IN RE: LARRY LEE HOGUE, Protestor.
Protest Decision 2006 ESD 234
Issued: May 17, 2006
OES Case No. P-06-201-030606-SO
Larry Lee Hogue, a member and delegate candidate from Local Union 528, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that local union president Don Toney and his slate used the Local Union 528 membership list to make campaign telephone calls; that the Toney slate posted campaign literature under the glass of union bulletin boards; that business agents placed campaign literature in the breakroom of an employer where they had no responsibility; that Local Union 528 failed to post notices of nominations meeting results at all required locations; that business agent Dan Sandy questioned shop steward Maurice Simpkins about his support in the upcoming delegate election; and that Local Union 528 arranged to fly two members out of town to campaign, all in violation of the Rules.
Election Supervisor representative Dolores C. Hall investigated this protest.
Findings of Fact and Analysis
1. Local 528 membership list used to make campaign calls
The protestor alleges that the Toney slate used the Local Union 528 membership list to make telephone calls to members urging them to vote for the Toney slate. Toney is president of Local Union 528. The protestor claims that his slate, the Members' slate, was not offered the same opportunity.
Hoffa 2006 contracted with Stones' Phones, an automated phone banking service, to conduct a phone bank on behalf of the Toney slate in late February and early March. The Hoffa campaign supplied a phone-matched membership list for Local Union 528; the list was derived from the IBT membership list delivered to James Hoffa after he became an accredited candidate in September 2005. Toney recorded a message that Stones' Phones used in calling the telephone numbers the Hoffa campaign supplied. The Hoffa campaign paid the cost of the phone banking.
Coinciding with the automated phone banking with recorded messaging, Maurice Cobb, secretary-treasurer of Local Union 528 and a member of the Toney slate, made live calls to members seeking their support. Cobb stated that he did not use the telephone numbers from the local union's database; instead, he used telephone numbers members provided when they signed petitions he circulated in 1999 and before he became an officer in 2005. Cobb stated that he keeps the phone numbers from the petitions at his home.
No evidence was presented that union funds or other things of value were used to make the telephone calls, and our investigation found none. We find that Toney did not provide the Local 528 membership list to Stone's Robotic Service. The use of the telephone bank by the incumbent slate as supporters of the Hoffa slate is not a violation of the Rules. Rhinier, 2006 ESD 126 (March 4, 2006). In addition, Cobb's possession of telephone numbers not in the Local database confirms that fact that he did not use information obtained by virtue of his officer position.
Accordingly, we DENY this aspect of the protest.
2. Campaign literature posted inside glass-enclosed bulletin boards
The protestor alleges that Toney slate flyers were posted under the glass of the local union's bulletin board at Gate Gourmet kitchen #300 and at Air Tran Airways at Hartsfield Jackson Airport.
Toney responded that he was unaware that campaign literature was on bulletin boards under glass until he received the protest. Upon learning of the protest, he immediately sent someone to Gate Gourmet who found that literature was not there. In addition, Toney claims that the steward who has the key to the bulletin board at Gate Gourmet is a candidate on the protestor's slate.
To support this allegation, the protestor directed us Tony Scalera. Scalera provided a written statement to our investigator in which he charged that the protestor has fabricated stories and taken things out of context.
No evidence was provided that a Toney campaign flyer was posted under the glass of the union bulletin board at Air Tran.
Toney directed his business agents to monitor the glass-enclosed bulletin boards at both locations to insure that campaign material was not posted.
We find no merit in the protestor's claims that campaign literature was posted under glass bulletin boards at either location. The Gate Gourmet shop steward with the key to the bulletin board is a member of the protestor's slate, and we find it unlikely that this person would post or permit posting of a flyer supporting his electoral opponent. Further, the protestor's witness involving the Hartsfield Jackson Airport bulletin boards accused the protestor of fabrication. Finally, Toney instructed business agents to remove campaign material found behind glass bulletin boards.
Accordingly, we DENY this aspect of the protest.
3. Campaign material in the breakroom
The protestor alleges that business agent John Mays and secretary-treasurer Maurice Cobb placed campaign material in the break room at the Lawrenceville terminal, an employer of Teamsters car haul members. The protestor claims that May and Cobb are not car haul representatives.
Toney stated that each time he was notified that the nominations results notice was not posted, he asked a business agent to investigate. In addition, Toney requested that officers and business agents check bulletin boards whenever they were at a facility on union business and post the notice if it was not posted.
