Protest Decisions

            The Sandy Pope campaign filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that campaigning on behalf of the Hoffa-Hall 2011 slate occurred inside a UPS hub in New Orleans, Louisiana, in violation of the Rules.

            Election Supervisor representative Dolores Hall investigated this protest.

Findings of Fact

            UPS maintains a firm policy restricting access to all non-public facilities, including its hub on Morrison Road in New Orleans, Louisiana, to its own employees.  The single exception relevant here is that UPS permits some union representatives who are not UPS employees to enter its facilities to conduct union business.

            The protest alleged that Local Union 270 president David Negrotto, two local union business agents, and “an IBT official identified as an International Vice President” campaigned inside the UPS/Morrison Road facility in New Orleans in October.  Investigation revealed the IBT official was Tyson Johnson, IBT Southern region vice president and candidate for reelection to that position.

            Investigation showed that Johnson, Negrotto and business agents David Baynes and Steve Sorrell campaigned in the parking lot of UPS/Morrison Road for 30 to 45 minutes prior to the start of drivers’ day shift on October 20.  During that campaigning, they distributed Hoffa-Hall 2011 flyers[1] and urged arriving drivers to vote for that slate. 

            Rob Russell, a regional labor relations representative for UPS, had learned on a previous day that campaigning would occur at UPS/Morrison Road on October 20.  Russell, who has labor relations responsibility for the area that includes Texas and Louisiana, arranged to be present at Morrison Road to insure that no problems occurred.  He was present at the facility when Johnson and the others arrived in the parking lot to campaign.

            Toward the end of the campaign activity, Russell walked out to the campaigners in the parking lot and introduced himself to Johnson.  Russell invited Johnson to enter the facility and address the drivers during the pre-shift meeting.  Russell told our investigator that he made this offer because Johnson is an IBT vice president.  Russell told Johnson that he would not permit Johnson to campaign to the drivers, merely to speak with them.  Johnson accepted the invitation.

            Johnson spoke to the drivers’ meeting briefly.  According to Johnson, he introduced himself and said that an election is going on.  He said that the members should have received a ballot in the mail.  He said he urged the members to vote their ballots and mail them in.  He said he told the drivers that he was not telling them who to vote for, that he was only there to encourage them to vote because he said turnout was down.  With that, Johnson said he ended his remarks and left the building.  He returned to the parking lot, and then left the grounds.  Johnson denied that he told the drivers, during his remarks inside the facility, that he was a candidate or a member of a slate of candidates and he denied asking for their support or their votes.  The drivers in the meeting, however, had just arrived for work and ,shortly before the remarks inside the facility, many of the drivers in attendance had received Hoffa-Hall 2011 campaign flyers from Johnson and the other union representatives in the parking lot.

            Local union president Negrotto told our investigator that he attended the drivers meeting with Johnson.  Business agent Sorrell also attended.  The three left their campaign flyers with Baynes, who remained in the parking lot campaigning.  Negrotto said that UPS center manager Joey Bernard introduced Negrotto, who in turn introduced Johnson.  According to Negrotto, Johnson thanked the members for putting him in the position he occupies with the IBT.  Johnson then said that not very many members were voting.  He advised those present that a lot of effort had been expended to get the members the right to vote, and he urged them to exercise that right.  He advised those present that he was not trying to influence their vote; instead, he merely urged them to vote for whomever they please and return their ballots.  He provided the toll-free number members should call if they had not received a ballot or had misplaced it.  According to Negrotto, Johnson’s remarks lasted about two minutes.  Negrotto said that, on their way out of the building, he, Johnson and Sorrell shook the hands of several UPS employees.

            UPS center manager Bernard told our investigator that he was present for the duration of Johnson’s remarks.  He said that Johnson told the drivers that he was “not there to influence them to vote one way or the other but only to encourage them to vote.”

            Russell told our investigator that he attended the drivers meeting at which Johnson spoke and confirmed that Johnson did not campaign for himself but did urge members to vote.

