IN RE: MICHAEL RUSCIGNO, EDMUND GIGG, and SUE YOCUM,
Protest Decision 2000 EAD 16
Issued: August 17, 2000
OEA Case Nos. PR072001NE, PR072701NE, PR080401NE and PR080902AT
Michael Ruscigno, Edmund Gigg and Sue Yocum, respectively members of Locals 802, 25 and 79, filed pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"), against United Parcel Service, Inc. ("UPS"). The protestors allege that UPS violated their right to limited access to employee parking lots at UPS facilities in Manhattan (Spring Street and 43rd Street), Somerville, Massachusetts, and Tampa, Florida under Article VII, Section 11(e) of the Rules.[1]
Election Administrator representatives William W. Thompson II and J. Griffin Morgan investigated these protests.
Article VII, Section 11(e) of the Rules states that "candidate[s] for delegate or alternate delegate and any member of the candidate's Local Union may distribute literature and/or otherwise solicit support in connection with such candidacy in any parking lot used by that Local Union's members to park their vehicles in connection with their employment." Section 11(e) further provides that "candidate[s] for International office and any Union member within the regional area(s) in which said candidate is seeking office may distribute literature and/or otherwise solicit support in connection with such candidacy in any parking lot used by [IBT] members to park their vehicles in connection with their employment in said regional area(s)." IBT members have the reciprocal right under the Article VII, Section 11(e) of the Rules to be so solicited and to receive literature offered for distribution.
These rights are available only in connection with campaigning during the 2000-2001 International Union delegate and Officer election conducted pursuant to the Consent Order.[2] Such campaigning must occur "only during times when the parking lot is normally open to employees" and "do not extend to campaigning which would materially interfere with the normal business activities of the employer." The rights guaranteed by Article VII, Section 11(e) "are not available to an employee on working time, [and] may not be exercised among employees who are on working time…" Additionally, the employer "may require reasonable identification to assure that a person seeking access to an employee parking lot pursuant to th[e] rule is a candidate or other [IBT] member entitled to such access." Article VII, Section 11(e) also provides that nothing in its provisions "shall entitle any candidate or other [IBT] member to access to any other part of premises owned, leased, operated or used by an employer or to access to a parking lot for purposes or under circumstances other than as set forth herein."[3]
These limited access rights are "presumptively available, notwithstanding any employer rule or policy to the contrary, based upon the Election Administrator's finding that an absence of such rights would subvert the Consent Order's objectives of ensuring free, honest, fair, and informed elections and opening the Union and its membership to democratic processes." An employer however may rebut this presumption "by demonstrating to the Election Administrator that access to Union members in an employee parking lot is neither necessary nor appropriate to meaningful exercise of democratic rights in the course of the 2000-2001 election…[, and] may seek relief from the Election Administrator at any time."
The limited-access rule is a necessary infringement upon employer property rights, and is limited so that such rights are infringed upon only to the extent necessary to implement the Consent Order goal of providing for "free, fair and democratic election[s]." United States v. IBT, 896 F. Supp. 1349, 1367 (S.D.N.Y. 1995), aff'd, 86 F.3d 271 (2d Cir. 1996). There, Judge Edelstein approved the limited-access rule, finding it "crucial to the achievement" of such an election process. Id. at 1349.
After discussion with the Office of the Election Administrator, UPS has agreed (as it has in past elections and as stated in the letter annexed hereto as Appendix A) to honor Article VII, Section 11(e) at its facilities and to resolve these protests by allowing IBT members their limited right to access to its employee parking lots in a manner consistent with the provisions and limitations of Article VII, Section 11(e) of the Rules. UPS has committed that it "will ensure that this policy will be maintained during the election period with respect to these facilities."[4]
Under these circumstances, the Election Administrator concludes that further processing of these protests is unwarranted. The protesters' complaints have been addressed and the relief requested has been achieved. Accordingly, these protests are now RESOLVED.
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 in any such appeal upon evidence that was not presented to the Office of the Election Administrator. 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
J. Griffin Morgan
2000EAD16
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
Tom Leedham
18763 South Highway 211
Molalla, OR 97038
Michael Ruscigno
42 B2 W. 23rd Street
Bayonne, NJ 07002
Edmund Gigg
255 Powderhouse Blvd.
Somerville, MA 02144
Sue Yocum
17800 Chorvat Ave.
Brooksville, FL 34160
Teamsters Local 802
41-20 Crescent St.
Long Island City, NY 11101
Teamsters Local 25
544 Main Street
Boston, MA 02129
Teamsters Local 79
5818 E. MLK Blvd.
Tampa, FL 33619
Lindsay Marshall
UPS, Inc. Legal Department
55 Glenlake Parkway NE
Atlanta, GA 30328
Gary Tocci
Kim Kaplan
Schnader, Harrison, Segal
& Lewis
Suite 3600
1600 Market Street
Philadelphia, PA 19103
[1] The protest in PR080902AT also states harassment and interference allegations against Local 79 steward Jerry Stack. Those allegations are severed from protestor Yocum's allegations against UPS, and will be resolved in a separate decision.
[2] The "Consent Order" as that term is used in the Rules means "the March 14, 1989 agreement approved by the [United States District] Court [for the Southern District of New York, the Honorable David N. Edelstein presiding, and] entered into between and among the United States Government, the International Union and others in the case of United States of America v. International Brotherhood of Teamsters, et al., 88 Civ. 4486 (DNE)(S.D.N.Y.), as amended, and all subsequent opinions, rulings and orders interpreting it." Rules, Definition 8.
[3] Separately, Article VII, Section 11(f) of the Rules provides that "an employer's discrimination in permitting access to its property shall constitute an improper contribution to the candidate(s) who benefit from such discrimination."
[4] Appendix A indicates that "UPS only takes the position stated in this letter assuming that Judge Edelstein issues an order adopting the proposed Rules for the 2000-2001 IBT International Union Delegate and Officer Election, and the specific provisions regarding limited right of access to employer premises remain unchanged." In discussions with the Office of the Election Administrator, counsel for UPS has been informed that Judge Edelstein has approved an Election Agreement incorporating the Rules. Further, counsel for UPS has been advised that the United States Government intends to apply to the United States District Court for the Southern District of New York for entry of an order addressed to and specifically approving the access provisions of the Rules. In turn, counsel for UPS has assured the Office of the Election Administrator that it will comply with the provisions of Article VII, Section 11(e) of the Rules pending the Court's consideration of the application.