Protest Decisions

IN RE: CRAIG KARNIA, 
Protest Decision 2000 EAD 35
Issued: October 10, 2000
OEA Case No. PR080903MW

Craig Karnia, a member of Local 705, 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 Lakewood Engineering & Manufacturing Co. ("LEMC"). The protester alleges that on August 8, 2000, LEMC improperly prevented Karnia and other IBT members from gathering accreditation petition signatures on behalf of the Tom Leedham Slate from Local 743 members in the parking lot at its facility at 525 N. Sacramento Blvd. in Chicago, Illinois. Karnia alleges that LEMC's conduct violates Article VII, Section 11(e) of the Rules.

Election Administrator representative Dennis M. Sarsany investigated the protest.

Findings of Fact

On August 8, 2000, Karnia and four other IBT members drove to the LEMC Chicago facility in two vehicles for the purpose of soliciting signatures on Leedham slate accreditation petitions. LEMC maintains a parking lot that is used by both employees and business visitors. Shortly after entering the LEMC parking lot, a security guard asked Karnia and the others for identification. In response, Karnia and the others told the security guard that that they were IBT members who wished to solicit petition signatures from members employed at LEMC. The security guard told them that they would have to speak to the Human Resources Department. Therefore, Karnia and the others entered the plant facility office and met with Linda Conway, who identified herself as being a manager in the Human Relations Department of LEMC.

Karnia told our investigator that Conway stated that LEMC has a firm policy regarding the security of its property and, consequently, its policy has always been to prohibit campaign activity by non-employees on its property. She advised them that past IBT campaigners had always been satisfied to conduct their activity in the two areas where the public sidewalk intersected with the parking lot driveway and pedestrian walkway from the plant's employee entrance. According to Karnia, Conway stated that activity in these areas would be consistent with LEMC's company policy and urged the campaigners to confine themselves to these areas.

Karnia and his friends then provided Conway with a copy of the 1996 Election Officer's "Advisory on Limited Access to Employer Premises for Campaigning." According to Karnia, Conway stated that she had never seen the document before and that she would have to digest its contents and speak to outside counsel before making any exceptions to LEMC's policies. At this point, the Leedham group left the offices and the LEMC property.

Our investigator also interviewed Linda Conway. Her version of the events of August 8 was generally consistent with Karnia's. She did, however, state that the version of the 1996 Advisory presented to her by Karnia and his friends did not include all pages of the Advisory and that she told the campaigners that she would not make any decisions based upon a partial copy. She agrees that she advised Karnia and the others that they would have to cease activity on LEMC property until she could consult with the company's outside counsel.

LEMC thereafter consulted with attorney William Sullivan, who wrote to the Election Administrator on behalf of LEMC. His letter made several points:

	Due to LEMC's unique location on a lightly traveled access road parallel to Sacramento Boulevard, it is appropriate for LEMC to restrict access to its parking facility and limit campaign activities to (i) the intersection of the access road and the driveway to the parking lot; and (ii) the intersection of the pedestrian walkway and the public sidewalk east of and parallel to the access road;
	LEMC's policy of restricting access to its parking lot has not been challenged in previous elections and therefore, there is no pre-existing political right to be protected;[1]
	The Election Rules which provide the right of access were not approved by the court on August 8, 2000 and were, therefore, at that time, "not in effect" and thus incapable of overcoming the private property rights of the employer;[2] and
	LEMC is prepared to provide the IBT with the home addresses of its IBT employees, obviating the need to campaign at the plant.

Our investigator visited the LEMC facility as part of this investigation. He found that the physical description of the plant property and surrounding neighborhood contained in Sullivan's letter are relatively correct. LEMC's pedestrian access walkway to Sacramento Boulevard does intersect with the public sidewalk, providing access to LEMC employees who arrive for work on foot. Moreover, the employee parking lot driveway does feed off a relatively unused access road that parallels Sacramento Boulevard. However, on both occasions our investigator visited the plant, the access road that counsel suggests as an appropriate place to solicit inbound vehicular traffic was lined with 40 foot trailers either parked at LEMC's docks, which run along the access road frontage, or at the curb on either side of the access road. There is not much available roadway to accommodate campaign activities without fully or partially blocking access to the parking lot. As a result, it appears that LEMC's proposed situs for campaign activity directed to employees arriving and/or departing work by car fails to provide adequate access to such employees.

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.[3]  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."[4]

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 LEMC violated these provisions of the Rules here.[5]  LEMC's denial of parking lot access is undisputed. Nor is there any evidence that the presence of Karnia or other IBT members in the LEMC employee parking lot would interfere with or disrupt LEMC's operations in any way. Moreover, we find that limiting campaigners to campaign activity at the off-property sites suggested by LEMC would not allow adequate communication with LEMC's employees arriving and departing work by car.

Finally, we find no support in the Rules for the position that an employer can negate the right of campaigners to personally campaign among IBT members in their workplace parking lots by furnishing employee mailing addresses for campaign purposes. To adopt such a position, at least where an employer has not shown that disruption of its operations would result from a grant of parking lot access, would require campaigns seeking face-to-face contact with members to visit the homes of each member, resulting in a significant multiplication in the resources required to conduct such campaigning. We cannot accept this proposed alternative to parking lot access because it is inconsistent with the provisions of the Rules that grant a right to such access, a grant that is not subject to the limitation proposed by LEMC. LEMC's proposed alternative to parking lot access, if adopted, would make it much more difficult to provide for the kind of free, fair and open election contemplated by the Rules and the Consent Order.

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 LEMC 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.

Election Administrator

cc: Kenneth Conboy

Dennis Sarsany

2000 EAD 35

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 705

1645 west Jackson Blvd.

Chicago, Illinois 60612

Teamsters Local 743

300 S. Ashland Ave.

Chicago, Illinois 60607

Craig Karnia

11108 South Deerpath

Palos Hills, IL 60465

Lakewood Engineering & Manufacturing Co.

525 North Sacramento Blvd.

Chicago, IL 60612

William R. Sullivan

Franczek Sullivan P.C.

300 South Wacker Drive

Suite 3400

Chicago, IL 60606