IN RE: RICHARD BERG,
Protest Decision 2000 EAD 22
Issued: September 21, 2000
OEA Case No. PR081703MW
Richard Berg, a member of Local 743, 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 Bagcraft Corporation of America, Inc. ("BCA") The protester alleges that on August 11, 2000, BCA improperly prevented Berg and another IBT member from gathering accreditation petition signatures on behalf of the Tom Leedham Slate from Local 743 members on the public sidewalk adjacent to BCA's facility at 3900 West 43rd St. in Chicago, Illinois. Berg alleges that BCA's conduct violates Article VII, Section 11(e) of the Rules.
Election Administrator representative Dennis M. Sarsany investigated the protest.
Findings of Fact
IBT Local 743 represents BCA's employees at its Chicago facility. Berg is a member of that local. On August 10, 2000, Berg and another Leedham supporter were soliciting petition signatures from BCA employees while standing on the public sidewalk near the entrance to the BCA plant. Following a conversation between Berg and a BCA supervisor, the supervisor went into the BCA facility and returned with a copy of the 1996 Election Office Advisory on Limited Access to Employer Premises for Campaigning. According to Berg, the supervisor pointed to highlighted passages in the Advisory and advised Berg and his companion that they were to restrict their campaigning to the employee parking lot.
Berg replied to the supervisor that he and his companion were on the public sidewalk and were within their rights in campaigning on public property. When the employer representative stated that he would call the police and let them sort it out, Berg and his companion decided to move to another location where IBT members were employed.
John Nellis is the Plant Manager at BCA's Chicago facility. According to Nellis, BCA provides its employees with an outside break area by placing a few picnic tables on the lawn outside the BCA offices. The tables are located near the BCA building, adjacent to the public sidewalk, and are not visually shielded from passersby on the sidewalk. Employees may elect to have their break in the normal break room or in the outside break area. Smokers invariably use the outside area to take cigarette breaks. Employees take their breaks while "on the clock," and BCA discourages any campaign activity in its break areas, except for periods between shifts.
On the day in question, according to Nellis, two individuals were conversing with some employees on break in the outdoor break area, including a BCA supervisor. The supervisor felt that the soliciting bothered some employees who did not want to be bothered with campaign matters during their break period. The supervisor reviewed a 1996 Election Officer Advisory and returned to the two individuals to point out to them that they were campaigning among employees who were "on the clock" and told them to limit their activities to the employee parking lot, soliciting employees before the beginning or after the end of their shifts.
Nellis states that one of the individuals became defensive and said that he was within his rights because he was on public property where BCA had no authority. The BCA supervisor disagreed and stated that if he called the police, they would decide the matter. At that point, the campaigners left the area.
Analysis and Conclusion
This protest is based upon a difference in viewpoint: protestor Berg feels that the Rules protect his right to campaign among employees on break, where that campaign activity takes place on public property, and where the employees who are the target of the campaign activity are on break time (whether paid or unpaid). The employer, however, views the outdoor break area as an extension of its plant facility, subject to its control and policies, especially where its employees are on company-paid time. The question here is whether the employer's conduct violated Article VII, Section 11 of the Rules.
Article VII, Section 11(e) of the Rules regulates the conduct of employers that employ IBT members. It provides that, subject to various limitations, a candidate's IBT member supporters may distribute campaign literature and otherwise solicit support for the candidate in employee parking lots among employees who are not on "working time." The Rule also provides that IBT member employees of such employers have "the reciprocal right" to receive campaign literature and solicitation under the provisions of Section 11(e).
Section 11(e) does not, however, apply here, since the conduct in question did not take place in an employee parking lot (although it did take place during break time, which - paid or not - is not working time).[1] Thus, BCA's conduct here can not be said to violate Article VII, Section 11(e).
Article VII, Section 11(d) of the Rules also affords no basis for finding an employer violation here. It provides that "…no 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." This provision of the Rules does not apply here because BCA's conduct interfered with IBT member campaign activity on a public right-of-way, and not on the employer's "premises." That being said, however, we are constrained to state that the right of union members to be free from employer interference with union activity on public property during non-working time (which, as discussed above at n. 1, includes paid breaks) is well established under the National Labor Relations Act.[2] Our role under the Rules, however, does not include sanctioning employers for violations of that Act. We are limited to the resolution of allegations of Rules violations.
The question that remains is whether any other provision of the Rules bars the employer conduct here. In our view, that question must be answered in the affirmative, due to the provisions of Sections 11(a) and (g) of Article VII.
