Protest Decisions

              October 2, 1996

VIA UPS OVERNIGHT

James P. Hoffa

October 2, 1996

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

Central Transport, Inc.

29129 Ecorse Road

Romulus, MI  48174

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Central Transport, Inc.

12225 Stephens Road

Warren, MI  48089

Nathaniel K. Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY  10036

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

James P. Hoffa

October 2, 1996

Page 1

Re:  Election Office Case No. P-957-IBT-MGN

Gentlemen:

James P. Hoffa, a member of Local Union 614 and candidate for general president, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Central Transport, IBT an employer, Ron Carey, IBT general president and candidate for reelection, and the Carey campaign.  Mr. Hoffa alleges that Mr. Carey and his campaign violated the Rules by campaigning in the loading dock area of Central Transport (also known as “Central Cartage”) on September 5, 1996.  Mr. Hoffa also alleges that Central Transport violated the Rules by denying Mr. Hoffa the opportunity to campaign at Central Transport and that Central Transport made, and Mr. Carey received, an employer contribution, prohibited by the Rules.

James P. Hoffa

October 2, 1996

Page 1

Mr. Carey admits that he visited Central Transport on September 5, 1996 and that he talked to employees in the loading dock area, but denies that he campaigned there.  Mr. Carey states that discussions he had with Central Transport employees on September 5 concerned contract negotiations and other local union matters, and did not constitute campaigning, under the Rules.

Central Transport states that it neither invited nor permitted Mr. Carey to campaign on its loading dock and further states that as soon as it became aware of the campaign activity, it acted promptly to curtail it.  It states that it did not permit employees to cease work during Mr. Carey’s visit, that it ordered them to return to work, and that Mr. Carey was asked to leave.  Central Transport also states that it denied Mr. Hoffa’s request to campaign in Central Transport’s work area because it does not allow campaigning on its premises.

The protest was investigated by Regional Coordinator William A. Wertheimer, Jr.

In the course of investigating this matter, the Regional Coordinator interviewed Local Union 299 President Don Smith, Central Transport President Kirk Cummings, and two Central Transport employees present at the time of Mr. Carey’s visit, Jeff MacTavish and Local Union 299 Steward Ken Kwapisz.  The Regional Coordinator also obtained a written statement from Anthony J. Curvey, the terminal manager on duty at the time of Carey’s visit, and a copy of a letter from Mr. Cummings to Mr. Smith that protested the Carey visit.

Local Union 299 Steward Ken Kwapisz states that on the day in question he received a telephone call from Mr. Smith who said that Mr. Carey was in town, that he was on his way to the airport, and that he wanted to stop by Central Transport and meet Mr. Kwapisz.

The following statement of events by Mr. Curvey is consistent with testimony of other witnesses. 

Mr. Curvey states that at approximately 3:20 p.m. on September 5, he was advised of the presence of an unidentified group in the loading dock area.  He went to investigate and found Mr. Carey and other union members talking to a forklift operator.  Mr. Curvey recognized Mr. Kwapisz, Mr. Carey, Mr. Smith and Dan Duby, a Local Union 299 member.  Several members of the group were unfamiliar to him.

Mr. Curvey approached the group, informed them that their presence was not condoned by Central Transport, and stated that he was going to call Central Transport’s labor department to report the incident.  He did so and was instructed by Central Transport President Kirk Cummings to order the Carey party to leave.

Mr. Curvey states that he returned to the loading dock area, where he observed that employees had stopped working and were gathered around Mr. Carey.  It appeared to

Mr. Curvey that the employees were questioning Mr. Carey about local union matters. 

Mr. Curvey informed the group that the situation was not acceptable and told them they had to leave.  Mr. Curvey ordered the employees to return to work.  Mr. Curvey states that when he subsequently called Mr. Cummings to report on events, he was told that Mr. Cummings wanted to speak to Mr. Smith on the telephone.

James P. Hoffa

October 2, 1996

Page 1

Mr. Curvey states that he returned to the loading dock area, where he saw that the employees were returning to work.  Mr. Smith asked Mr. Curvey if the Carey group could “walk the dock,” and Mr. Curvey responded “absolutely not.”  Mr. Curvey repeated that the group was not permitted on the dock and that it had to leave as soon as Mr. Smith concluded his telephone conversation with Mr. Cummings.  Mr. Curvey remained in the loading dock area to monitor the group as it exited, which occurred at approximately 4:10 p.m.

Mr. Smith states that although the intended purpose of Mr. Carey’s visit was campaigning, neither he nor Mr. Carey campaigned because they were answering questions from employees about local union matters the entire time they were in the loading dock area.  

              Messrs. MacTavish and Kwapisz both state that they were present in the loading dock area at the time of Mr. Carey’s visit and that two or three members of the Carey group passed out campaign literature to employees in the loading dock area.  Mr. MacTavish has submitted copies of three separate pieces of the campaign literature, which he states were distributed to him by a member of the Carey group.

The Election Officer finds that Mr. Carey’s group did conduct campaign activities in the loading dock area of Central Transport on September 5, 1996.  Although it appears that Mr. Carey may have limited his remarks to matters of local union business, the Election Officer credits the testimony of the witnesses that members of the Carey group distributed campaign materials to employees during the visit.[1]

Central Transport states that on September 6, the day after Mr. Carey’s visit, it sent a letter of protest to Mr. Smith.  The letter states:

[W]e will not be a party to your attempts to use our dock for the purpose of campaigning, especially during working hours . . . Accordingly we strongly protest the unauthorized visit by yourself and Teamster President Ron Carey . . . you had to be asked to leave at least twice . . . In the future, we will take whatever legal action necessary to prevent these unauthorized visits.

