IN RE: EDWARD WASILEWSKI,
Protest Decision 2000 EAD 14
Issued: August 14, 2000
OEA Case No. PR072801AT
Edward Wasilewski, Jr., a member of Local Union 557, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules")against Local 557 and its steward agents. The protester alleges that on July 25, 2000, Local 557 stewards "improperly denied [Wasilewski and Local 355 member Matt Latzo] access to [Leaseway Motorhaul Transport Company's] premises for a legitimate campaign activity." Wasilewski further alleges that Local 557's stewards harassed and intimidated Latzo and him, in violation of the Rules.
Election Administrator representative William W. Thompson II investigated the protest.
Findings of Facts
The Incident. Leaseway Motorhaul Transport Company ("Leaseway") maintains a Baltimore, Maryland facility at which IBT members are employed. In late 1999, Wasilewski ran for president of Local 557 but lost. Election protests by Wasilewski regarding the local election are pending before the IBT General Executive Board. Those protests include this assertion concerning Leaseway's Baltimore facility:
on November 17th 1999 the [Wasilewski] ... Slate was campaigning at Leaseway Terminal....We were told to leave by a manager of Leaseway. While we were ... on the outside of the gate ... we noticed campaign helpers of the [McLain] ... slate ... leaving the terminal.
Local 557 business agent John McLain confirmed that the present incumbent leadership of Local 557, who Wasilewski opposed in the 1999 local union elections, is generally supportive of General President Hoffa's administration.
On July 25, 2000, at approximately 4:30 a.m., Wasilewski and Matt Latzo arrived at the facility. Wasilewski works for a Local 557 employer other than Leaseway. Latzo is a member of Local 355 and a non-employee of Leaseway. Their purpose was to obtain accreditation petition signatures from Local 557 members for IBT General President candidate Tom Leedham. According to Wasilewski and Latzo, the two had been on the Leaseway property about a week before at approximately 4:30 p.m., for about an hour or more, and had passed out Leedham campaign material without serious incident.
The Leaseway facility is entirely fenced. The entrance from Holabird Avenue has a guard shack. An entrance road and ill-defined parking area leads to the terminal itself. In the area immediately adjacent to a door of the terminal leading into the driver's room and the dispatch room there are a number of steel drums arranged to separate the entrance area from vehicular parking and traffic.
According to Wasilewski, the two petitioners drove past the guard into Leaseway without incident, parked Latzo's vehicle, and stationed themselves by the drums to get signatures from drivers walking in and out of the building to and from their morning dispatch. They "got about six signatures right away."[1]
Wasilewski states that he was talking to one of the drivers when an individual who Wasilewski assumed to be a Local 557 steward "holler[ed]" toward Matt Latzo, who was talking to another driver about 6-8 feet from the dispatch door, "don't sign anything." Wasilewski claims this individual yelled this "three or four times," and then proceeded to the shop. He further claims that the effect of these exclamations was the abrupt departure of drivers who had been talking to the petitioners, and the avoidance of them by the next passersby.
It appears that this individual was steward John Clape. According to Clape, on July 25 he was "accosted" by the two petitioners as he got to the bottom of the steps coming out of the dispatch door. One of them asked Clape to "sign a petition for Tom Leedham." Clape said "wait a minute, who are you?" The individuals would not identify themselves, but said that they "just want you to sign the petition." According to Clape, he told these individuals that they "need to leave the property because of company policy." The petitioners continued to request that he sign the petition, and refused his repeated request for their identity. Clape asked them if they were "TDU." According to Clape, at that point another driver gave him a quizzical look, and Clape said, "I never saw this guy before. I wouldn't sign it." He then said, "I'm not going to make a big deal, but the company policy is that you can't be here." Clape stated that he then walked away from the area and went to work.
According to Wasilewski, after the steward left, the petitioners remained in that location for another 5-10 minutes, but that the drivers going to and fro were now "avoiding" them. Then another individual approached and, according to Wasilewski, said, "I'm a shop steward here. If John McLain and Jack Hamm knew you were here, they would go ballistic. … McLain told us stewards that if people come on this property who don't belong here, we're supposed to throw them off. We had some people here a couple weeks ago handing out literature. If we had known, we would have thrown them off." According to Wasilewski, this steward then said, "I'll sign this...," and signed the petition. He then stated "under his breath," "you guys get your signatures, then you're going to have to leave." Five or ten minutes later, the petitioners left because they weren't getting any more signatures. Latzo recalls that this second individual identified himself as an "assistant steward."
