IN RE: LORETTA DEVASIER,
Protest Decision 2001 EAD 323
Issued: April 19, 2001
OEA Case No. PR031912WE
See also Election Appeals Master decision 01 EAM 71 (KC)
Loretta DeVasier, a member of Local 89 and a delegate candidate on the United Rank and File slate, 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"). DeVasier alleges that the Brown-Forman Corporation ("BF") and shop steward Bob Whitaker, an alternate delegate candidate on the Zuckerman-Washburn Unity slate, violated the Rules by denying parking lot access to members supporting the United Rank and File slate.
Election Administrator representative Jason Weidenfeld investigated the protest.
Findings of Fact
DeVasier arrived at BF's Early Times distillery at approximately 6:00 a.m. on March 16, 2001. BF's security guard denied DeVasier access to its parking lot. Upon hearing that DeVasier had been denied access, another United Rank & File slate delegate candidate, Dale Ferguson, attempted to gain access. The guard asked Whitaker whether he knew about the right to campaign on the parking lot. Whitaker said that he knew of no such right.[1] At this point, Ferguson was denied access.
Local 89 mailed ballots for its delegate and alternate delegate election on April 3, 2001 and will hold its count on April 24, 2001.
Throughout Local 89's delegate election, BF has not permitted access to delegate candidates and Local 89 members within the terms of Article VII, Section 11(e) of the Rules. Our investigator has attempted, without success, to secure BF's agreement to allow access under terms consistent with Section 11(e). Instead, BF has offered access subject to limitations that are contrary to both the letter and spirit of this section.
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.
On November 8, 2000, the United States District Court for the Southern District of New York, Preska, J. (the "Court"), entered an order approving the access provisions of the Rules. A copy of that order is attached hereto as Attachment A. 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 BF has violated these provisions of the Rules. Accordingly, the protest against BF is GRANTED.
Whitaker -- especially as an alternate delegate candidate -- should have been aware that the Rules provide a right to campaign on parking lots. Our investigator spoke with Irwin Cutler, Local 89's attorney, on March 23, 2001. Cutler stated that Whitaker did not know of the access right when DeVasier and Ferguson attempted to campaign. Cutler also stated that the posting required in Thornsberry, supra, which occurred after March 16, 2001, had made Whitaker aware of the right. Whitaker's ignorance of the rights of his constituents, however, is no excuse for his conduct, and as in Thornsberry we GRANT the protest against him.
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 BF to cease and desist from any denial of access by IBT members to BF's employee parking lots in violation of Article VII, Section 11(e) of the Rules. Further, BF must provide written evidence to the Election Administrator by Monday, April 23, 2001, indicating that it has revoked its current position and will immediately commence allowing IBT members their right to access consistent with Article VII, Section 11(e) and the orders of the Court. Failure of BF to comply with any of the foregoing shall result in referral of this matter to the United States Attorney for the Southern District of New York for further action against BF pursuant to the Consent decree and the Court's November 8, 2000 order approving the parking lot access provisions of the Rules.
To ensure that BF's actions do not affect Local 89's delegate election, we further order the Kentucky Labor Cabinet, the entity conducting the election, to segregate ballots received from members employed by BF. These ballots shall be treated as challenged ballots and will be counted, if at all, solely by a representative of the Election Administrator. We also reserve the right to take further remedial action, including a partial rerun of the Local 89 election, if we determine that the election results might have been affected by BF's failure to grant access and by Whitaker's violation of the Rules.
Finally, we reserve for determination following the April 24, 2001 ballot count the manner in which an appropriate notice will be given to Local 89 members employed at BF of their rights under 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 (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 upon evidence that was not presented to the Office of the Election Administrator in any such appeal. 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, 727 15th Street NW, Tenth Floor, Washington, DC 20005 (facsimile: 202-454-1501), all within the time 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
2001 EAD 323
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
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
IBT Local 89
3813 Taylor Blvd.
Louisville, KY 40215
Bob Whitaker
c/o IBT Local 89
3813 Taylor Blvd.
Louisville, KY 40215
William A. Blodgett, Jr.
Deputy General Counsel
Brown-Forman Corporation
850 Dixie Hwy.
Louisville, KY 40210
Loretta DeVasier
4004 Neagli Ct.
Louisville, KY 40229
Dale Ferguson
3504 Kamer Miller Road
New Albany, IN 47151
Avral Thompson
Campaign Manager
Zuckerman-Washburn Unity Slate
9135 Loretto Road
Loretto, KY 40034
David Thornsberry
Campaign Manager
United Rank and File Slate
10403 Truman Way
Louisville, KY 40299
Irwin H. Cutler, Jr.
Adrienne A. Berry
Segal Stewart Cutler Lindsay
Janes and Berry
1400B Waterfront Plaza
325 W. Main St.
Louisville, KY 40202
Michael J. Goldberg
73 Harrowgate Drive
Cherry Hill, NJ 08003
Nyle Mullins
Kentucky Labor Cabinet
1047 US Hwy. 127 South
Suite 4
Frankfort, KY 40601
Dennis M. Sarsany
1829 Eddy St.
Chicago, IL 60657
Bill Broberg
1108 Fincastle
Lexington, KY 40502
[1] In Thornsberry, 2001 EAD 234 (March 13, 2001), we found that a representative of Local 89 had impeded the campaign rights of Local 89 members and ordered Local 89 to "inform its representatives and employees that no one may interfere with a member's right to campaign in the parking lots of employers of Local 89 members…" The Local's notice to its representatives pursuant to that order was to be mailed to them by March 19, 2001. Local 89 members have been otherwise denied their right to parking lot campaign access. See DeVasier, 2001 EAD 197 (February 27, 2001).
[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 order shop steward Whitaker to cease and desist from an further violations of Article VII, Section 11(e) of the Rules. No further remedy is necessary as to Whitaker in these circumstances, given the remedy ordered in Thornsberry, supra.