IN RE: FRANK VILLA,
Protest Decision 2000 EAD 53
Issued: December 1, 2000
OEA Case No. PR092901WE
Frank Villa, a member of Local 630, 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 Vons Companies, Inc. ("VCI"). The protester alleges that on September 29, 2000, VCI improperly prevented Villa from distributing campaign literature in support of the Tom Leedham slate at VCI's facility in Santa Fe Springs, California. Villa alleges that VCI's conduct violates Article VII, Section 11(e) of the Rules.
Election Administrator representative Lisa Taylor investigated the protest.
Findings of Fact
At 5:00 a.m. on September 29, 2000, Villa arrived at VCI's employee parking lot at its Santa Fe Springs facility. The parking lot consists of two (2) long rows of parking spaces. Because there is no guard shack on the premises, Villa parked near the entrance gates. He began to pass out literature in support of the Tom Leedham slate.
Villa claims that shortly after he began, a truck approached him, sped up and then passed him. Shortly thereafter, VCI's security guard approached Villa in a car and told Villa to leave. The security guard stated that VCI had decided that it would not allow distribution of campaign literature in the parking lot, and asked Villa to move to the street. Villa asserts that there is no safe place to distribute literature on the street adjacent to VCI's facility.
Villa asked the security guard for his card and/or his information. The security guard refused to provide identification but said that his name was Fernando, that he worked with "Lost Prevention," and that was all the information that he would provide. Villa told the guard that he had the right to distribute campaign literature in the parking lot and told the security guard that he would leave, which, after a short period, he did.
Jim Mahan is employed in VCI's Labor Relations department. Mahan claims that Villa was distributing copies of Convoy Dispatch, and was asked to leave for that reason, and because he littered the parking lot with copies of the paper. Mahan failed to provide the security guard who excluded Villa from VCI's parking lot to corroborate his claim of littering. Villa admits that he was handing out copies of the September issue of the Convoy Dispatch but denies the allegation that he littered the parking lot with the newsletter. We credit Villa's description of his conduct over Mahan's claims, due to Villa' clear description of his conduct, Mahan's statement to our investigator that he was being "cagey," and the failure of VCI to provide testimony from the security guard.
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.[1] 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."[2]
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.
On November 8, 2000, the United States District Court for the Southern District of New York, Preska, J., entered an order approving the access provisions of the Rules. (A copy of that order has been provided to VCI.) Judge Preska held that "it is critical that … IBT election[s] [are] conducted in a fair, open and democratic fashion… I find the Access Rule to be a necessary means by which to achieve this goal, specifically to permit candidates and members to have meaningful, face-to-face interaction." Id. at 14.
We find that VCI violated these provisions of the Rules here.[3] VCI's denial of parking lot access is undisputed. Nor is there any credible evidence that the presence of Villa or any other IBT member in the VCI employee parking lot interfered with or disrupted VCI's operations in any way.
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 VCI to cease and desist from any denial of access by IBT members to VCI's 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 (February 13, 1996).
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, 727 15th Street, NW, 10th Floor, Washington, DC 20005 (fax: 202.454.1501), 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
2000 EAD 53
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 c/o Stefan Ostrach
110 Mayfair Lane
Eugene, OR 97404
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Teamsters Local 630
750 South Stanford Ave.
Los Angeles, CA 90021
Frank Villa
151 W. Lambert Rd.
Apt. 4
La Habra, CA 90631
Vons Companies, Inc.
12801 Excelsior Drive
Santa Fe Springs, CA 90670
[1] 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.
[2] 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."
[3] The Rules, while not then approved by Judge Edelstein, were in effect prior to August 10, 2000.