Thus, Article VII, Section 11(g) provides that "[r]etaliation or threat of retaliation by … any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules is prohibited." If BCA's threat to call the police and have Berg removed from the public property adjacent to its property interferes with a "right guaranteed by [Article VII] or any other Article of the Rules", it is "prohibited" conduct.[3]
We conclude that Article VII, Section 11(a) protects Berg's conduct and makes BCA's conduct improper under the Rules. Thus, Section 11(a) broadly guarantees the right of IBT members to engage in specified types of campaign activity not otherwise limited by Section 11(a) or other provisions of the Rules. It states:
All Union members retain the right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate …
Where any candidate or other member of the Union exercises or attempts to exercise any right under the Rules to campaign for or against the candidacy of any person for the position of delegate, alternate delegate or International Officer, members of the Union shall have the reciprocal right to hear or otherwise receive such campaign advocacy.
No candidate or member may campaign during his/her working hours. … [C]ampaigning during paid vacation, paid lunch hours or breaks, or similar paid time off is [ ] not violative of this section."
No provision of the Rules limits the application of this broadly stated right to protestor Berg's conduct here.
First, Berg's activity took place among employees on a paid break, which, as we have seen above, is not included within the definition of "working hours" or "working time." See authority cited at note 1, supra. Thus, Berg's right to engage in solicitation during the paid breaks of BCA employees is not limited by the provisions of the third paragraph of Article VII, Section 11(a) quoted above.
Second, the limitations on campaigning on employer property stated in Article VII, Section 11(e) do not apply here, since those limitations relate only to IBT members who invoke their right to campaign on employer property. Here, by contrast, Berg and his companion chose to campaign on public property adjacent to BCA's premises, and no provision of the Rules limits the exercise of campaign rights there. Thus, nothing in Article VII, Section 11(e) (or any other provisions of the Rules) supports the claim that Berg's conduct is beyond the reach of the protections of Article VII, Section 11(a).[4]
We thus conclude that Berg's campaign activity on public property outside BCA's facility among employees on a paid break is protected by Article VII, Section 11(a) of the Rules and is not limited by any other Rules provision. Accordingly, BCA violated Article VII, Section 11(g) of the Rules when it retaliated against that protected conduct by threatening to call the police unless Berg and his companion departed.
For the foregoing reasons, 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 BCA to cease and desist from any retaliation against IBT members who campaign on the public sidewalk adjacent to its Chicago facility among those of its employees who are on paid breaks or lunches, or otherwise not on "working time."
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.
Election Administrator
cc: Kenneth Conboy
Dennis M. Sarsany
2000 EAD 22
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
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Richard Berg
1336 West Argyle Street
Chicago, Illinois 60640
Teamsters Local 743
300 S. Ashland Ave.
Chicago, IL 60607
Bagcraft Corporation of America
3900 West 43rd St.
Chicago, IL 60632
[1] Under Section 8(a)(1) of the National Labor Relations Act as it has been interpreted by the Labor Board and the federal courts, employers may "prohibit solicitation during working time, but not during breaks, lunch and before and after work." Hexter, et al., The Developing Labor Law (1999 Supplement), (3d Ed., 1999), p. 21, citing Our Way, 268 NLRB 394 (1983), and Jay Metals, Inc., 308 NLRB 167 (1992), enf'd, 12 F.3d 213 (6th Cir. 1993). This rule dates back to the Supreme Court's 1943 decision in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 n. 10 (1943). In fact, the Labor Board finds that rules prohibiting union solicitation during "working time" are presumptively lawful precisely because such rules have been deemed not to bar solicitation during paid breaks and lunch. Jay Metals, Inc., supra.
[2] Johnson & Hardin Co., 305 NLRB 690 (1991), enf'd in relevant part, 49 F.3d 237 (6th Cir. 1995)(employer violated NLRA by excluding union activists from easement on publicly-owned property); Lechmere, Inc., 308 NLRB 1074 (1992)(on remand from Supreme Court, employer found to have violated NLRA by attempting to remove union activists from public property adjacent to its land). See also O'Neil's Markets, 318 NLRB 646 (1995), enf'd in relevant part, 95 F.3d 733 (8th Cir. 1996)(employer violated NLRA by excluding union activists from property owned by another entity in which it had only a non-exclusive easement).
[3] See cases cited at note 2 above, in which threats to summon police to exclude union activists from public property were deemed violative of the NLRA.
[4] As discussed above at note 2, Berg's public property solicitation is protected by the NLRA. But since our task is to enforce the Rules and not the NLRA, we do not rely upon the fact of such NLRA protection as support for our finding of a Rules violation. Instead, as stated above in text, we find a Rules violation here because Berg's conduct on public property falls within the general protection of Section 11(a) and is not limited by any other provision of the Rules. That being said, it is certainly true that the NLRA cases cited at note 2 above are not inconsistent with the result reached here.