Frank Collins is Clape's assistant steward. According to Clape, the only two stewards on the property that morning were himself and Collins. Collins recalls that he was also "accosted" by the two petitioners at the bottom of the steps after Clape had left the facility. They said "We want you to sign a petition for Leedham." Collins said "Okay," and signed his name and SS number. Collins vehemently denies making any statements to the petitioners about not being allowed on the property, or about the directives and opinions of McLain and Hamm. As Collins put it, "why would I say all that if I signed the petition?"
The Leaseway Policy. John McLain has been the Local 557 business agent for 8 or 9 years. According to him, he learned of this incident only after the fact. McLain asserts that Leaseway has had a consistent and firm policy that no union solicitations or campaign activities can take place on Leaseway property in Baltimore. Furthermore, anyone who wants to "visit" the property is supposed to notify management first. Because the Local 557 election campaign activities in late 1999 were considered by Leaseway managers to be "disruptive," Leaseway told everybody that they could only campaign outside the gate. McLain volunteered that in the November 1999 incident (on appeal to the GEB), he (McLain) was seen inside Leaseway because he was "doing 3 discharges" of Local 557 members. McLain vehemently denies that the incumbent officials of Local 557 have engaged in any campaign or solicitation activity other than outside the gate of Leaseway since the local election last Fall-Winter.
According to Local 557 Trustee Jack Hamm, who has worked for Leaseway for about 25 years, the policy referenced by McLain has been in existence for about 10 years, but was reemphasized at the time of the Local election in 1999. Hamm states that during the local election notices were posted around the property stating the policy against campaigning and solicitation. He further suggests that Wasilewski knows the Leaseway rules as the result of the local election incident, at which time Wasilewski was thrown off the property for "disrupting" the dispatch of drivers. Both Clape and Collins corroborate that management banned any campaigning inside the gate at least since the local election in 1999.[2]
Leaseway corporate counsel Bill Allport submitted a written response to this protest.[3] That response states:
The Baltimore management ... was unaware that ... Wasilewski was on its premises on Thursday, July 25....
LMTC would expect any individuals who desire admission to its property to first report to its management office, identify themselves, and request permission to access the LMTC property.
Further, Allport spoke with former Baltimore terminal manager Ron Graham (who ran the site for 4 or 5 years until resigning about one month ago) and with current manager Mike Armstrong. According to Allport, Graham confirms that about a year ago there was disruptive local union campaigning going on inside Leaseway property, and that Graham announced that no more campaigning could occur except outside the Holabird Avenue gate. During that campaign, Graham told Wasilewski to go to the front gate, and there was no further trouble. Mike Armstrong explained to Allport that management continues to enforce the no campaign rule against all "inside" campaigning and that people can campaign outside the gate.
The Duty Status Of The Drivers. Two groups of drivers dispatch from Leaseway in Baltimore in the early morning: the "Baltimore" drivers, for whom Hamm serves as steward, and the "Annapolis Junction" (AJ) drivers, for whom Clape and Collins are the stewards. The AJ drivers dispatch from Baltimore, but pick up their loads at AJ, about 20 miles away.
According to Clape, most of the AJ drivers are allowed to drive their trucks home. Consequently they are "on duty" when they get to the terminal. Clape is the first to "pick" each morning. According to Hamm, the Baltimore drivers come to the terminal in their personal vehicles. These drivers are "on duty" when they leave dispatch.
Analysis and Conclusion
Resolution of this protest requires that we decide first, whether agents of Local 557 improperly denied the petitioners access to Leaseway's property and second, whether these same agents improperly threatened and harassed the petitioners in violation of the Rules. The protest does not challenge Leaseway's access policy, which has, at least for the last 6-8 months, barred any campaign activity on Leaseway's Baltimore property, including activity in employee parking areas.[4] Instead, the protest asserts that agents of "Local 557 improperly denied us access to the employer's premises ... [a]nd engaged in harassment and intimidation ... [which had] a chilling effect on other members...."[5]
The facts here - even as described by Wasilewski - do not establish the first allegation in this protest: that the stewards "improperly denied us access to the employer's premises...." No one asserts that either Clape or Collins did anything to keep the petitioners out, or to force Wasilewski and Latzo off the property. Neither steward contacted anyone in authority. Indeed, Collins actually signed the Leedham petition. Wasilewski and Latzo confirmed that the two remained on the property after both steward encounters. They only decided to leave 5 or 10 minutes after the second encounter because the passing drivers were no longer signing the petition.
