IN RE: MICHAEL LASLETT,
Protest Decision 2000 EAD 23
Issued: September 21, 2000
OEA Case No. PR080802WE
Michael Laslett, a member of Local 85, 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 Tri-Valley Growers ("TVG"). The protester alleges that in the afternoon of August 4, 2000, and again on August 5, 2000, TVG improperly prevented Laslett and IBT members from "attempting to gather accreditation petition signatures for the Rank & File Power Slate" from Local 748 members in the TVG employee parking lot at its Plant 7 facility in Modesto, California. Specifically, the protest alleges that "management used threats of discharge and intimidation to prevent Teamster employees from signing the petition [and that] the County Sheriff removed us from the property at TVG management's request." The protest relies upon Article VII, Section 11(e) of the Rules.
Election Administrator representative Chris Mrak investigated the protest.
Findings of Fact
TVG operates three plants in the Modesto area, the largest of which is Plant 7, at which 3000 persons work on three shifts. Plant 7 produces food products. The plant occupies 80 acres with 20-25 buildings. It is fenced, with two main entrances for employees to enter and exit. One entrance is near the warehouse area and usually has traffic of about 100 employees per shift. All other employees go through a fenced walkway, and at this entrance about 600 employees leave the plant at 3:00. The remaining first shift employees' departures are staggered between 2:00 and 3:00 p.m. The plant fronts on Finch Road, a five-lane, heavily traveled arterial. There are several gates from the Plant 7 parking lots onto Finch. There is no public sidewalk. The plant is just southeast of the Modesto city limits.
On Friday, August 4, 2000 Laslett, Joe Fahey (president of IBT Local 912) and two other individuals who are not Teamster members, went to TVG Plant 7 in Modesto to collect signatures on an accreditation petition for the Leedham slate. They attempted to span the staggered shift changes occurring from 2:00 to 3:00 p.m., and set up a card table inside the parking lot and against the fence several feet from the fenced walkway where the vast majority of employees enter and exit.
TVG Human Resources Manager Art Tharpe and his assistant Marcus Rubalova confronted Laslett and the others and demanded that they leave the premises. According to Laslett, Tharpe and Rubalova physically interjected themselves between the petitioners and the employees and kept demanding that they leave, thus inhibiting the collection of signatures. Laslett explained why they were there and showed Tharpe a copy of former Election Officer Cherkasky's 1998 Advisory on Limited Right to Access to Employer Premises. Nevertheless, Tharpe called the police, who pulled the petitioners aside, checked with their superiors (in light of the Cherkasky Advisory), and then directed them to leave the premises, which Laslett and his colleagues did.
Laslett also claimed that while he was soliciting the signature of a male employee he heard a female employee tell the male employee in Spanish not to sign the petition or he would be fired. Laslett, who speaks Spanish, asked the female employee who had told said that and she pointed to Rubalova. Laslett did not know her name, and her testimony was not provided during the investigation. Rubalova denies that he made such a statement. We find the evidence here is insufficient to establish that Rubalova made the alleged threat.
Tharpe concedes that he and Rubalova went out to the parking lot and demanded that Laslett and the others leave. He also admits that he remained present until the police ejected Laslett and the others. Laslett claims that the petitioners refused to identify themselves, provided no advance notice of their arrival, and, except for Laslett, displayed an offensive "attitude."[1] Tharpe also claimed that his main concern was preventing a bottleneck near the walkway and wanting advance notice of the time campaigners would be present and their number. Tharpe did not rely upon claims concerning safety, agreed that there was no public access option, and agreed that restricting petitioners to the gates fronting on Finch Road would create a safety hazard, as well as a "bottleneck" more severe than would be the case if they solicited from within the parking lot.
Laslett attempted to address Tharpe's notice concerns by sending him a letter on August 4 immediately after being ejected. The letter identified Laslett by his name, address and phone number, and indicated that he was a member of Teamsters Local 85. The letter asked permission to return to TVG in 24 hours to solicit support for the Leedham slate in the TVG parking lot. Tharpe responded to the letter at 1:30 p.m. the next day by leaving a voicemail for Laslett denying such permission. On the voicemail, Tharpe said that after consulting with counsel he had a prepared statement. As read by him on the voicemail it said, "Tri-Valley Growers makes it a policy to not allow people to solicit for any reason on company property. Your request to be on company property to solicit signatures, and/or to hand out information, or to talk to employees is being denied. If you come on company property without permission you will be subject to arrest for trespassing."
During our investigation, an attempt was made to negotiate an agreement with TVG concerning parking lot access. That attempt at settlement was unsuccessful, and we accordingly will decide the protest on the merits in this decision.
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 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]. The right to engage in such campaigning applies "only during times when the parking lot is normally open to employees" and "do[es] 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." Article VII, Section 11(e). 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." Id.
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 1367.
We find that TVG violated these provisions of the Rules here. TVG's denial of parking lot access is undisputed. Nor is there any evidence that the presence of Laslett and other IBT members in the TVG employee parking lot interfered with or disrupted TVG's operations in any way. Moreover, it is undisputed that any attempt by these individuals to conduct their campaign activities adjacent to the gates leading to TVG property would be unsafe and would not allow adequate communication with TVG employees.
The employees with whom the Laslett and his colleagues were attempting to interact were those either on their way to or from work or on break. The attempt to solicit these employees was not disruptive and did not raise safety concerns. 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 TVG 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.[4]
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
Chris Mrak
2000EAD23
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
Teamsters Local 85
2660 Newhall Street
Suite 205
San Francisco, CA 94124
Teamsters Local 748
1222 "I" Street
Modesto, CA 95354
Joe Fahey
Teamsters Local 912
163 West Lake Avenue
Watsonville, CA 95076
Tri-Valley Growers
2801 Finch Road
Modesto, CA 95354
Attn: Art Tharpe
Michael Laslett
604(a) Capp Street
San Francisco, CA 94110
[1] Laslett says that Thorpe never asked for identification, and that he and his colleagues showed the police identification. Laslett claims that he gave his name to Tharpe when asked. He says that Tharpe seemed most concerned with whether they were associated with LU 748. Given Laslett's letter to Tharpe on August 5, discussed in text, we find that Laslett was not hesitant about identifying himself, and accordingly credit Laslett to the extent there is a divergence in the testimony of Laslett and Tharpe concerning requests for identification made to Laslett and the others.
[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] We reject Laslett's claim that the remedy here should also include access by campaigners to TVG's lunchroom and break areas. Based on our above-discussed rejection of Laslett's allegation that Rubalova improperly threatened retaliation against TVG employees who signed election petitions, we also reject Laslett's claim that our remedy should include an employer notice to all of its IBT-represented employees stating that employees will not be disciplined by TVG for signing election petitions or otherwise engaging in campaign activities onin non-work areas on non-work time.