IN RE: GARNET ZIMMERMAN,
Protest Decision 2001 EAD 542
Issued: November 6, 2001
OEA Case No. PR101813CA
Garnet Zimmerman, candidate for Canadian regional vice president on the Hoffa Unity slate ("Hoffa 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") against Diana Kilmury, candidate for Canadian regional vice president on the Tom Leedham Rank & File Power slate ("Leedham slate"). The protest alleges Kilmury campaigned at eight identified employers in western Canada in September and October, in violation of the Rules.
Election Administrator representative Jeffrey Ellison investigated the protest.
Findings of Fact
The protest alleges that Kilmury campaigned inside employer facilities at the following locations: IKEA Canada, The News Group, Tree Island Industrial, Coast 2000 Terminals, and Fraser River Terminal in Richmond, BC; Dairyworld Foods and Teamsters Transport Health and Welfare Fund in Burnaby, BC; and North Shore Studios in North Vancouver, BC. These events are discussed seriatim.
IKEA. Investigation shows that Kilmury and her son entered the lobby and approached the receptionist's window. According to Kilmury, she told Christina Reid, the receptionist, that she was present to deliver copies of the debate videotape and campaign literature. Reid recounted that Kilmury was "excited about coming in" and said, "Hi. I'm with the Teamsters." The receptionist notified security of Kilmury's presence. When she got security's approval, Reid had the Kilmurys sign the visitors log, issued them badges and buzzed them through the locked door into the interior area. Kilmury proceeded to the lunch room, with her son toting a large box of videocassettes. Together, they distributed approximately 60 debate tapes and several dozen Leedham slate flyers among the tables in that area.
Dawn Parsons, chief steward, confronted Kilmury and asked if she had permission to be there. Kilmury showed Parsons her visitor's badge, and Parsons was satisfied that Kilmury was inside with the knowledge and approval of appropriate authority. The visitors' log shows that the Kilmurys were inside the facility for 25 minutes.
The News Group. The protestor presented no eyewitness to Kilmury's visit to The News Group. Kilmury states that she reported to the shipping office and spoke with the person in charge, telling him that she had some election materials for the Teamsters: "I wonder if I can leave them someplace where Teamsters will get them." She said the shipping boss was "very courteous," telling her that it was okay to put them in the lunch room. He directed her to that area, and she left a number of tapes and leaflets.
Tree Island Industrial. Kilmury drove her vehicle to the guard booth at the entrance to the facility and told the guard, Benjy Susi, that she was there to drop off election materials for the Teamsters. Susi did not dispute that Kilmury was there but had no recollection of the interchange. Kilmury parked her car inside the fenced lot and she and her son proceeded inside the facility. There, she passed out tapes and flyers to a number of members. Brendan Dharmaratne, a steward and member of the safety committee, saw the Kilmurys and noted they were not wearing safety shoes, vests or other protection.
Harold Manifold, plant manager, learned of the Kilmurys' presence from a staff member, who told him there was a "union gathering on the shop floor," with someone passing out materials. The staffer asked whether Manifold knew of it and had approved it. Manifold denied advance knowledge and denied knowing who Kilmury was. He left his office to investigate the situation, found the Kilmurys and asked them who they were and why they were there. He invited them back to his office to discuss the situation. There, Kilmury explained she was a candidate in the election and was passing out copies of the debate videotape and campaign flyers. Manifold told her that when the Teamsters "want to do something, they call ahead and we try to accommodate them." He stated further that generally the company denies access when it is requested in order to avoid the appearance of partiality. He told our investigator that Kilmury's visit was the first time a candidate had appeared without his advance knowledge. After the brief meeting with the Kilmurys in his office, Manifold asked them to leave; they complied promptly.
Kilmury alleged that James Hoffa campaigned inside the facility at Tree Island earlier this year. Betty Grdina stated that she campaigned for Carey inside the facility in 1996. The protestor states that he was denied access inside the facility in 1998.
Coast 2000 Terminals. Kilmury states that she proceeded directly to the shipping office and told a supervisor she had election materials for Teamsters. According to Kilmury, the supervisor replied, "Yeah, I know who you are and what you're doing." The supervisor then directed Kilmury to the lunchroom. She left a number of tapes and flyers there, noting that Hoffa campaign material was already on display in that area.
Fraser River Terminals. Kilmury states she was directed to the lunchroom by a shipping supervisor. There, Rob Abbott, a three-year employee, saw and recognized her. He said she asked him, "Are you a Teamster?" He replied, "Yes, but I don't want to have anything to do with you." He said Kilmury then said, "I've got some videos for you guys that the Election Office said had to be supplied." Abbott said Greg Crompton, a man he described variously as the "owner" and the "CEO," was filling the candy machine nearby and, according to Abbott, was enjoying the way his employees were responding to Kilmury. Both Kilmury and Abbott deny that Crompton took any action to halt Kilmury's activities or ask her to leave. Abbott states that Crompton told Kilmury not to post campaign literature on top of other postings on the nearby bulletin board. Abbott and Kilmury agree that Kilmury left the facility without being asked to leave.
