October 6, 1998
VIA FIRST CLASS MAIL
Robert Kirkpatrick
October 6, 1998
Page 1
Robert Kirkpatrick
9352 Candlelight Street
Apple Valley, CA 92308
Ralph Eckelman
c/o Teamsters for a Democratic
Union
7435 Michigan Avenue
Detroit, MI 48210
Raul Rodriguez
c/o Teamsters for a Democratic
Union
7435 Michigan Avenue
Detroit, MI 48210
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik, Raymond
Ferrara & Feldman
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
Paul Alan Levy, Esq.
Public Citizen Litigation
Group
1600 20th Street, NW
Washington, D.C. 20009
Ken Paff
Teamsters for a Democratic
Union
7435 Michigan Avenue
Detroit, MI 48210
Tom Leedham
c/o Tom Leedham Campaign Office
P.O. Box 15877
Washington, D.C. 20003
Robert Kirkpatrick
October 6, 1998
Page 1
Re: Election Office Case No. PR136-LU70-PNW
Gentlemen:
Robert Kirkpatrick, a member of Local Union 70, filed a pre-election protest pursuant to the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Ralph Eckelman, a member of Local Union 63, and Raul Rodriguez, a member of Local Union 630. The protester alleges that Messrs. Eckelman and Rodriguez violated the Rules by campaigning at Roadway Express in Adelanto, California, during employees’ work time on June 19, 1998; that the campaign literature that Messrs. Eckelman and Rodriguez distributed on June 19, was produced by Teamsters for a Democratic Union (“TDU”) in violation of the Rules since TDU is supported by contributions from employers and foundations; and alleges that Messrs. Eckelman and Rodriguez acted in a threatening manner when they mentioned action taken by the Independent Review Board (“IRB”) while interacting with Saul Rodriguez.
Robert Kirkpatrick
October 6, 1998
Page 1
This protest was investigated by Adjunct Regional Coordinator Paige Keys.
- Allegation of Improper Campaigning Inside Roadway Facility on Work Time
Messrs. Eckelman and Rodriguez readily admit that they were campaigning and distributing campaign leaflets in support of Tom Leedham, a candidate for general president, in the yard and on the dock at Roadway Express, during employees’ work time. However, Messrs. Eckelman and Rodriguez deny that they interfered with any employees as they worked, rather they contend that Roadway employees approached them while they were inside the premises.
On June 19, 1998, Messrs, Eckelman and Rodriguez were at the Roadway Express facility in Adelanto, California. Steve Rodriguez, a Roadway employee and a trustee of Local Union 63, asserts that after he observed Messrs. Eckelman and Rodriguez enter the yard and hand out campaign material to line drivers and hostlers, he informed them that they should not be on the premises. Chris Pollack, another Roadway employee, states that he approached Messrs. Eckelman and Raul Rodriguez during their conversation with Steve Rodriguez, and took campaign literature from them for posting in Roadway’s break room. After these conversations, Steve Rodriguez states that Messrs. Eckelman and Raul Rodriguez stopped another hostler in the yard before proceeding to the dock area. Ian Stevens, the dock steward, states that he instructed Messrs. Eckelman and Rodriguez twice to leave the dock area. Mr. Stevens stated that after they left the dock, they returned to the parking lot and placed campaign material on the cars.
Mr. Eckelman contends there is a pre-existing right to campaign inside Roadway’s facilities since in 1996 and as recently as the spring of 1998, he did so without any interference from Roadway supervisors. Mr. Eckelman claims that in the spring, he spoke with hostlers, campaigned in the driver’s room and the shop room, and distributed campaign material to truck drivers and forklift operators, including Gabe Martinez, a former employee, on the Roadway dock. Although Mr. Eckelman maintains that three supervisors allowed him to campaign in this fashion without taking any action to curtail his activities, he did not know the identity of these supervisors.
Jim O’Neill, the Vice President of Labor Relations for Roadway, stated that campaign activity is only permitted in the employee parking lot and that campaigning has never been allowed on the dock. Mr. O’Neill maintains that these rules are strictly enforced whenever Roadway has knowledge of campaigning in these areas, and if Messrs. Eckelman and Rodriguez procured access to the premises, this was done without any authorization from Roadway.
Robert Kirkpatrick
October 6, 1998
Page 1
As non-employees, Messrs. Eckelman and Rodriguez had no right to campaign on Roadway’s premises, except as provided by the Rules. Article VIII, Section 11(e) 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 in connection with their employment. This section specifically states, “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.” However, it is undisputed that Messrs. Eckelman and Rodriguez entered and conducted campaign activities in Roadway’s yard and dock area, not the parking lot as authorized by this section of the Rules.
