Protest Decisions

              October 10, 1996

VIA UPS OVERNIGHT

Robert Kirkpatrick

October 10, 1996

Page 1

Robert Kirkpatrick

9352 Candlelight Street

Apple Valley, CA  92308

Dennis Skelton, Vice President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Bob Paffenroth

Teamsters Local Union 63

379 W. Valley Boulevard

Rialto, CA  92376

Richard Bennett

Roadway Services, Inc.

1077 George Boulevard

Akron, OH  44309

Ed J. Mireles, President

Teamsters Joint Council 92

140 S. Marks Way, Suite 92

Orange, CA  92668

Scott Askey

P.O. Box 1457

Yermo, CA  92398

Ron Carey Campaign

c/o Nathaniel K. Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY  10036

Daniel Hornbeck

Yellow Freight Systems

10990 Roe Avenue

Overland Park, KS  66207

Arthur Hackworth

Consolidated Freightways

175 Linfeld Drive

Menlo Park, CA  94025

John Sullivan, Associate General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

Robert Kirkpatrick

October 10, 1996

Page 1

Re:  Election Office Case No. P-994-IBT-CLA

Robert Kirkpatrick

October 10, 1996

Page 1

Gentlemen:

Robert Kirkpatrick, a member of Local Union 70, 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 on September 18, 1996, Dennis Skelton, Central Region vice president and candidate for reelection, IBT organizer Scott Askey, Local

Union 63 Business Agent Bob Paffenroth and other unidentified officials violated the Rules by campaigning at Consolidated Freightways, Roadway Express and Yellow Freight facilities.  Mr. Kirkpatrick contends that they were on union time and used union resources. 

Mr. Kirkpatrick amended his protest to add Joint Council 92 President Ed J. Mireles, who is a candidate for Western Region vice president, as a charged party.

The IBT responds that Mr. Skelton is director of the IBT’s Freight Division.  It states that he and Messrs. Paffenroth and Mireles visited the facilities on official union business at the invitation of Local Union 63.  The visits took place on September 17, as well as on September 18, 1996, as alleged in the protest.  The IBT states that Mr. Skelton and his companions did not distribute campaign literature and did not discuss campaign issues during any of the visits. 

The IBT further states that Mr. Askey was not part of Mr. Skelton’s group, but traveled to some of the same employer sites during the two-day period, handing out leaflets regarding a Teamsters voter registration picnic scheduled for September 22, 1996.  Mr. Askey did not run into Mr. Skelton’s group at any time during his visits.

Regional Coordinator Dolly M. Gee investigated this protest.

1.              Allegations Concerning Mr. Skelton’s Group

The Election Officer’s investigation revealed that Mr. Skelton was invited by Local Union 63 to visit Western Region employees in a letter dated August 29, 1996, in order to discuss “significant freight issues” affecting Local Union 63 members.  Mr. Skelton accepted the invitation in a letter dated September 5, and further arrangements were made by telephone.  On September 17 and 18, 1996, Mr. Skelton and others visited four of the 35 freight facilities within the local union’s jurisdiction.

On September 17, 1996, Messrs. Skelton and Paffenroth and Dave Keaton, assistant to Mr. Skelton, met with Mr. Mireles and Jim Roberts, appointees to a subcommittee of the Joint Western Area Committee (“JWAC”), to inspect and evaluate conditions at Consolidated Freightways (“Consolidated”) facilities in Las Vegas and to make recommendations to the JWAC.  Mr. Skelton met with Mr. Mireles and Mr. Roberts for about three hours in the morning.  That afternoon, Messrs. Skelton, Keaton, Paffenroth and Mr. Mireles, who requested a ride back to Southern California, left Las Vegas and visited Yellow Freight Systems (“Yellow Freight”) in Barstow, California.  At the Yellow Freight facility,

Mr. Skelton and his group spent some time discussing recent lay-offs and the situation at the facility in light of the company’s national situation.

