEA Case No. PR101214AT
The Hoffa Unity slate ("Hoffa slate") 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 Tom Leedham Rank and File Power slate ("Leedham slate"). The protest alleges that supporters of the Leedham slate campaigned inside the Miami, Florida facility of Consolidated Freightways ("CF") in an area where, as non-CF employees, they had no pre-existing right, on October 4, 2001, in violation of the Article XI, Section 1(b)(2) of the Rules.
Election Administrator representative Dolores Hall investigated the protest.
Findings of Fact and Analysis
On Thursday evening, October 11, 2001, at approximately 6:15 p.m., Vernon Fisher, a city driver and chief steward for Local 355 at CF, was in the break room there doing paperwork before going home for the evening. Fisher stated a discussion ensued with another CF driver regarding a grievance and he called Don Marr, Local 355 secretary-treasurer and business agent, to discuss the matter. While on the telephone with Marr, Fisher says that Armadio Bianchi and "another guy" came walking in. Fisher reported Bianchi's presence to Marr, saying that the two were distributing videotapes to drivers present in the room. After discussion with Marr, Fisher told Bianchi he was not allowed to distribute the tapes inside the building. The campaigners then went outside. However, Fisher says they returned a short time later and took part in a discussion of driver roadwork on the week-ends. Fisher says Bianchi and the other man went in and out of the break room "a couple of times," and discussed the International officer campaign with CF workers when they did so. Fisher says he went home while the discussion about the week-end runs was taking place, and that Bianchi and the other man were still there when he left.
Armadio Bianchi and Lucio Sierra, truck drivers for Roadway Express and members of Local 355, admit they visited CF Miami on October 11 to distribute copies of the Hoffa/Mack debate tapes. Bianchi is chief steward for Local 355 at Roadway. Bianchi says he advised the dispatcher upon arrival at CF that they would remain in the parking lot and the dispatcher had no problem with that. Bianchi says that, after a while, they went into the break room to use the bathroom and he brought the tapes with him. While in the break room, he became engaged in a lengthy discussion about the local's seniority system as it applied to driver roadwork on the week-ends. He admitted, however, that he also distributed the tapes while in the break room. Bianchi stated that it is common knowledge that he is a Leedham supporter, and claims he merely told the members to view the tape and make their own decision. Bianchi stated he did not distribute Leedham campaign material, nor did he ask anyone to vote for Leedham. Bianchi stated there were approximately 10 to 15 people in the break room and he remained there talking for about 30 to 45 minutes. Bianchi estimated that between the yard and the break room, he distributed about 15 to 20 tapes. Bianchi admits that he told people that Hoffa didn't "show up" for the debate and that is the reason the other person debated Leedham. Bianchi argues that mere distribution of the tape depicting candidates from both slates cannot be considered campaigning.
Don Marr confirmed that he was on the telephone talking with Fisher when Fisher informed him that Bianchi and another man had just walked into the break room at CF. He says Fisher told him they were distributing videotapes. Marr says he contacted Joseph D'Amelio, the CF Terminal Manager, the following day because he knew that CF has 24-hour security cameras in the break room, among other places at the facility. He advised D'Amelio about Bianchi and Marr. D'Amelio and the two CF stewards later reviewed the security tape to learn how the men had gained access to the break room. Marr says the tape clearly shows Bianchi and another man in the break room distributing tapes. Marr says that D'Amelio was very upset about the unauthorized entry of the two into the break room because it indicated a breach of CF's security system. Marr stated campaigning has never been allowed in the CF break room. He stated all campaigning has always been confined to the parking lot.
D'Amelio confirmed that his security tape of the break room show the two individuals entering through the door. D'Amelio says the door in question is locked from the inside and is not accessible from the outside. He believes a CF driver went out of break room door and the two came in while the door was open to allow the employee to exit. D'Amelio says the tape shows the two men distributing something to the drivers, and that it appeared they remained in the break room for approximately 45 minutes. D'Amelio stated there were no supervisors on duty at that end of the dock at the time since it was evening. D'Amelio says he has been at CF in Miami for 21 years and campaigning in the building has never been allowed. He stated campaigning is allowed only in the parking lot.
D'Amelio emailed still photos taken from the videotape that depict Bianchi and Sierra in the break room with the tapes.
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 the campaigners violated the Rules when they campaigned inside the CF facility on October 11, 2001.
We note, however, that the viability of the above precedent is called into question by the Election Appeals Master's recent decision in Cobb, 01 EAM 100 (October 19, 2001), where it was held that in protests alleging improper access to employer property by campaigners, "to state a viable protest, the candidate or campaigner must affirmatively establish that he specifically requested, on reasonable notice, access and was denied access." Despite the lack of such evidence here, we nevertheless adhere to our position as announced in the above-cited Election Administrator decisions because we conclude that campaigners for other candidates would know by CF's past acts that there was no pre-existing right to campaign within the CF Miami facility. We will assume that, despite the above-quoted words, the Election Appeals Master did not mean to require that an access request be made by a protestor where, because of such past acts, there can fairly be said to be no such pre-existing right.
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), where we found that candidate Hoffa had engaged in such conduct. In Cobb, supra, 2001 EAD 464, we ordered similar relief for a similar violation involving by, inter alia, candidate Keegel. And in Franken, 2001 EAD 457 (September 18, 2001), we ordered similar relief where an unidentified supporter of candidate Leedham engaged in similar conduct.
To remedy the violation here, we order the Leedham slate to pay the full costs for a one-page campaign mailing by the Hoffa slate to all Local 355-represented Miami area CF employees. The Leedham slate shall advance the money to the Hoffa slate for this mailing by the close of business on October 23, 2001. Payment should be forwarded to the Hoffa slate care of Todd Thompson, 209 Pennsylvania Avenue, SE, Washington, DC 20003 for receipt by that time. Local 355 shall cooperate in fulfillment of this order by promptly providing the Hoffa slate with the names and mailing addresses of all its members employed by CF in the Miami area.
We will refrain from ordering any fine in this case since, unlike the situation in Cobb, 2001 EAD 509 (October 16, 2001), rev'd, 01 EAM 100, where a fine was assessed, the violation found here was not that of a candidate, but rather that of a rank-and-file supporter.
We will defer for the present any determination of the question of whether the Leedham 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 516
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 390
12365 West Dixie Highway
North Miami, FL 33161
Consolidated Freightways
Joseph D'Amelio
3355 NW 41st Street
Miami, FL 33142
Armadio Bianchi
1201 SW 128 Terrace
E-409
Pembroke Pines, FL 33027
Lucio Sierra
8330 SW 32 Terrace
Miami, FL 33155
Dolores C. Hall
1000 Belmont Place
Metairie, LA 70001