October 7, 1996
VIA UPS OVERNIGHT
Doug Mims
October 7, 1996
Page 1
Doug Mims, Vice President
International Brotherhood of Teamsters
2540 Lakewood Avenue, S.W.
Atlanta, GA 30315
Bob Dupuis, Line Haul Supervisor
Consolidated Freightways
3925 Singleton Boulevard
Dallas, TX 75212
Arthur Hackworth
Consolidated Freightways
175 Linfield Drive
Menlo Park, CA 94025
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman, P.C.
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48098
Ron Carey Campaign
c/o Nathaniel Charny
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
Doug Mims
October 7, 1996
Page 1
Re: Election Office Case No. P-982-LU745-SOU
Gentlemen:
Doug Mims, an International vice president for the Southern Region and a candidate for reelection, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) alleging that Consolidated Freightways Motor Freight (“CF”) violated the Rules by denying him access to its Dallas terminal on September 12, 1996, after having permitted access to James P. Hoffa, a candidate for general president, in May.
CF responds that it has a strict policy against access to its premises by non-employees and that Mr. Mims did engage in some campaigning on its premises, although his time there was shorter than Mr. Hoffa’s. It offers to post notices reiterating its policy against non-employee access.
This protest was investigated by Regional Coordinator Dolores C. Hall.
Doug Mims
October 7, 1996
Page 1
Mr. Mims alleges that he tried to campaign at CF’s Dallas facility with Yellow Freight retiree David Cobb. He states that he entered the building and spoke with several persons about getting directions to the road drivers’ break room. Two persons gave him directions, which he states, “indicated to me that other candidates for office had been allowed to enter the premises and campaign without harassment.” Although he states in his protest that “[w]e were in non-work areas during non-work times” when CF ordered him off the premises, he admitted in an interview with the Regional Coordinator that he did campaign on the facility’s dock and that workers stopped work and came to the far end where he was standing. Messrs. Mims and Cobb were ordered off the premises by Line Haul Supervisor Bob Dupuis, who said, “It’s company policy; we don’t allow anyone to campaign inside the gate area.” The investigation disclosed that their improper campaigning on CF’s premises lasted between five and 10 minutes.
Mr. Mims bases his charge of unequal access on prior campaigning at the facility by Mr. Hoffa. The investigation revealed that Mr. Hoffa visited the facility with other unidentified persons on May 24, 1996. Notice of the visit had been posted on at least one bulletin board two or three days before. CF admits that on arrival, Mr. Hoffa was escorted to the CF office and met management officials. CF also acknowledges that Mr. Hoffa campaigned on the facility’s dock, although it states that his presence on the dock violated company policy. Several witnesses also state that they saw Mr. Hoffa in both break rooms at the facility: the break room on the dock and the line hall drivers’ break room. Mr. Hoffa and his group were escorted through the facility by a Local Union 745 steward named Karen, who works in the CF office and joined Mr. Hoffa’s group when Mr. Hoffa met with management at the beginning of his visit.
CF submitted a copy of its policy against non-employee campaigning to the Election Officer and states that enforcement is strict. The policy allows for non-employee campaigning in CF’s parking lot as required by Article VIII, Section 11(e) of the Rules, but it otherwise provides that “[i]n areas other than employee parking lots, employers generally may refuse non-employees entry on to Company property . . . .” Assistant Terminal Manager Patrick Jenkins states that he and Terminal Manager Bob Nieuwenhuis were asked by Local
Union 745 Business Agent Tyson Johnson about CF’s campaigning policy before Mr. Hoffa’s visit and that Mr. Johnson was told that Mr. Hoffa would have to restrict his campaigning to the parking lot. Mr. Jenkins also states that when he learned that Mr. Hoffa was on the dock, he immediately went there and advised the group to go to the parking lot. He states that the group did so. Freight Operations Manager Darryl Lyon states that he escorted Mr. Hoffa off the dock from the “150 door” and asked Mr. Hoffa to go to the parking lot if he wished to continue campaigning.