            Three drivers described Johnson’s remarks.  One said that center manager Bernard announced to the group that “some people from the IBT want to talk to you.”  Johnson then mentioned the election and asked the members to vote for Hoffa.  The second driver heard Johnson mention the election but did not hear him ask the members to vote for Hoffa.  The second driver said he got in his UPS truck to head out for his rounds; when he passed the gate, Baynes handed him a Hoffa-Hall 2011 flyer.  A third driver, completing his shift that morning, walked past the meeting as it was concluding.  He heard a speaker tell the drivers to vote for the candidates they wanted to support.

            Less than a week later, Sandy Pope, candidate for IBT General President, campaigned in the parking lot of UPS/Morrison Road.  Both center manager Bernard and regional labor relations manager Russell saw Pope campaigning and knew who she was.  Pope was not invited in to address any meeting of members.  Bernard told our investigator that, if Pope had asked to address employees, she would have been permitted to do so.

Analysis

            The Rules prohibit an employer from contributing anything of value to a candidate.  Access for a campaign purpose to a facility not open to the public is a thing of value to that candidate.  Here, UPS maintains a strict policy prohibiting access to its non-public buildings for campaign purposes by persons who are not its employees.  Whether UPS violated the Rules by inviting Johnson to enter the facility and address a mandatory meeting of drivers turns on whether the speech indoors constituted campaign activity.  We conclude that it did.  Accordingly, we find that UPS made an impermissible contribution to Johnson’s campaign.

We reach this conclusion even though we find that Johnson did not advocate for his own candidacy or that of the Hoffa-Hall 2011 with the words he used in the drivers meeting.  In the parking lot, Johnson and others distributed leaflets bearing his photo and exhorted arriving drivers to support his candidacy.  Minutes later, Johnson appeared indoors and spoke to many of the same individuals who saw him campaigning outside.  Although the indoor message was facially non-partisan, it cannot be meaningfully separated from the campaigning outside.  In particular, where Johnson in the parking lot said “vote for me,” he was in no position to deliver a credible non-partisan message immediately thereafter to the same audience.  While in the parking lot, Johnson could have campaigned for himself or delivered a non-partisan GOTV message as he chose.  When he accepted the employer’s invitation to speak indoors at a mandatory meeting of drivers, however, on the heels of campaigning to that same audience in the parking lot, the employer became the sponsor of Johnson’s overall message to the drivers.  This effect was reinforced, several days later, when UPS management at the facility did not invite Pope inside to address a mandatory meeting, suggesting to drivers that the invitation was not extended because management does not support the Pope candidacy.  For these reasons, we find that UPS violated the Rules by making an impermissible contribution to Johnson and Hoffa-Hall 2011.

We further find that Johnson violated the Rules by accepting the benefit UPS offered.  Johnson had the option to decline Russell’s invitation to address the meeting, an option he should have taken.  By accepting it, Johnson willingly took the advantage that UPS offered.

            Accordingly, we GRANT the protest.

Remedy

When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.” Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.

We order UPS to cease and desist from making impermissible contributions to any candidate.  When candidates or their supporters campaign in employee parking lots, a right protected by the Rules, management should take no action to grant them any campaign advantage not sanctioned by the Rules.

We order Johnson, all other members of the Hoffa-Hall 2011 slate, and all supporters of that slate, to cease and desist from violating the Rules. 

We order Local Union 270 to post the notice attached to this decision on its worksite bulletin boards at the UPS/Morrison Road facility.  The notice posting must be completed within one day of issuance of this decision and maintain the posting for 30 consecutive days.  Within one day after the posting is completed, the local union must submit a compliance affidavit to OES.

This is the third instance in which we have found a member of the Hoffa-Hall 2011 slate used his union status to gain access to a non-public area of an employer facility for a campaign purpose.  To deter further violations of this nature, we impose a fine on Hoffa-Hall 2011 of $2,000, which must be paid to OES within two days of issuance of this decision. 

The finding of violation here comes when the time for returning ballots in the election has nearly expired.  Accordingly, we do not order a remedial campaign mailing for other candidates, as the mailing will arrive too late to influence members’ votes.  Further, we recognize that the notice posting we order will occur after the last date members may mail their ballots and reasonably expect that they will arrive at the ballot count facility in time to be counted.  Accordingly, we reserve any further remedy for this violation.

            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.