Robert Kirkpatrick

October 10, 1996

Page 1

On the morning of September 18, 1996, Messrs. Skelton, Keaton, Paffenroth and Mireles visited a Consolidated facility in Mira Loma, California.  Mr. Skelton asked

Mr. Mireles to join him in visiting the facility because Mr. Mireles worked on the supplemental agreement in effect there.  While there, they discussed several issues concerning employees including the “40 and out” rule, and the corporate reorganization of the company in light of the imminent spin-off of the union subsidiary as an independent corporation.  The issue which took up most of their time involved the discussion of an incident where a supervisor had referred to an African American union member as a “crow.”  Mr. Skelton discussed this issue with Consolidated’s CEO in Mira Loma.

On the afternoon of September 18, Messrs. Skelton and Paffenroth visited a Roadway Express (“Roadway”) facility in Adelanto, California.  At Roadway, they discussed, among other issues, the uneasiness among the employees regarding the hiring of “casuals” by the company instead of giving employees overtime, the health of the company, and the process of reorganization of the company.

Mr. Kirkpatrick did not witness any of the events alleged in his protest.  However, he provided the Election Officer with the names of five witnesses:  Maggie Peterson,

Philip Pinto, Marland Glover, Alex McDonagh, and Bruce Smith.  All but Mr. Smith were interviewed by the Regional Coordinator.[1]  None stated that he or she saw Mr. Skelton or anyone in his group engage in campaigning or hand out campaign literature. 

Article XIV, Section 1 of the Rules places the burden on the complainants “to present evidence that a violation has occurred.”  The Election Appeals Master stated in In Re: Chentnik, 95 - Elec. App. - 52 (KC) (January 10, 1996) that the protester bears the initial burden of proof to offer evidence substantiating his allegations.  Neither the protester nor any of his witnesses has provided any evidence of campaigning.  Therefore, Mr. Kirkpatrick has not met his burden.

Mr. Pinto stated in his interview that he felt that “they had no right to be at the facility, because the Hoffa slate is not allowed on the premises.  Even though they were not distributing campaign literature or talking about the campaign, they had an unfair advantage by being allowed on the premises.”  The Election Officer finds that Mr. Skelton and his companions were performing the duties of their positions as union officers.  The Election Officer has stated in previous decisions that “restrictions on campaigning must not be read so broadly as to restrict the right and responsibility of union officers to conduct their official business.”  Martin, P-010-IBT-PNJ et seq. (August 17, 1995) (decision on remand), aff’d,

Robert Kirkpatrick

October 10, 1996

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95 - Elec. App. - 18 (KC) (October 2, 1995).  The Election Officer has also stated that “an incumbent union official may conduct union business without having it labeled as campaigning.”  Cook, P-337-LU705-CHI (May 8, 1996), aff’d, 96 - Elec. App. - 191 (KC) (May 17, 1996).  The fact that Messrs. Skelton and Mireles are candidates does not convert their performance of legitimate union business into a Rules violation.[2]  Moreover, the Election Officer notes that Mr. Skelton made similar visits to Local Union 63 employer sites in 1993 and 1994, and were conducting legitimate union business at the request of Local Union 63.

2.              Allegation Concerning Mr. Askey

The investigation showed that Mr. Askey visited three facilities around the same dates as Mr. Skelton and his group.  Mr. Askey visited Yellow Freight in Barstow on September 17, 1996, and visited Roadway in Adelanto and Consolidated in Mira Loma on September 18, 1996.  Mr. Askey visited the three sites in order to hand out flyers advertising an IBT-sponsored voter registration picnic relating to the U.S. Presidential and Congressional elections.  The picnic was scheduled to take place at Whittier Narrows Regional Park on September 22, 1996.  Mr. Askey traveled independently of Mr. Skelton and his group, and did not run into them during any of his visits to employer sites. 

The protester’s witnesses also offered no evidence that Mr. Askey engaged in any campaigning on union time.  Mr. Askey admitted that he was handing out flyers advertising the IBT voter registration picnic.  Such picnics have previously been found by the Election Officer not to be campaign events under the Rules.  Hoffa, P-925-IBT-MGN (September 20, 1996), aff’d, 96 - Elec. App. 244 (KC) (October 3, 1996); Hoffa, P-996-LU436-CLE (September 23, 1996), aff’d, 96 - Elec. App. 245 (KC) (October 3, 1996) (if campaigning actually occurs at event, a protest may be filed at that time).

For the foregoing reasons, the protest is DENIED.

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

Robert Kirkpatrick

October 10, 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

Dolly M. Gee, Regional Coordinator