Doug Mims
October 7, 1996
Page 1
The Election Officer finds, however, that Mr. Hoffa’s campaign activity inside the CF facility was substantial. The undisputed evidence is that Mr. Hoffa campaigned on the dock, in the yard and in both break rooms. Campaigning on the dock took place from at least the “61 door” to the “150 door” at the end, which indicates that Mr. Hoffa had access to at least half of the long dock at the facility. The Election Officer also notes a conflict in testimony as to whether Mr. Hoffa actually went to the parking lot after leaving the dock or whether he was permitted to continue campaigning in the yard. The Election Officer finds that Mr. Hoffa campaigned on CF premises for about one hour.
The Rules generally do not give candidates or members the right to campaign on employer premises (other than in the parking lot), unless there is a pre-existing right. Thus, Article VIII, Section 11(d) states:
[N]o restrictions shall be placed upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature, . . . 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.
The Election Officer has repeatedly stated that “[i]f an employer chooses to allow campaigning on their premises, it may do so as long as equal access is provided to all candidates pursuant to Article VIII, Section 11(d).” Thus, the Election Officer ordered equal access on very similar facts in Mee, P-819-LU630 et seq. (July 31, 1996), where an employer had permitted a candidate to campaign on its premises despite a policy against non-employee access, but later ejected another candidate who sought the same opportunity. The Election Officer also ordered equal access in Burrows, P-118-LU70-CLA (September 13, 1995), aff’d, 95 - Elec. App. - 16 (KC) (September 30, 1995), where an employer permitted campaigning on premises as a “one-time event caused by the mistake of a newly hired guard.” See Rud,
P-766-LU320-NCE (July 30, 1996) (no violation where non-employees campaigned on school district premises under pre-existing right, and unequal access not alleged).
In this matter, the Election Officer recognizes that CF’s policy against non-employee campaigning is based on its legitimate property interest in restricting non-employee access to its premises. The Election Officer finds, however, that CF knowingly permitted Mr. Hoffa to campaign throughout its facility, not just in the parking lot. CF acted to remove Mr. Hoffa from the dock, but only after Mr. Hoffa had been able to walk at least half its length while campaigning. Thus, the Rules require CF to provide equal access to “all candidates . . . on a nondiscriminatory basis. In view of Mr. Hoffa’s status as a candidate for IBT general president, the Election Officer will order equal access for Mr. Carey or his designate.
As in Mee, supra, a second issue raised in this protest is whether CF, when it knowingly permitted Mr. Hoffa’s campaigning, in fact created a “pre-existing right” to campaign for other candidates for the duration of the International officer election. On this issue, the Election Officer credits the statements of CF’s management that it otherwise strictly enforces its policy against non-employee access. The investigation did not disclose other exceptions. Thus, the Election Officer does not find a pre-existing right to campaign has been created. The opportunity for Mr. Carey or his designate to campaign will be limited to a single time.
For the foregoing reasons, the protest is GRANTED.
Doug Mims
October 7, 1996
Page 1
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.
In this matter, the Election Officer notes that Mr. Mims was able to campaign on CF’s premises, including the dock, for five to 10 minutes before he was asked to leave. The Election Officer finds that Mr. Mims’ campaigning should be taken into account in fashioning an equal access remedy for Mr. Carey or his designate, in order to respect CF’s interest in limiting potential interference with its operations.
Accordingly, the Election Officer orders the following:
1. Consolidated Freightways shall permit Mr. Carey or his designate to campaign on the premises of its Dallas facility for one-half hour on or before October 16, 1996. Such campaigning may take place in the two break rooms, in the yard and on the dock.
2. If Mr. Carey or his designate decides to take advantage of this opportunity, he or she shall give not less than 24 hours’ advance notice to Consolidated Freightways of when the campaigning will take place, and such notice shall be given at the same time to the Election Officer.
3. No later than three (3) days after Mr. Carey or his designee campaigns at the Dallas facility of Consolidated Freightways, pursuant to this decision, or no later than October 19, 1996, if the opportunity is not used, Consolidated Freightways shall file an affidavit with the Election Officer demonstrating compliance with this decision.
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
Doug Mims
October 7, 1996
Page 1
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
Dolores C. Hall, Regional Coordinator