IN RE: JOHN CORBOY, JR. and
DAVID CORBITT, Protestors.
Protest Decision 2011 ESD 213
Issued: April 15, 2011
OES Case Nos. P-204-030811-AT
and P-205-030811-AT
John Corboy, Jr., and David Corbitt, members of Local Union 82, filed separate pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). Both protests alleged that Local Union 82's website promoted the delegate candidacy Leif Thornton in violation of the Rules. In addition, Corbitt's protest alleged that Thornton and another delegate candidate, Kevin McNiff, violated the Rules by campaigning using employer equipment and on employer-paid time
These protests were consolidated for investigation and decision. Election Supervisor representative Peter M. Geraghty investigated them.
Findings of Fact and Analysis
Local Union 82 was placed under emergency trusteeship on September 27, 2010. On the same date, General President Hoffa appointed Denis Taylor as Trustee. Taylor serves as president of Local Union 355 in Baltimore, Maryland, in addition to his duties as Trustee of Local Union 82.
Local unions in trusteeship are permitted by Article III, Section 5(a)(3) of the IBT constitution to send delegates to the IBT convention provided those delegates are elected by secret ballot. Based on its membership size, Local Union 82 is entitled to one delegate to the IBT convention. At the nominations meeting held February 20, 2011, Leif Thornton, Kevin McNiff, and Joseph Previti were nominated for this position.
Thornton is vice president of Local Union 82. When Taylor became Trustee, he took full charge of the affairs of the local union under Article VI, Section 5 of the IBT Constitution. A hearing was conducted in December 2010 to determine whether to continue the trusteeship. On April 4, 2011, General President Hoffa adopted the hearing panel's recommendation and continued the trusteeship. Taylor received Hoffa's decision on April 6. At that point, he exercised his authority as Trustee to remove all officers of the local union, Thornton included.
Protests concerning Local Union 82's website
When these protests were filed, Local Union 82's website listed Thornton as vice president and displayed his photo. The website did not mention Thornton's delegate candidacy. The website also contained a link to the site of a charitable cause, Teamsters Against Cancer, Thornton had organized to raise funds for cancer research through a bicycle ride.
Thornton's name, title of vice president, and his photo were deleted from the local union's website on April 6 when Taylor removed the local union's officers, but the link to the Teamsters Against Cancer remains active. The Teamsters Against Cancer site describes the organization's purpose and reports on a 900 mile ride that occurred in June 2010; it also displays several photos of Thornton in biking gear. The site does not identify Thornton as a delegate candidate or otherwise promote that candidacy.
The protests alleged that Thornton received impermissible union support for his delegate candidacy through local union's website. We DENY this aspect of the protests. Article VII, Section 12(b) prohibits use of union resources to campaign. A local union can, and should, identify its officers to the membership. The Rules do not bar a local union from posting on its website the name and photo of an officer who also is a delegate candidate, where that post does not identify the officer as a candidate or otherwise promote his candidacy. Similarly, a local union may link its website to others that it determines may be of interest to its membership without violating the Rules. The link to the Teamsters Against Cancer site is not inappropriate.
Protest concerning use of employer-provided cell phone for campaigning
Corbitt's protest also alleged that delegate candidates Thornton and McNiff used cell phones provided by their employer, Freeman Decorating Company, for campaign purposes. Corbitt alleged that Thornton distributed campaign cards that listed his employer-provided cell phone number as a means to contact him.
Thornton stated he has used his employer-provided cell phone to campaign and has distributed campaign cards listing that phone number. He stated that Freeman provides cell phones to all of its drivers, and that he pays a monthly charge for unlimited service. Thornton further stated that his employer has never provided him a written policy concerning use of the phone, and the only limitation he has been told of is that he must pay for calls to 411.
McNiff, a shop steward at Freeman, also has an employer-provided cell phone for which he pays a monthly fee for unlimited service. McNiff also stated that Freeman requests that the cell phone not be used for personal calls during working hours. According to McNiff, Freeman has placed no limit on personal use of the cell phone during non-work hours.
John White, Freeman's assistant general manager, told our investigator he is unaware of any written policy concerning personal use of the cell phones provided to employees.
Article XI §1(b)(2) of the Rules prohibits employer contributions to campaigns. We find no violation of this provision here. Although Freeman provided cell phones to employees, it did not prohibit personal use of the phones. Moreover, employees paid Freeman a monthly fee for unlimited service, which suggests that Freeman contemplated that the employees would use the phones for personal business. Absent a clear policy to the contrary, we find that employees are permitted personal use of the employer-provided phones, and that such use may include campaign calls without violating the Rules. Accordingly, we DENY this aspect of Corbitt's protest.
