IN RE: MICHAEL RUSCIGNO,
Protest Decision 2000 EAD 15
Issued: August 14, 2000
OEA Case No. PR073101AT
Michael Ruscigno, a member of Local 802, 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 C&S Wholesale Grocers, Inc. ("C&S"). The protester alleges that on July 28, 2000, C&S improperly prevented Ruscigno and Local 1205 member Tony Perlstein from "gathering accreditation petition signatures on behalf of [the] Tom Leedham slate from Local 863 members in two [C&S] parking lots at the Blair Road facility in Avenel, NJ." The protest cites to the 1996 "Advisory on Limited Right of Access to Employer Premises." The substance of that document is found at Article VII, Section 11(e) of the Rules.
Election Administrator representative William W. Thompson II investigated the protest.
Findings of Fact
Ruscigno is a business agent for Local 802. Tony Perlstein is a paid organizer for Local 1205. Both locals are based in the New York metro area. Perlstein was employed by the IBT as an organizer during the Carey administration. According to Ruscigno and Perlstein, July 28, 2000 was a day off for Perlstein and a vacation day for Ruscigno.
Early that morning, Ruscigno and Perlstein went to the UPS facility in Saddlebrook, N.J. to obtain petition signatures. Late in the morning, they left UPS and drove to the C&S facility in Avenel for the same purpose.[1] The employees of C&S are represented by Local 863. The C&S facility is a large warehouse transit operation with numerous warehouse employees who load and unload trucks, and short haul drivers. This was Ruscigno's first time at the facility. Ruscigno and Perlstein arrived there shortly before noon.
According to Ruscigno and Perlstein, there are three employee parking areas at the Blair Road facility. The truck drivers' parking lot is at one end of the warehouse complex. At the other end of the complex are two more parking areas for the warehouse workers. One is adjacent to an entrance to the warehouse that leads to the lunchroom. The third lot is nearby. The petitioners never got to the third lot.
Upon arriving at Blair Road, the petitioners entered the secured drivers' lot. They explained to the guard at the main gate that they were with the Teamsters and wanted to talk to the employees, and that they would wait for them in the lot. The guard said to "go on in," to the drivers' lot, but that he was going to have to "check." The petitioners parked and got their petitions ready.
Shortly thereafter Tom Gross, Director of Security, drove up and asked the petitioners who they were and what they were doing. They explained that they were Teamsters with petitions for Tom Leedham, that they were going to stay in the lot, and that they had a right to be there. Gross replied that the petitioners "can't be here." Gross left to find a Local 863 shop steward.
At that point, Mark "Doe" (last name unknown), the Director of Operations, drove up. He stated that the petitioners are "not allowed on the property." They responded that they were there on Teamster business, and they weren't disrupting any activities. Ruscigno then showed Doe the 1996 "Advisory on Limited Right of Access." Doe appeared to be primarily interested in getting the petitioners to leave the drivers' lot. He said, "call and make an appointment. Maybe that will work." He said, "you can't be here. Most workers park in the warehouse parking lot." The petitioners got the impression that Doe was responsible only for the drivers' lot. Doe then showed them how to get to the warehouse lot. The petitioners left the drivers' lot without any signatures.
Ruscigno and Perlstein drove to the parking area outside of the lunchroom entrance and parked. A group of about 15 warehouse workers were on break in an outside shelter area near the warehouse door. The petitioners started giving out literature. One of the employees identified himself as a steward. He was wearing a Hoffa hat. As the petitioners started asking people to sign, the steward said, "I'm for Hoffa. Don't sign." A worker who was about to sign did not. Several employees said they had already signed a petition for Hoffa.
The workers indicated that there were more employees on lunch break inside. The petitioners walked in past another security guard. They told the guard they were there to talk to employees. The guard said to go ahead, and they walked into the cafeteria. There were about 30 people in the cafeteria. The two started handing out TDU literature.
Perlstein spoke in Spanish with a group at a table. They told him they had already signed for Hoffa "on the job," but some signed Perlstein's petition. He asked Ruscigno to get some Adalante magazines from his car. As Ruscigno was getting the magazines, he ran into Tom Gross again. Gross told Ruscigno to wait, that he was going to get a steward. Gross stated that the petitioners were not supposed to be soliciting inside the building. Ruscigno told Gross he was going to get magazines in his car and would return. Gross said "OK." No Local 863 steward ever took any active part in this situation.
Shortly thereafter, Facility Manager Bassignani arrived. The petitioners and managers were inside the building by the door to the cafeteria. Bassignani stated that the petitioners had no right to be on the property or the parking lot because they were not part of Local 863. Bassignani stated that they had called Local 863, and the union knew nothing about this. The petitioners repeated that they had a right to be on the lot, and that they are just talking to employees. Then Loss Prevention manager Edison Fraser showed up with 5 or 6 security people. Fraser said, "if you don't leave now there are going to be problems." Jim Hall, the Human Resources Director also arrived. He said, "you have no right to be on the lot. Go now. And don't go into the other warehouse lot." The two petitioners then left the facility.[2]
Analysis and Conclusion
This case requires us to decide whether C&S denied the petitioners access to employee parking lots in violation of the Article VII, Section 11(e) of the Rules, which provides that:
...[A]ny union member within the regional area(s) in which [an International Officer] candidate is seeking office 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....
We find that C&S violated that provision of the Rules here.
The denial of parking lot access here is undisputed. Nor is there any evidence that the petitioners' presence on the driver and warehouse employee lots interfered with or disrupted any employer operations. The employees with whom the petitioners were attempting to interact were those either on their way to or from work or on break. Such access is precisely the kind of campaign activity permitted by the Rules.[3]
Accordingly, the protest is GRANTED.
Remedy
When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interfering with the election process. Based on the foregoing, the Election Administrator orders C&S to cease and desist from any denial of access to IBT members to its employee parking lots in violation of Article VII, Section 11(e) of the Rules.
An order of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73.
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
2000EAD15
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 Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
645 Griswold
Penobscot Building
Suite 1800
Detroit, MI 48226
Michael Ruscigno
42 B2 W. 23rd Street
Bayonne, NJ 07002
Tom Leedham
18763 South Highway 211
Molalla, OR 97038
C&S Wholesale Grocers, Inc.
301 Blair Road
Avenel, NJ 07001
Teamsters Local 802
41-20 Crescent St.
Long Island City, NY 11101
Teamsters Local 863
209 Summit Rd.
Mountainside, NJ 07092
[1] Ruscigno was driving his Local 1205 supplied automobile. Perlstein was a passenger. According to Ruscigno, Local 1205 officials are permitted to use the local's cars for personal business.
[2] Despite repeated calls to the various C&S managers involved in this matter, our investigator received no response of any kind from C&S. Accordingly, this case presents no employer claim that special circumstances justify limitations on campaign access to employee parking lots, or an employer claim that campaign access to such lots is unnecessary or inappropriate to meaningful exercise of democratic rights in the course of the 2000-2001 election.
[3] Ruscigno and Perlstein identified themselves at the gate, and the C&S managers did not assert that their parking lot denial was the result of prior campaign disruptions.