IN RE: STEFAN OSTRACH, Protestor.
Protest Decision 2005 ESD 35
Issued: December 14, 2005
OES Case No. P-05-046-120805-FW
Stefan Ostrach, member of Local Union 206 and treasurer of Tom Leedham Strong Contracts, Good Pensions slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). He alleged that a managers at Swartz Moving Company impermissibly interfered with the parking lot campaign rights of a member who support the Leedham campaign. He further alleged that such interference constituted an improper contribution to the Hoffa campaign.
Election Supervisor representative Christine Mrak investigated this protest.
Findings of Fact
The protest alleged that, on December 6, 2005, Bill Zimmerman, a member of Local Union 206, appeared at Swartz Moving Company on NE Sunderland Avenue in Portland, Oregon to solicit accreditation signatures for the Leedham slate. Swartz Moving is under contract with Teamsters Local 162. The protest stated that, before Zimmerman entered the employee parking lot, two managers questioned him as to his purpose and asked that he leave. Zimmerman showed the managers the court order approving the Rules and assured them he would ask employees whether they were on the clock before seeking their signatures on petitions. The managers then left.
According to the protest, several employees came out and spoke with Zimmerman. He asked whether they were on the clock; they said they were not. One of the two managers then returned and, according to the protest, asked the employees whether Zimmerman had asked if they were on the clock. The group said he had. The protest states that the manager then said, "We don't want him around here; ask him to leave." The group complied and Zimmerman obtained no signatures on the petitions.
Swartz' managers deny interfering with Zimmerman's activity, but state that they commit to their customers to maintain a secure facility from which non-employees are excluded.
After discussions with our investigator concerning the Rules provision governing campaign activity in employer parking lots, Swartz Moving Company has agreed not to impede or otherwise interfere with the rights defined by that rule.
Analysis
The Rules provide the following with respect to campaigning in employee parking lots:
(e) Subject to the limitations in this Subsection, (i) a candidate 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; (ii) each member of a candidate's Local Union has the reciprocal right to receive such literature and/or solicitation of support from such candidate or candidate's advocate; (iii) a candidate 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 Union members to park their vehicles in connection with their employment in said regional area(s); (iv) each member of the International Union who is employed within the regional area(s) in which said candidate is seeking office has the reciprocal right to receive such literature and/or solicitation of support from such candidate for International office or candidate's advocate.
The foregoing rights are available only in connection with campaigning during the 2005-2006 IBT International Union Delegate and Officer Election conducted pursuant to the Consent Order and only during hours when the parking lot is normally open to employees. The rights guaranteed in this Subsection are not available to an employee on working time, may not be exercised among employees who are on working time and do not extend to campaigning which would materially interfere with the normal business activities of the employer. An employer may require reasonable identification to assure that a person seeking access to an employee parking lot pursuant to this rule is a candidate or other member entitled to such access. Nothing in this Subsection shall entitle any candidate or other Union 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.
The foregoing rights are presumptively available, notwithstanding any employer rule or policy to the contrary, based upon the Election Supervisor'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. Such presumption may be rebutted, however, by demonstrating to the Election Supervisor 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 2005-2006 election. An employer seeking to deny access to Union members in an employee parking lot may seek relief from the Election Supervisor at any time.
Article VII, Section 11(e).
Here, the employer now has agreed not to impede or otherwise interfere with exercise of the rights set forth above, provided that campaigners sign in upon arrival and not solicit employees who are on working time. The Rules contemplate both of these provisions as a balance between the campaign rights of members and the property rights of employers. On this basis, we deem this protest RESOLVED. To remedy the protest's claim that the actions of Swartz' managers on December 6 may have chilled employee involvement in permissible campaign activity, the employer has agreed to post the notice attached to this decision on all employer and union bulletin boards at its Sunderland Avenue location for a period of thirty (30) consecutive days.
Under the circumstances presented here, we decline to order any additional remedy. In particular we decline to find that the conduct of Swartz' managers constituted an impermissible contribution to the Hoffa campaign, as there is no evidence that Swartz acted in a discriminatory manner to permit unimpeded parking lot access to Hoffa supporters while denying it to the Leedham campaign.
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 Supervisor 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 the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2005 ESD 35
OFFICE OF THE ELECTION SUPERVISOR
for the INTERNATIONAL BROTHERHOOD OF TEAMSTERS
1725 K Street, N.W., Suite 1400
Washington, D.C. 20006
202-429-8683
888-IBT-2006 Toll Free
202-429-0030 Facsimile
www.ibtvote.org
RICHARD W. MARK
Election Supervisor
NOTICE TO ALL TEAMSTER MEMBERS EMPLOYED AT SWARTZ MOVING COMPANY
The Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules") guarantee members the rights to support or oppose any candidate or slate of candidates and to aid or campaign for any candidate or slate of candidates.
In particular, the Rules permit IBT members to campaign in company parking lots where employees park their cars, regardless of whether those campaigners are employees of Swartz Moving Company.
It is a violation of the Rules to interfere with these rights and the rights of other members to receive, hear or view such campaign advocacy. In particular, it is a violation of the Rules to deny parking lot access to or otherwise interfere with members exercising these campaign rights.
The Election Supervisor will not permit any violation of the Rules.
_____________________________________
Richard W. Mark, Esq.
Election Supervisor
Dated: December 14, 2005
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters, and must remain posted on this bulletin board for a period of thirty (30) consecutive days.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski, Esq.
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
Email: pszymanski@teamster.org
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334-1567
Email: braymond@fwslaw.com
Barbara Harvey, Esq
Penobscot Building, Suite 3060
645 Griswold
Detroit, MI 48226
Email: barbaraharvey@comcast.net
David Hoffa
c/o Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48334
Email: david@hoffapllc.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
Email: jchomsky@igc.org
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
Email: saostrach@gmail.com
Steve Allen
Swartz Moving Co.
9611 NE Sunderland Avenue
Portland, OR 97211
Roger Niedermeyer
Teamsters Local Union 162
1850 NE 162nd Avenue
Portland, OR 97230
team162@teamsters162.com
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
cmm@wmblaw.net
Jeffrey J. Ellison
510 Highland Avenue, #325
Milford, MI 48381
Email: EllisonEsq@aol.com