Our conclusion is no different as to the second allegation of this protest. Article VII, Section 11(g) of the Rules state:
Retaliation or threat of retaliation by ... any subordinate body, any member of the IBT ... against a union member ... for exercising any right guaranteed ... is prohibited.
Here, we find insufficient evidence of improper threats of retaliation or harassment. Even Wasilewski's description of his interchange with Clape and Collins indicates that there was no statement from either steward that any action would be taken against them if they did not leave Leaseway. Moreover, Wasilewski states that the comments by the second steward (Collins) ended with the statement "you guys get your signatures then you're going to have to leave." Particularly in the context of Collins' own signature on the petition, no retaliatory threat was explicit or implicit in the interchange with Collins.[6]
We also reject Wasilewski's claim that the comments of the stewards improperly "chilled" the attitudes of the other drivers. The emotional effect of an otherwise proper statement of partisan opinion does not itself establish a violation of the Rules. As the Election Officer held in Keiffer, P360 (March 19, 1996), "the rules provide[] that all union members have the right to ... 'openly support or oppose any candidate....'" Thus, the officer concluded, "[w]hile the statements allegedly made by the charged parties may have upset the protester, there is no evidence that the charged parties actually prevented Mr. Marquez from distributing his leaflets." The same conclusion adheres in this case. No one kept the petitioners from continuing to ask drivers to sign.
Finally, we also reject the claim that the steward's reiteration of the employer's no-solicitation policy violates the Rules. To the extent that that policy is improper, it must be attacked by a protest against the employer that is directed at the policy itself. Consideration of any such protest will require consideration of the employer's claim that special circumstances justify the policy, as well as the at-work status of the AJ drivers and whether access to the Leaseway employees in the parking lot is necessary or appropriate to meaningful exercise of democratic rights in the course of the 2000-2001 election.
Based upon the foregoing, the protest is DENIED.
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 Administrator 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
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, c/o International Brotherhood of Teamsters, 25 Louisiana Ave., NW, Washington, DC 20001, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
William W. Thompson II
2000EAD14
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Rd.
Suite 1551
Bingham Farms, MI 48025
Tom Leedham
18763 South Highway 211
Molalla OR 97038
Barbara Harvey
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Edward Wasilewski
1218 Weddel Avenue
Halethorpe, MD 21227
IBT Local 557
6000 Erdman Ave.
Baltimore, MD 21205
William W. Allport
Leaseway Motorhaul Transport Co.
3401 Enterprise Parkway, Ste. 200
Cleveland, OH 44122
[1] This location is the same area from which Wasilewski was ejected by management in November 1999.
[2] Wasilewski denies that there were ever any such postings on the property during the local election. Allport said that the Baltimore managers would fax our office any written policies or postings if they could locate them. None has been received.
[3] The IBT also submitted its "observations" regarding the protest, suggesting that the protest is deficient because the area inside Leaseway is not stated to be a "parking lot," and because the petitioners had no right to be in a non-parking lot area pursuant to the Rules.
[4] Any member contesting an employer's ban on access to an employee parking lot, or asserting any other employer sponsored access restriction is violative of these Rules, may file a timely protest in that regard. See Article XIII, Section 2(b)(2) of the Rules. In addition, Article VII, Section 11(e) of the Rules states in pertinent part "[a]n employer seeking to deny access to Union members in an employee parking lot may seek relief from the Election Administrator at any time." While the "interference" or "disruption" of the on duty drivers' dispatch process is not at issue in this matter, the brief interruption of drivers caused by the petitioners suggests that Leaseway's blanket policy is not well-founded. However, we do not know the nature of the alleged "disruptions" during 1999, based upon which Leaseway justifies its ban. Therefore we do not address the validity of Leaseway's ban in this decision.
[5] While protester Wasilewski generally maintains that the incumbent officers of Local 557 are being permitted to engage in the "banned" activity inside the property, there is no direct evidence or any allegation of specific instances of such a practice during the current IBT campaign, and Local 557 officials consistently deny such.
[6] In addition, all of the alleged statements relating to the impropriety of the petitioners' presence on the property, whether as related by Wasilewski or by Clape, have at least a limited nexus with the Rules themselves, which provide that "[a]n employer may require reasonable identification...." Article VII, Section 11(e). There is no question that Wasilewski and Latzo had not identified themselves to management, either at the gate, or at the dispatch office.