James P. Hoffa

October 2, 1996

Page 1

In his protest, Mr. Hoffa alleges that he sought permission to campaign in the Central Transport loading dock area on September 10, 1996 and was denied.  Mr. Hoffa alleges that Central Transport violated the Rules by denying him equal access to campaign and that Central Transport made an improper employer campaign contribution to the Carey Campaign.  He further alleges that Mr. Carey and the Carey campaign violated the Rules by accepting Central Transport’s prohibited contribution. 

As non-employees, Mr. Carey and other members of his group had no right to campaign on Central Transport’s premises, except as provided by the Rules.  Article VIII, Section 11 creates a limited right of access to IBT members and candidates to distribute literature and seek support for their campaign in any parking lot used by union members to park their vehicles in connection with their employment.  Article VIII, Section II states, in pertinent part:

(iii) a candidate for International office and any Union member within the regional area . . . may distribute literature and/or otherwise solicit support in connection with such candidacy in any parking lot used by Union members to park their vehicles in connection with their employment in said regional area(s) . . . Nothing in this Subsection shall entitle any candidate or other Union member to access to any other part of premises owned, leased, operated or used by an employer.

It is undisputed that Mr. Carey’s group conducted its activities in Central Transport’s loading dock area, not the parking lot as authorized by this section of the Rules.

Article VIII, Section 11(d) of the Rules, protects pre-existing rights to access employer premises.

[N]o restrictions shall be placed upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on employer or Union premises.  Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.

This provision applies to non-employees if there is a pre-existing right.  Rud, P-766- LU320-NCE (May 23, 1996).  In this matter, however, no one has alleged such a pre-existing right for non-employees at the Central Transport facility and the Election Officer finds none. Central Transport states that it does not permit campaigning on its premises, and the evidence shows that it acted in a manner consistent with its stated policy.  Central Transport acted swiftly and decisively to curtail the campaign activities as soon as it became aware of them and wrote a letter of protest on the day after the campaigning occurred.

Accordingly, the Election Officer finds that Mr. Carey and other non-employees in his group did not have a right under the Rules to enter Central Transport’s premises to campaign.  The Election Officer further finds that such entry constituted a violation.

James P. Hoffa

October 2, 1996

Page 1

With respect to Mr. Hoffa’s allegation that Central Transport violated the Rules by denying him equal access, the Election Officer finds that Mr. Carey’s improper entry did not create a right of entry for Mr. Hoffa.  In Mee, P-860-LU85-CSF (August 28, 1996), the Election Officer addressed a similar claim that improper campaigning by a non-employee candidate on employer premises created a right for another non-employee candidate to enter.  The Election Officer rejected that allegation, recognizing that employers have legitimate property interests in restricting non-employee access to their premises.  In that matter, as in this one, an effective remedy can be ordered without infringing on such legitimate employer interests.

The Election Officer also rejects Mr. Hoffa’s allegation that Mr. Carey’s access to Central Transport’s loading dock constituted a prohibited employer campaign contribution.   Access to employer premises is dealt with specifically in the provisions of the Rules providing for parking lot access and protecting pre-existing rights.  The Election Officer examines allegations concerning access to premises under those provisions and not the general contribution rules.

For the reasons stated above, the protest is GRANTED as to prohibited campaigning by the Carey campaign and DENIED in all other respects.

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

The improper campaigning that took place in this matter involved the distribution of Carey slate campaign materials by members of the Carey campaign to employees of Central Transport working in the loading dock area of its Romulus facility on September 5, 1996.   In order to provide similar access to the Jim Hoffa-No Dues Increase-25 & Out-Slate and the Stand Up for Teamsters slate, without infringing on legitimate employer interests in restricting access by non-employees to employer premises, the Election Officer orders the following:

1.  The Carey campaign shall cease and desist from campaigning on the premises of Central Transport’s Romulus facility, except in its employee parking lot.

2.  The Carey campaign shall mail to every local union member working at Central Transport’s Romulus facility, campaign material provided to it by the Jim Hoffa-No Dues Increase-25 & Out-Slate and the Stand Up for Teamsters slate.  The material from each slate may consist of three pages of campaign material.  Each page shall be printed on one side of 8½  11-inch paper.  The mailings shall not be combined.  The Jim Hoffa-No Dues Increase-25 & Out-Slate and the Stand Up for Teamsters slate shall have five (5) working days from the date of this decision to submit the material to the Carey campaign, if they so choose, and the Carey campaign shall have five (5) working days from the date of submission to complete the mailing.  The Carey campaign shall bear the cost of duplication and first-class mailing.

James P. Hoffa

October 2, 1996

Page 1

3.  At the time the Jim Hoffa-No Dues Increase-25 & Out-Slate and the Stand Up for Teamsters slate submit material to Mr Carey, each slate shall simultaneously provide a copy of such material to the Election Officer.  Within three (3) days of completing the mailing, the Carey campaign shall submit an affidavit to the Election Officer demonstrating that the mailing has been accomplished.

An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules.  In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile

(202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:               Kenneth Conboy, Election Appeals Master

William A. Wertheimer, Jr., Regional Coordinator