IN RE: RICK FYVIE,
Protest Decision 2001 EAD 517
Issued: October 22, 2001
OEA Case No. PR100516CA
Rick Fyvie, Vice President 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"). Fyvie represents Local 938 members employed by Maxxim Medical ("Maxxim") and alleges that Local 938 members Joseph Jephson, Byron Mortley, and Dave Scott violated the Rules by threatening Maxxim's vice president of operations while campaigning.
Election Administrator representatives Gwen Randall and Jason Weidenfeld investigated the protest.
Findings of Fact and Analysis
On September 10, 2001, campaigners for the Tom Leedham Rank & File Power slate came to Maxxim to campaign in the parking lot. According to Maxxim human resources director Al Todd, the campaigners gave no advance notice of their visit. They said they were from the Teamsters and told Maxxim's vice president of operations Karl Thompson that he was a "little man" that they could take care of; Thompson took it as a threat and forced the campaigners to leave. The campaigners state that they made no threats and simply showed the vice president the decision approving parking lot access.
In an investigation of the earlier protest arising from the incident, decided in Leedham Slate, 2001 EAD 476 (September 27, 2001), Todd revealed to our investigator that he spoke with Fyvie about the incident on the day it occurred. Todd reiterated this fact with our investigator in this protest case. Todd and Fyvie discussed what had transpired that day and local union procedure for posting notices and publications on local union bulletin boards. Todd stated that Fyvie asked him to convey his apologies to Thompson.
Fyvie alleges that he did not know of the alleged threats until he received a copy of a September 27, 2001, letter from Todd to Gwen Randall stating that Local 938 members Joe Jephson, Byron Mortley, and Dave Scott would not be permitted to enter Maxxim's facility because they had "threatened our V.P. of operations on the morning of September 10th, 2001." Although Fyvie admits that he spoke with Todd on September 10, 2001 regarding campaigning rights under the Rules, he denies knowing until he received Todd's letter on October 4, 2001 that the campaigners had allegedly threatened Maxxim management.
We find that Fyvie knew about the incident on the day that it occurred. To have his protest considered timely Fyvie must allege that he did not know about the September incident until he received Todd's letter. In contrast, Todd has little reason to fabricate the substance or timing of his discussions with Fyvie and even asserts that Fyvie apologized for the campaigners' actions. Such an allegation from a disinterested party is at odds with Fyvie's claim that he knew nothing about the incident until Todd's letter of October 4, 2001. The receipt by Fyvie of the letter does not change our finding that Fyvie knew about the incident when it occurred. Fyvie filed this protest on October 4, 2001, more than three weeks after the incident. The Rules require members to file a protest "within two (2) working days of the day when the protestor becomes aware ... of the action protested." The protest is untimely.
In addition, even were we to assume the truth of the protestor's allegations, the protest would fail to state a claim. Article VII, Section 11(g) of the Rules prohibits retaliation "against a Union member, officer or employee for exercising any right guaranteed by" the Rules. The Rules are not designed to prescribe employers' rights against IBT member employees; employers thus do not have a right to protest under the Rules. Article XIII, Section 1. The campaigners' alleged threats were made to Maxxim's management, not to any Union member, officer, or employee. Furthermore, the protestor does not identify anyone whose rights under the Rules were curtailed. Although the protestor states reasons for being concerned with the incident, including the potential erosion of management-labor relations at Maxxim, he does not identify any violation of the Rules.
Accordingly, for both reasons, we DENY the protest.
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 517
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
P.O Box 6678
Arlington, VA 22206
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, TX 75207
Rick Fyvie
2-601 Galahad Dr.
Oshawa, ON L1K 1L9
Canada
IBT Local 938
275 Matheson Blvd. East
Mississauga, ON L4Z 1X8
Canada
Joe Jephson
510-27 Bergamount Ave.
Toronto, ON M6V 1W5
Canada
Dave Scott
59 Wildberry Crescent
Brampton, ON L6R 1J9
Canada
Byron Mortley
211-1759 Bloor Street East
Mississauga, ON L4X 1S7
Canada
Maxxim Medical Canada Limited
Al Todd
Human Resources Director
2460 S. Sheridan Way
Mississauga, ON L5J 2M4
Canada
Gwen Randall
421 Seventh Ave., SW
Calgary, AB T2P 4K9
Canada