According to Cobb, he and John Mays had union business at Georgia Pacific, which is about a mile from the Lawrenceville terminal. He said that they went to Lawrenceville in response to Toney's directive concerning complaints that the notice of nominations meeting results notice was not posted. Cobb and Mays checked the bulletin board and found that the results notice was half covered by other postings, so they reposted it. Cobb stated that they went into the employee breakroom and saw campaign literature from both slates on the table; Cobb denied that he placed campaign material in the breakroom, and there is no contrary evidence.
Even had Cobb placed campaign literature on the table, such an action would have been incidental to his duty as assigned by Toney to check all bulletin boards when traveling near a union facility to insure that a required notice was posted.
Therefore, we DENY this aspect of the protest.
4. Failure to post notice of results of nominations meeting.
The protestor alleges that no posting of the results of the nominations meeting was made at any Air Tran, Gate Gourmet and Courtland Street facilities, or at Ferro Corp., Avis, Hartsfield Jackson Airport, and Bobby Brown parkway.
The protestor acknowledged to our investigator that members were tearing down notices posted on bulletin boards.
Toney stated that he instructed business agents to check the bulletin boards and post the notice if it was not there. According to Toney, all locations were checked in late January and if notices were missing, they were reposted. After receiving this protest, Toney again had all bulletin boards checked. Toney then confirmed that the notice of nominations meeting results was posted at all locations that were the subject of this protest.
Article II, Section 6(a) of the Rules provides in relevant part that "as soon as possible but in no event later than five (5) days following the nomination meeting(s), the Local Union Secretary-Treasurer shall post on all Union bulletin boards a list of all nominated candidates, by name (and by slate affiliation, if known at the time)."
We find that Local Union 528 complied with this requirement of the Rules. When information regarding lack of posting was presented to Toney, he sought to remedy it immediately.
Accordingly, we DENY this aspect of the protest.
5. Business agent asking about shop steward's vote
The protestor alleges that business agent Dan Sandy questioned shop steward Maurice Simpkins at a grievance hearing as to whether he would support Don Toney in the delegate election.
According to Simpkins, he did not feel intimidated by Sandy's question, although he did ask Sandy if he would be removed from his steward position if he said "no." Simpkins then told Sandy it was none of his business who he was supporting.
Sandy denied that he asked Simpkins whether he would vote for Toney. Sandy told our investigator that he asked Simpkins whether he thought the members would support Toney. Sandy denied that Simpkins appeared intimidated by the conversation.
There is no evidence that Simpkins was coerced or intimidated by Sandy's question, regardless of the version of the exchange that actually occurred.
Therefore, we DENY this aspect of the protest.
6. Employer contributions for campaign purpose
The protestor alleges that Local Union 528 arranged with Air Tran Airways for two Air Tran shop stewards to travel to outlying Air Tran stations to campaign for the Toney slate.
Investigation found that stewards Gary Lawford and Gary Gregg traveled during the election period to outlying locations. However, Gregg and Lawford did so for the purpose of policing the collective bargaining agreement, addressing members' work-related concerns, and discussing grievances, changes taking place within the company, training, and related issues. The collective bargaining agreement with Air Tran provides for this benefit, and such trips are taken periodically for that purpose.
John Mays, business agent for Air Tran, denied that Lawford and Gregg traveled to outlying Air Tran locations for the purposes of campaigning. Toney denied any knowledge of the trips.
Article XI, Section 1(b)(2) of the Rules prohibits employer contributions to any candidate.
No evidence suggests that Gregg and Lawford traveled to the outlying stations for the purpose of campaigning or actually campaigned while there. Conversely, there is testimony that the trips are routine and are taken to perform union business.
Therefore, we DENY this aspect of 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 Supervisor 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 the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 234
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Larry Lee Hogue
385 Davis Road
Hiram, GA 30141
Don Toney
President, Local Union 528
2540 Lakewood Avenue, S.W.
Atlanta, GA 30315
Maurice Cobb
121 Fox Run Court
McDonough, GA 30253
John Mays
10165 Rivertown Road
Fairburn, GA 30213
Dan Sandy
587 Ribbon Lane
Conyers, GA 30094
Air Tran Airways
955 Air Tran Blvd.
Orlando, FL 32827
Dolores C. Hall
1000 Belmont Place
Metairie, LA 70001
hall1000@cox.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com