IN RE: LEEDHAM CAMPAIGN, Protestor.
Protest Decision 2006 ESD 256
Issued: May 30, 2006
OES Case No. P-06-259-041006-NE
The 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"). The protest asserted that Sysco, an employer of IBT members, violated the Rules by barring access by IBT members Chris Roos and others to the employee parking lot at its Halfmoon, New York warehouse, caused the arrest of Roos on a charge of criminal trespass, and refused to withdraw or otherwise curtail its consent to the prosecution of the charge.
Election Supervisor representatives David Reilly and Maureen Geraghty investigated this protest.
Findings of Fact
Chris Roos is a member and secretary-treasurer of IBT Local Union 1035 and a candidate for the International office of East Region Vice President on the Tom Leedham Strong Contracts Good Pensions slate.
On April 7, 2006, Roos and Tom Schlutow drove to the Sysco Halfmoon facility for the purpose of campaigning in support of Schlutow's delegate candidacy in Local Union 294's delegate and alternate delegate election. The Halfmoon facility is within the IBT's East Region. Sysco maintains a parking lot for use by its employees at that facility, including employees who are members of IBT Local Union 294. Roos and Schlutow entered the employee parking lot and began shaking hands with and distributing leaflets to IBT members arriving for work. Shortly after entering the Sysco employee parking lot, Roos and Schlutow were confronted by a security guard who directed them to leave the premises. Citing their rights under the Rules to campaign in employee parking lots, Roos and Schlutow declined to leave. The security guard then telephoned the police. Three sheriff's deputies and one state trooper responded to the scene. A deputy spoke with the security guard and then arrested Roos, handcuffed him, and placed him in the rear seat of a marked police vehicle. As he was being arrested, Roos directed Schlutow to leave the premises; Schlutow did so and was not arrested. Roos was held, handcuffed, in the rear of the police vehicle for approximately 40 minutes. During this period, Roos estimates that some 30 to 40 Sysco employees arrived for work and entered the warehouse through the employee parking lot. Roos was then issued an appearance ticket directing him to appear in the Town Court of the Town of Halfmoon to answer a charge of trespass, said to be "in violation of Section 140.05 of the Penal law of the State of New York." The Accusatory Instrument issued to Roos in connection with the ticket alleges that he committed "trespass when he knowingly enter[ed] and remain[ed] unlawfully in or upon premises."
At the request of Roos' counsel, the Town Court matter was continued to May 23. On May 19, Sysco requested that the prosecution be discontinued with prejudice. On May 23, the charge was dismissed.
Analysis
Article VII, Section 12(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 12(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. The United States District Court for the Southern District of New York entered an order approving the Rules, including the provision on access to employer parking lots, on November 9, 2005.
These rights - to distribute campaign literature in employer parking lots and for IBT members to receive campaign literature in employer parking lots - are available only in connection with campaigning during the 2005-2006 International Union delegate and Officer election conducted pursuant to the Consent Order entered in United States v. IBT. The right to engage in such campaigning applies, and creates a privileged access, "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 12(e) "are not available to an employee on working time, [and] may not be exercised among employees who are on working time …" In addition, 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 12(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."
These limited access 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." Article VII, Section 12(e). An employer, however, may rebut this presumption "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 … [, and] may seek relief from the Election Supervisor 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.
We find that Sysco violated these provisions of the Rules here. Sysco's denial of parking lot access is undisputed. Nor is there any evidence that the presence of Roos and Schlutow in the Sysco employee parking lot interfered with or disrupted Sysco's operations in any way.
Further, Sysco compounded the matter by initiating and maintaining a criminal prosecution of Roos. Such conduct, undertaken to preserve a property right, damages the overriding goal of the Consent Order.
We will not tolerate such violation of the Rules.
For the foregoing reasons, we GRANT the protest.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
We direct Sysco to cease and desist from denying, interfering with, or otherwise impeding the limited employee parking lot access granted by Article VII, Section 12(e) of the Rules, or requesting or condoning action by private security or public law enforcement personnel to deny, interfere with, or otherwise impede such access. We further order Sysco affirmatively to direct its security personnel, whether employed directly by Sysco or by a contractor, not to violate Article VII, Section 12(e) of the Rules. Finally, we order Sysco to post at its Halfmoon, New York facility the notice attached to this decision.
Because Sysco has withdrawn its consent to the prosecution of Roos and that charge has been dismissed with prejudice, we order no further relief with respect to the April 7 incident in Halfmoon, New York.
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
885 Third Avenue, Suite 1000
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
2006 ESD 256
[OES letterhead]
NOTICE TO ALL IBT MEMBERS FROM THE ELECTION SUPERVISOR FOR THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS
The Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules") grant to candidates for delegate or alternate delegate and any member of the candidate's Local Union the right to distribute literature and/or otherwise solicit support in connection with such candidacy in any employer parking lot used by that Local Union's members to park their vehicles in connection with their employment. The Rules further grant to candidates for International office and any Union member within the regional area in which said candidate is seeking office the right to 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. IBT members have the reciprocal right under the Rules to be so solicited and to receive literature offered for distribution.
The Election Supervisor has determined that Sysco, an employer of IBT members, violated this provision of the Rules on April 7, 2006, by causing the arrest and the initiation of a criminal trespass prosecution of Chris Roos, a candidate for International office, for exercising his right of limited access to employee parking lots for campaign purposes. Sysco subsequently withdrew its prosecution of Roos and the charge against Roos has been dismissed.
The Election Supervisor will not tolerate such a violation of the Rules.
The Election Supervisor has ordered Sysco to cease and desist from such a violation of the Rules and to post this notice at its Halfmoon, New York facility.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with Richard W. Mark, Election Supervisor, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, telephone: 888-IBT-2006, fax: 202-454-1501, email: electionsupervisor@ibtvote.org.
__________________________________________
Richard W. Mark
Election Supervisor for the
International Brotherhood of Teamsters
Dated:
This notice has been approved by IBT Election Supervisor Richard W. Mark and must remain posted for thirty (30) consecutive days.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, #2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Chris Roos, Secretary-Treasurer
IBT Local Union 1035
400 Chapel Road, 2-B
South Windsor, CT 06074
Tom Schlutow
4 Kim Drive
Loudonville, NY 12211
Charles Munn, Vice President
Labor Relations
Sysco Corporation
1390 Enclave Parkway
Houston, TX 77077
Nicholas D'Ambrosio, Jr.
Bond, Schoeneck, & King, PLLC
11 Washington Avenue
Albany, NY 12210
John Bulgaro, President
IBT Local Union 294
890 Third Street
Albany, NY 12206
David F. Reilly, Esq.
22 West Main Street
North Kingston, RI 02852
dreilly@rooltd.com
Maureen Geraghty
Geraghty Law Firm
426 Old Salem Road
Winston-Salem, NC 27101
mg@geraghtylawfirm.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com