IN RE: TOM LEEDHAM RANK AND FILE POWER SLATE,
Protest Decision 2001 EAD 496
Issued: October 4, 2001
OEA Case No. PR092713WE
The Tom Leedham Rank and File Power slate (the "Leedham 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"). It alleges that on September 25, 2001, employer Fishking Processors ("Fishking") violated Article VII, Section 11(e) of the Rules by removing campaigners, including Frank Halstead of Local 572, from Fishking's parking lot at its Ducommon Road facility in Los Angeles, California (the "LA facility").
Election Administrator representative Jason Weidenfeld investigated the protest.
Findings of Fact
Halstead says that on September 25, 2001, he, Local 630 member Raul Rodriguez, and Local 848 member Bruce Blake arrived at the LA facility to campaign for the Leedham slate. Blake left shortly after arriving to campaign at a nearby IBT employer. Halstead and Rodriguez leafleted fellow IBT members in Fishking's parking lot until they were asked to leave. The leaflet distributed dealt solely with the International officer election and contained photos of Leedham and his slate mate Maria Martinez. After refusing to leave and an unsuccessful attempt to hand materials regarding the Rules' access provision to a Fishking representative, Fishking called the police, and the campaigners were escorted off the property.
Halstead said that a present issue at Fishking might be contributing to the company's stance. Local 630 currently represents Fishking members but has relinquished representational rights as of October 31, 2001. Local 63 seeks to represent these members, and a representational election is slated for November 2, 2001.
Fishking's version of the campaigners' visit is similar to Halstead's. Fishking claims that two or three people came to the lot saying that they were Teamsters and talked with Fishking employees. The campaigners arrived without notifying anyone at Fishking of their arrival, were belligerent, and did not identify themselves as being part of a particular local. Fishking asked the campaigners to leave, they refused, and the police were called to remove the campaigners from Fishking's private property.
Fishking also confirms that the representational election plays a large role in its position. Fishking observes that the current members are deciding shortly whether to be represented not only by Local 63 but by the Teamsters generally. The representational campaign has been contentious. Fishking says that it does not want Local 63 members entering its property under the guise of the International election and fears that even non-Local 63 members will speak about the benefits of union membership, thus affecting the representational election. The company notes that no one would ordinarily be able to go on a company parking lot to campaign in a representational election.
Finally, Fishking gave an example of the contentiousness of the representational election. Fishking alleges that the day before the campaigners arrived, Local 63 drove their trucks down the street separating two Fishking facilities, blocked the loading dock, and held a rally in the street. While Fishking recognizes the local union's right to have a rally in the street, police had to be called to stop Local 63 from blocking the loading dock.
Analysis
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.
Here, Fishking's employees are at present IBT members, and will be receiving ballots shortly for the International officer election. The fact that Fishking's employees will also be voting in a separate November 2, 2001 representational election does not negate the application of the Consent Order, Judge Preska's attached Order and Article VII, Section 11(e) of the Rules to Fishking and its IBT member-employees.
At the same time, Article VII, Section 11(e) does not grant IBT member-campaigners the right to use the access it grants "for purposes or under circumstances other than" the International Union election governed by the Rules. Thus, Fishking would be privileged to exclude IBT campaigners whose efforts or communications with Fishking employees on its employee parking lots concerned matters unrelated to that election. We hasten to add, however, that no such conduct has been uncovered, and thus no basis for exclusion has been presented. In other words, no special circumstances have been demonstrated justifying any limitation on the Article VII, Section 11(e) rights of IBT members here.
Accordingly, we GRANT the protest against Fishking.
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 Fishking to cease and desist from any denial of access by IBT members to the parking lot used by its employees in violation of Article VII, Section 11(e) of the Rules. Failure of Fishking 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 Fishking pursuant to the Consent Order 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 496
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 Lane
Eugene, OR 97404
Todd Thompson
209 Pennsylvania Ave., SE
Washington, DC 20003
IBT Local 630
750 South Stanford Ave.
Los Angeles, CA 90021
Fishking Processors, Inc.
1320 Newton Street
Los Angeles, CA 90021
Fram Virjee
O'Melveny & Myers LLP
400 South Hope Street
Los Angeles, CA 90071-2899
Matt Ginsburg
30 Third Ave.
Brooklyn, NY 11217
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, TX 75207
Andrew Schilling
Assistant United States Attorney
Southern District of New York
c/o United States Attorney
Eastern District of New York
1 Pierrepont Plaza
Room 1540
Brooklyn, New York 11201
[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."