IN RE: MICHAEL RUSCIGNO,
Protest Decision 2000 EAD 17
Issued: August 17, 2000
OEA Case No. PR080402AT
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 A.P.A. Trucking Company ("APA"). The protester alleges that on August 3, 2000, APA improperly prevented Ruscigno and Local 805 member Alexandra Pope from "gathering accreditation petition signatures on behalf of the Tom Leedham slate from Local 560 members in the [APA] employees (sic) parking lot on 88th and Tonelle" Avenue in North Bergen, New Jersey. The protest cites to the "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 has been a full time business agent employed by Local 802 since 1996. Ruscigno has an automobile provided by the local, and is allowed use of the vehicle for personal business.
Ruscigno decided to campaign on behalf of the Tom Leedham slate among employees of APA in North Bergen, New Jersey. Local 560 represents APA's employees.[1] Before Ruscigno went to APA, he asked an APA driver how to get access to the employee parking area. The Teamster driver told him to contact "Joe Wallen", "Sal Petandia", or "Bert Treboard" (spelling of each name unknown). On July 31, 2000, Ruscigno called Wallen and left his beeper number and a message with Wallen's secretary stating that he desired access to APA's employee parking lot for campaign purposes. Wallen did not respond before Ruscigno's visit to the facility on August 3, 2000.
On that day, Ruscigno arrived at APA in his Local 802 vehicle at about 7:20 a.m. He normally starts work for Local 802 at approximately 9:00 am. At about 7:35 a.m., Alexandra Pope arrived. Pope is a full time business agent for Local 805. She also normally starts work at 9:00 a.m. Pope drove her personal vehicle. During the Carey administration, Pope was a representative employed by the International Union's Warehouse Division under Tom Leedham. The two petitioners parked their cars across the street from the employee entrance/exit and truck entrance/exit to APA's premises.
A key-carded gate controls the APA employee entrance on 88th Street. A guard controls the truck entrance. 88th Street is a relatively narrow two-lane street with heavy truck traffic, and a sidewalk on the APA side of the street. The employee entrance leads to the employee parking area.[2] Approximately three fourths of the way through this long, narrow parking area on the left is a break area with several picnic tables adjacent to the entrance to the employee lunchroom and dispatch office. In the lunchroom - visible through windows - are about 25 tables. The entrance to these facilities is only about 15 feet from the nearest employee parking space.
On the morning in question, Ruscigno and Pope waited until a vehicle opened the key card gate, and walked on to the property behind the vehicle before the gate shut.[3] They proceeded to the area of the picnic tables adjacent to the cafeteria, and began asking passing employees to sign petitions for the Leedham slate. This activity proceeded uneventfully for a short period. Ms. Pope recalls that the pair got about 20 signatures.
Then, James Gutierrez, an APA supervisor, approached the pair. Ruscigno recalls that Gutierrez said, "You're not allowed to be in this parking lot. It's private property." Ruscigno and Pope told Gutierrez that they were there with petitions for Leedham, and that they had "a right to be here." Ruscigno gave Gutierrez a copy of the 1995 "Advisory on Limited Right of Access to Employer Premises." Gutierrez stated that he would have to show it "to a vice president." Gutierrez left, and the petitioners continued their activity.
A short time later, Gutierrez returned with Danny Martin, the operations manager. Martin was annoyed. He stated that the petitioners had to get off private property and that "you have to stand in the street or by the security booth at the truck gate." Ruscigno asked Martin if he had read the Advisory, and said that the petitioners did not want to back up traffic at the truck gate. Martin said he had not read the Advisory, and repeated that the petitioners would have to get off private property. Pope recalls that they urged Martin to call Local 560, but he refused to do that. At this point, Ruscigno and Pope left APA property.
Pope stationed herself at the employee entrance, adjacent to the keycard apparatus, where she continued her petitioning activity for about 15 minutes. At the fence, a worker told Ruscigno that there was another employee parking lot on 85th street, and that the petitioners were "missing half the people." Ruscigno went to that area, observed another controlled employee parking area, saw clerical employees (not in the Teamster bargaining unit) entering another employee entrance, and returned to 88th Street. The petitioners left the area by 8:30 am.
No Local 560 officials were involved in this situation, and neither petitioner has any knowledge of APA's treatment of other IBT members who may have engaged in petitioning activity at the North Bergen facilities.
Office of Election Administrator representative Thompson repeatedly attempted to contact operations manager Martin by phone. Mr. Martin was consistently unavailable.[4]
Analysis and Conclusion
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[5]. 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."[6]
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.
We find that APA violated these provisions of the Rules here. APA's denial of parking lot access is undisputed. Nor is there any evidence that Ruscigno's and Pope's presence in the APA employee parking lot interfered with or disrupted APA's operations in any way. 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.
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 APA 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 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.
cc: Kenneth Conboy
William W. Thompson II
2000EAD17
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
Teamsters Local 560
707 Summit Ave.
Fifth Floor
Union City, NJ 07087
Teamsters Local 802
41-20 Crescent St.
Long Island City, NY 11101
A.P.A. Trucking Co.
Attn: Danny Martin
2100 88th St.
North Bergen, NJ 07047
[1] Until it was dissolved in the last few months (following a period of trusteeship), Local 617 represented the warehouse and driver employees of APA. Following the dissolution, Local 617's units were divided among several other locals, with Local 560 succeeding to the representation of APA's employees.
[2] A sign in the area says "APA employees only. All others will be towed at their own risk."
[3] Ruscigno has leafleted outside the gate during the past year. About one year ago, he was removed from APA property by management while distributing the Teamsters for a Democratic Union publication Convoy Dispatch.
[4] Given APA's non-participation in the investigation of this case, no employer claim of special circumstances justifying limitations on campaign access to employee parking lots was presented. Nor does this case present an employer claim that campaign access to its employee parking lots is unnecessary or inappropriate to meaningful exercise of democratic rights in the course of the 2000-2001 election.
[5] 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.
[6] 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."