IN RE: RICK MAZAK,
Protest Decision 2001 EAD 471
Issued: September 26, 2001
OEA Case No. PR092411CA
Rick Mazak, a member of Local 938, 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"). He alleges that Nestle Canada Inc. ("Nestle") violated the Rules by denying parking lot access to IBT members seeking to campaign for International officer candidates in its employee parking lot at its Wilton Road facility in the London, Ontario facility.
Election Administrator representative Gwen Randall investigated the protest.
Findings of Fact
It is undisputed that Nestle refuses to grant access to its employee parking lot at its London facility to IBT members seeking to campaign for International office. Such a denial occurred on September 24, 2001, when International officer candidate Diana Kilmury was refused campaign access to an employee parking lot used by IBT members employed by Nestle. Nestle confirms its anti-access position.
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. (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.
The access guarantees apply in Canada. As Judge Edelstein held in United States v. IBT, 162 LRRM 2623 (October 14, 1999), the election rules that have emanated from the Consent Order have been applied outside the territory of the United States if the activity regulated has a "substantial, direct, and foreseeable effect within the state, but only in respect to such activity." Id. at 2627, quoting United States v. IBT, 945 F.Supp. 609, 620 (S.D.N.Y. 1996). The centrality of the access provisions of the Rules to the Consent Order's goal of "free, fair and democratic election[s]" in our view fully supports the application of the access provisions of the Rules in Canada, where a significant portion of the IBT's membership resides and works. Denial of limited access to employee parking lots in Canada will deny candidates meaningful access to employees, and impair the ability of the IBT to conduct a fair and open election for its convention delegates and International officers.
We find that Nestle has violated these provisions of the Rules. Accordingly, the protest against Nestle 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 Nestle to cease and desist from any denial of access by IBT members to the parking lot used by ABF employees in violation of Article VII, Section 11(e) of the Rules. Failure of Nestle to comply with 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 Nestle and its American affiliates pursuant to the Consent decree and the Court's November 8, 2000 order approving the parking lot access provisions 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 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 471
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
Hoffa Unity Slate
Todd Thompson
209 Pennsylvania Ave. SE
Washington, DC 20003
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, TX 75207
Matt Ginsburg
30 Third Avenue
Brooklyn, NY 11217
Fax: 718.875.4631
IBT Local 938
275 Matheson Blvd. East
Mississauga, ON L4Z1X8
Canada
IBT Local 647
7 Hafis Road
Toronto, ON M6M 2V6
Canada
Diana Kilmury
2612 East 47 Avenue
Vancouver, BC V5S 1C1
Nestle Canada Inc.
Human Resource Manager
980 Wilton Road
London, ON N6A 4A5
Rick Mazak
40075 Longhurst Line
RR 7
St. Thomas, ON N5P 3T2
Canada
[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."