Article VIII, Section 11(d) of the Rules, which protects pre-existing rights to access employer premises, provides:
[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, Mr. Eckelman has alleged such a pre-existing right for non-employees at Roadway’s Adelanto, California facility. However, the Election Officer finds that evidence fails to establish a pre-existing right for non-employees to campaign in areas other than the parking lot.
Accordingly, the Election Officer finds that Messrs. Eckelman and Raul Rodriguez did not have a right under the Rules to enter Roadway’s premises to campaign. The Election Officer further finds that such entry constituted a violation.
II. Allegation Regarding TDU
The protester maintains that TDU, an employer supported group, produced the campaign literature Messrs. Eckelman and Raul Rodriguez distributed at Roadway’s Adelanto, California facility, in violation of the Rules. The protester’s allegation is based on the fact that the flyers do not specify the person or entity responsible for producing the material.
Messrs. Eckelman and Raul Rodriguez state that the material was provided by TDU although they are unsure whether TDU was the original sponsor or producer of the material. Based on his review of the campaign material, TDU’s attorney Paul Levy, believes that some of the flyers were originally produced by the Leedham campaign and others by TDU.
Robert Kirkpatrick
October 6, 1998
Page 1
TDU’s production of campaign material does not violate the Rules. It is well established that TDU is an independent committee under the Rules, defined as a caucus or group of union members not controlled by a candidate or slate that accepts funds or makes expenditures with the “purpose, object or foreseeable effect”of influencing the International election. Rules, Definitions, at Section 22; Advisory on Campaign Contributions and Disclosures (Revised November 1997); Hoffa, PR-039-IBT-EOH (March 10, 1998); Halberg, P-019-LU174-PNW (December 14, 1995) (decision on remand). As an “independent committee,” TDU may contribute to International campaigns as long as its campaign activities are supported exclusively by funds received from IBT members. In re Gully, 91-Elec. App. - 158 (SA) (June 12, 1991), aff’d Sargent, P-249-LU283-MGN (May 21, 1991). Since the decision in Gully, the Election Officer has specifically required TDU to allocate and separate permitted funds from prohibited funds in the regular course of its operations. See Hoffa, PR-039-IBT-EOH (March 10, 1998); Halberg, P-019-LU174-PNW (December 14, 1995) (decision on remand).
Under the Rules, IBT members may use personal funds to duplicate campaign material for distribution. However, the Election Officer reminds members and candidates that such expenditures by members are considered in-kind contributions to the benefitted candidate or campaign and must be reported as such on the candidate/slate’s Campaign Contribution and Expenditure Report (“CCER”). Accordingly, withing five (5) working days from the date of this decision, Messrs. Eckelman and Raul Rodriguez shall inform Mr. Leedham’s campaign, in writing, of their in-kind contribution to his campaign, including the date and amount of their duplicating expenditures. This statement shall also be sent to the Election Officer at the same time.
III. Allegation of Threatening Comments about the IRB
The protester alleges that Messrs. Eckelman and Rodriguez mentioned action taken by the IRB against James Santangelo during a conversation with Steve Rodriguez in order to “threaten or coerce votes” for Tom Leedham.
The protester was not present during the allegedly threatening conversation.
Raul Rodriguez maintains that during his brief encounter with Steve Rodriguez, he mentioned that “Santangelo had been under review by the IRB and had charges pending.” This statement was made in response to Steve Rodriguez’s initial comments about Mr. Santangelo.
Raul Rodriguez denies any threatening import to his statement. During the interview with the Adjunct Regional Coordinator, Steve Rodriguez did not mention the comments regarding Santangelo and did not make any allegations that Mr. Eckelman or Raul Rodriguez engaged in threatening or coercive behavior during his conversation with them.
The Election Officer finds that the protester’s claim that Messrs. Eckelman and
Raul Rodriguez engaged in threatening or coercive behavior is unsubstantiated.
For the reasons stated above, the protest is GRANTED as to prohibited campaigning on Roadway premises and DENIED in all other respects.
Robert Kirkpatrick
October 6, 1998
Page 1
When the Election Officer determines that the Rules have been violated, he “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 Election Officer orders Messrs. Eckelman and Rodriguez to cease and desist from campaigning on the premises of Roadway in Adelanto, California, except in its employee parking lot.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) 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, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Paige Keys, Adjunct Regional Coordinator