Dairyworld Foods. Willis Allsup, a steward and a 15-year employee, recognized Kilmury in the parking lot distributing leaflets and videotapes when he reported for work at 5 a.m. He picked up a tape and a flyer, reported on duty, and made his first trip of the day. When he returned around 7 a.m., he noticed her car was in the "upper" parking lot where management parks. He went into the drivers' room and found her putting tapes and leaflets into drivers' "cubbyholes." He was surprised to see her there but surmised she "must have got access from the guards."
Kilmury confirms she was permitted inside by security. She proceeded to the dispatch area and asked how she could distribute her tapes and leaflets for the Teamsters who worked there. The dispatcher directed her to slip them into the drivers' cubbyholes.
Allsup states that he has seen campaign material in the drivers' room in previous elections, but finding it in the cubbyholes was new to his experience.
Teamsters Transport Health & Welfare Fund. The fund maintains a suite of offices in a commercial office building. Kilmury entered the lobby and proceeded to the sliding glass reception window. She spoke with the receptionist, Leah Walker, a Teamster and 1-year employee, telling her, "I assume you've already decided to vote for the other guy but here's some material for the Leedham slate." She then asked Walker how many Teamsters worked in the office. When Walker said, "Eight," Kilmury left 4 tapes and 4 Leedham leaflets. Walker accepted the material and Kilmury then departed.
Gary MacKenzie, fund manager, stated that campaign literature is permitted in the employee lunchroom in the back of the suite but not in the lobby.
Northshore Studios. Paul deBourcier saw Kilmury enter the employee parking lot, exit her vehicle with tapes and leaflets and distribute them. He did not observe her proceed from the employee parking lot to any other area of the facility.
Kilmury confirmed she distributed tapes and leaflets in the employee parking lot at Northshore.
Neither Kilmury nor the protestor are employed by any of the employers involved in this protest.
For each of the employers involved, the protestor acknowledges that he has not been denied requested access to the employer's premises.
Analysis
Article XI, Section 1(b)(2) bars an employer from contributing "directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate. No candidate may accept or use any such contribution. … These prohibitions extend beyond strictly monetary contributions made by an employer and include contributions or use of employer stationery, equipment, facilities and personnel."
In Thompson, 2001 EAD 332 (April 30, 2001), aff'd, 01 EAM 73 (May 24, 2001), we found candidate Leedham violated the Rules by entering an employer premises to campaign without the employer's knowledge or consent. We wrote:
By accessing the inside of these employer facilities for campaigning, Leedham and his supporters indirectly appropriated a "thing of value" from the three employers. Because employer contributions - even contributions the employer does not know it is making - are prohibited, we find that the campaign access inside the CF, Holland Trucking and Porcelain Metals facilities violates the Rules. See Sylvester, 2001 EAD 288 (March 31, 2001).
We applied the Thompson precedent in Cobb, 2001 EAD 464 (September 20, 2001), to find General Secretary-Treasurer candidate C. Thomas Keegel had received a prohibited employer contribution when an employer knowingly permitted him access to an employee break room after previously denying similar access to candidate Leedham.
A tension exists in the Rules between the foregoing provision and the precedent applying it, and Article VII, Section 11(d), which protects "candidates' or members' preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on employer or Union premises. Such facilities and opportunities shall be made available to all candidates or members on a non-discriminatory basis."
Harmonizing these provisions, the Rules protect campaigning inside an employer's facility where a preexisting right to do so exists or where the employer grants such access on a non-discriminatory basis. They bar such campaigning where there is no preexisting right to campaign or where the opportunity to campaign is granted discriminatorily.
We applied the referenced Thompson precedent in Cobb, 2001 EAD 509 & 513 (October 16 and 18, 2001), reversed, 01 EAM 100 (October 19, 2001), reconsideration denied, 01 EAM 100(a) (October 26, 2001). In that case, we held that General President candidate James P. Hoffa had received an improper employer contribution when the employer consented to his entry to an employee break room. We based our finding on evidence there was no preexisting right to campaign there. In reversing our decision, the Election Appeals Master held that "notice by employers to candidates of access rights to employer facilities is not required under the Rules. Furthermore, to state a viable protest, the candidate or campaigner must affirmatively establish that he specifically requested, on reasonable notice, access and was denied access."
We DENY the protest. Applying the Election Appeals Master's decision in Cobb, supra, a jurisdictional prerequisite to protesting non-employee campaigning inside employer premises is proof that access to those premises was granted on a discriminatory basis. The protestor acknowledges that he did not seek access to the employer premises at issue here. Therefore, his protest fails.