Protest concerning campaign activity on employer-paid time
Corbitt's protest also alleged that Thornton reported late to work on February 24 and 25 because he was campaigning but that his employer did not reduce his pay on those days. This failure, the protest argued, constituted an impermissible employer contribution to Thornton's campaign.
Thornton conceded he was late to work on two dates because he was campaigning at other worksites. On the first date, Thornton said he campaigned at Spry Moving in Woburn, Massachusetts and was thirty minutes late to Freeman because of heavy traffic. Thornton stated he called his supervisor, David Blackham, to advise he would be late, and Blackham allowed him to work through his lunch break to make up the missed time without loss of pay. Thornton claimed Freeman frequently accommodates employees' personal schedules by permitting them to make up time by working through breaks.
On the second occasion, Thornton claimed he reported to work at 8:15 a.m., fifteen minutes late. This time, he campaigned at J.N. Muldoon Company in Stoughton, Massachusetts before work. Thornton said he contacted Blackham again to say he would be late. However, Thornton said Russell Taintor, Blackham's boss, was upset at the tardiness and did not allow Thornton to make up time by working through a break. Accordingly, Thornton was docked 15 minutes' pay. Thornton said Taintor told him that he would be sent home if he was late for work again.
Freeman's John White stated that employees fill out time cards daily, writing the times they arrive at and leave work. At the end of the week, employees are paid for the hours recorded on those cards. White stated that supervisors have discretion to address employee tardiness through several options. Thus, a supervisor may let an employee work through lunch to make it up, may dock the pay, or may send the employee home without pay.
White's contention that it is not unusual to allow an employee to work through a break after showing up thirty minutes late for work is directly contradicted by McNiff, another delegate candidate employed at Freeman. McNiff stated he has worked at Freeman for some 25 years and is not aware of a single instance in which an employee was permitted to show up thirty minutes late and make that time up by working through a lunch break. McNiff stated that in his experience, Freeman would replace an employee who showed up that late to work, and the late employee would not be paid at all for that day. McNiff agree, however, that supervisors have discretion in handling tardy employees, with some supervisors more lenient than others.
The protest allegation is that the employer, Freeman, made an impermissible contribution to Thornton's campaign by permitting him to campaign on time paid by the employer. The facts do not support this allegation. In each instance at issue here, Thornton ceased campaigning and was enroute to work when his shift started. He did not campaign on work time.
We also reject the allegation that Thornton received preferential treatment under Freeman's tardiness policy that permitted him to campaign up to his scheduled starting time. Evidence showed that Thornton was not paid for the time he was late: in one instance, he worked through his unpaid lunch break to make up the time; in the other, his pay was docked. Further, Thornton, McNiff, and the employer's representative agree that the employee's supervisor has significant discretion as to how an employee's tardiness will be addressed. While McNiff claimed that no supervisor had discretion to permit an employee to be thirty minutes late, this claim was contradicted by the employer's representative and by Thornton's experience. Accordingly, we DENY this aspect of Corbitt's protest.
Protest claiming campaigning on union-paid time
Corbitt alleged that local union business agent Kevin McDermott campaigned on Thornton's behalf by appearing with him at Casey and Hayes Movers in South Boston on the morning of February 26. Investigation showed that Thornton campaigned there before 7:45 a.m., when employees began work for the day. While Thornton was campaigning, business agent McDermott appeared at the site to speak to some members about dues arrearages. The protestor presented no evidence that McDermott campaigned with or on Thornton's behalf at that time, and McDermott and Thornton both deny such activity. Accordingly, we DENY this aspect of the protest.
Protest claiming that Thornton is ineligible for delegate
Finally, Corbitt alleged that Thornton is ineligible for election to delegate because he was removed as local union vice-president. At the time the allegation was made, Thornton was still vice-president. Thereafter, on April 6, 2011, Trustee Taylor removed all local union officers, Thornton included, from their local union offices.
Thornton has been removed from local union office by Trustee Taylor, but he is not suspended from membership. Removal from office does not bar Thornton from running as a candidate for convention delegate. See Eligibility of Keller & O'Donnell, 2006 ESD 61 (February 7, 2006). Accordingly, we DENY this final aspect of Corbitt's 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
885 Third Avenue, Suite 1000
New York, NY 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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, 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
2011 ESD 213
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Hall 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Fred Zuckerman
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Denis J. Taylor, President
Teamsters Local Union 355
841 Meadow Heights Lane
Arnold, MD 21012
Teamsters82@hotmail.com
John Corboy, Jr.
67 Colby Drive
Middleboro, MA 02346
jcorboyjr@gmail.com
David Corbitt
7 Hardy Street
South Boston, MA 02127
Davidcorbitt71@gmail.com
Leif Thornton
LT7361@hotmail.com
Peter Geraghty
730 Hancock Street
Quincy, MA 02170
pmg@morisi.com
David F. Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com
Maria Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com