A further and more substantial basis exists for denying the protest. Presumptive evidence that a preexisting right to campaign inside an employer's facility under Article VII, Section 11(d) exists where the non-employee campaigner 1) presents herself to personnel authorized to secure the facility and to bar from it non-employees, 2) seeks entry for the express purpose of distributing campaign material, and 3) is permitted entry for that purpose. Under such circumstances of employer consent, a campaigner may reasonably conclude that a preexisting right to campaign there is in place. Under such facts and the Election Appeals Master's decision in Cobb, supra, a violation of Article VII, Section 11(d) and (f) is not stated absent discrimination against other campaigners.
With respect to Kilmury's visits to IKEA, The News Group, Coast 2000 Terminals, Fraser River Terminals, and Dairyworld Foods, the uncontradicted evidence is that such employer consent was granted, either by security or by supervision, and access for the acknowledged purpose of distributing campaign materials was given. Indeed, at many of these facilities, Kilmury was given directions by such personnel to the specific location where she could distribute the materials, acts that further proved a preexisting right to campaign there.
Moreover, at Tree Island Industrial, Kilmury was permitted access by uniformed security. Although she was subsequently asked to leave by the facility manager, that request did not void ab initio the permission the guard previously granted. Rather, Kilmury was entitled to rely on the guard's authorization to enter the premises, which was reinforced by the experience she and others previously had of campaigning inside the facility.
At the Teamsters Transport Fund facility, we find that the lobby was controlled by the receptionist, who took no action to bar Kilmury from the premises. Rather, she accepted the materials Kilmury offered, and Kilmury promptly departed. For the foregoing reasons, the Rules were not violated by this exchange.
Finally, the only evidence of Kilmury's activities at Northshore Studios involve campaigning in the employee parking lot, permitted under Article VII, Section 11(e) of the Rules.
The precedent in Thompson, supra, and Chapman, 2001 EAD 512 (October 17, 2001), stay denied (October 19, 2001), appeal withdrawn, is inapposite here. In each of those cases, the campaigners entered the premises without consent of or knowledge by the employer and under circumstances where no preexisting right of non-employee campaign access was established, and where, in fact, other non-employee campaigners had been denied such access. Here, by contrast, the non-employee campaigner's entry to employer facilities was with the employer's knowledge that she intended to distribute campaign material, presumptive proof that a right to campaign in that way exists under Article VII, Section 11(d).[1]
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 542
DISTRIBUTION LIST VIA FAX AND 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
3060 Penobscot Building
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
Matt Ginsburg
30 Third Avenue
Brooklyn, NY 11217
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, TX 75207
Joint Council 36
490 East Broadway
Vancouver, BC V5T 1X3
Canada
Garnet Zimmerman
IBT Local 31
1 Grosvenor Square
Delta, BC V3M 551
Canada
Diana Kilmury
2612 East 47th Avenue
Vancouver, BC V5S 1C1
Canada
IKEA Canada
Human Resource Manager
3200 Sweden Way
Richmond, BC V6V 2A5
Canada
The News Group
Human Resource Manager
2500 Vauxhall Place
Richmond, BD V6V 1Y8
Canada
Dairyworld Foods
Human Resource Manager
6800 Lougheed Highway
Burnaby, BC V5A 1W2
Canada
Teamster Transport H&W Fund
Human Resource Manager
4664 Lougheed Highway, Suite 258
Burnaby, BC V5C 6B5
Canada
Coast 2000 Terminals LTD
Human Resource Manager
12631 Vulcan Way
Richmond BC V6V 1V6
Canada
Fraser River Terminal 1986 Ltd.
Human Resource Manager
9311 River Drive
Richmond, BC V6X 1Z1
Canada
North Shore Studios
Lions Gate Studios
Human Resource Manager
555 Brooksbank Avenue
North Vancouver, BC V7J 3S5
Canada
Tree Island Industrial
Human Resource Manager
3933 Boundary Rd.
Richmond, BC V6V 1T8
Canada
Jeffrey Ellison
65 Cadillac Square
Suite 3727
Detroit, MI 48226
[1] As we explain in another decision issued today (Latzo, 2001 EAD 543 (November 6, 2001)), we construe the Election Appeals Master's decision in Cobb, 01 EAM 100, to mean that where, unlike here, a non-employee campaigner enters onto employer property to campaign without employer knowledge or consent, the Rules are not violated even if non-employees do not have the pre-existing right to campaign there, unless discrimination is shown. Under such an approach, no violation could have been found in cases such as Leedham Slate, 2001 EAD 445 (September 10, 2001), and Franken, 2001 EAD 457 (September 18, 2001), and no violation could be found here even if non-employees did not have a pre-existing right to campaign inside the facilities at issue.