Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: MEMBERS WITH                                     )           Protest Decision 2016 ESD 252

MIDDLETON,                                  )           Issued: June 16, 2016

FRANK HALSTEAD, &                 )           OES Case Nos. P-290-052216-FW,  

            TEAMSTERS UNITED 572,          )           P-291-052216-FW, P-292-052316-FW,

                                                                        )           P-293-052416-FW, P-294-052416-FW,

            Protestors.                                          )           & P-295-052416-FW

____________________________________)

Members With Middleton, a slate of candidates in Local Union 572’s delegates election, filed four pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protests alleged impermissible campaign access at Costco stores and tampering with an official notice at two by a supporter of the Teamsters United 572 slate. 

Frank Halstead, member and delegate candidate on the Teamsters United 572 slate that opposed the Members With Middleton slate, filed a pre-election protest alleging that Local Union 572 failed or refused to post notice of the rerun election on the union bulletin board at the Costco store in Irvine, CA.  The Teamsters United 572 slate alleged that Costco interfered with parking lot campaign access at the Costco-Irvine store. 

            Election Supervisor representatives Michael Miller and Deborah Schaaf investigated these protests.  They were consolidated for decision.

Findings of Fact and Analysis

            In Halstead, 2016 ESD 166 (April 8, 2016), we found serious violations of the Rules committed during Local Union 572’s original delegates and alternate delegates election and ordered a rerun of that election.  We ordered the local union to post a notice on all worksite bulletin boards announcing the rerun election and the Rules violations that had prompted it; our order also required the local union to mail the notice to all members.  Election Appeals Master Roberts affirmed the decision.  2016 EAM 16 (April 21, 2016).  

Ballots were mailed in the rerun election on May 3, 2016.  The Members With Middleton slate (MWM) filed two protests on May 22 concerning campaign conduct at Costco-Irvine.  The first, Case No. P-290-052216-FW, alleged that James Motty, a supporter of Teamsters United 572, violated the Rules on May 21 by campaigning inside the Costco-Irvine store and inside the employee breakroom there.  The second, Case No. P-291-052216-FW, alleged that Motty impermissibly removed the OES notice of rerun election from the locked, glass-enclosed union bulletin board in the employee breakroom at that location.

Halstead filed a protest in Case No. P-292-052316-FW alleging that Local Union 572 had failed or refused to post the OES notice of rerun election on the union bulletin board at Costco-Irvine.

Teamsters United 572 filed a protest in Case No. P-295-052416-FW alleging that Costco management interfered with Motty’s right to campaign in the parking lot at Costco-Irvine.

MWM filed two additional protests concerning campaign conduct at the Costco store in Fountain Valley, CA.  The first, Case No. P-293-052416-FW, alleged that Motty campaigned in support of Teamsters United 572 inside that store and inside the employee breakroom there.  The second, Case No. P-294-052416-FW, alleged that Motty removed the OES notice of rerun election from the union bulletin board at Costco-Fountain Valley, just as MWM alleged he had done at Costco-Irvine.

We first address the allegations of improper campaign access inside Costco stores.  Costco is a membership warehouse club that sells consumer goods and groceries.  Customers must be members in order to shop and make purchases there.

Investigation showed that Motty is a Costco member and was during the period covered by these protests.  Accordingly, he was permitted access to all areas of every store that were open to customers. 

Motty sought access to the employee breakroom at the Irvine and Fountain Valley stores, among others, in order to campaign among members of Local Union 572 employed by Costco who were on break.  Investigation showed that he requested and was granted access to the breakrooms from the store manager or a floor supervisor.  Thus, at the Irvine store, Motty asked to speak with and was presented to the floor supervisor.  Motty identified himself and told the floor supervisor he was there “to campaign for Teamsters United, a Local 572 election.”  The supervisor gave permission, and Motty entered the breakroom where he campaigned to employees who were on break.  Motty stated that after a period of time, Lori Parks entered, stated she was a union steward, and confronted Motty by saying, “I heard you are in here bad-mouthing Rick Middleton.”  Motty replied that he had nothing good to say about Middleton and was campaigning for the Halstead slate.  Parks then left the breakroom and returned a while later with Fidel Cardosa, the store manager, who told Motty he had to leave.  Cardosa said the floor supervisor misunderstood Motty to be campaigning in support of the ratification of the tentative collective bargaining agreement, and allowed him in for that purpose.  On Cardosa’s instruction to leave, Motty complied and left store at about 1:15 p.m., approximately two hours after he arrived. 

After leaving the Irvine store, Motty proceeded to the stores in Fountain Valley and Yorba Linda that same day, and Norwalk the next, at each location giving the same introduction to the store manager or floor supervisor that he had given at Irvine, and each time being granted access to the employee breakroom and campaigning there.

On these facts, we find Motty’s campaign activity in the employee breakrooms of Costco stores did not violate the Rules.  Article VII, Section 12(d) states that “no restrictions shall be placed upon 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 and members on a non-discriminatory basis.”  As we discussed in Hoffa-Hall 2016, 2015 ESD 11 (July 22, 2015), preexisting rights are derived from law, a collective bargaining agreement, employer policies, or past practice.  Rules, Definition 36.[1] 

Motty had a pre-existing right to enter the interior of Costco stores as a customer, a right he acquired by purchasing a membership that Costco sold to the general public.  Unlike most other workplaces we encounter in administering the Rules, Costco workplaces contain vast areas that are open to the public, on purchase of a membership, and Motty had access to all of these areas because he was a Costco member. 

Once inside, he spoke with the responsible management official and requested permission to enter the employee breakroom to campaign.  He was granted the access he requested.  Accordingly, his right to campaign in the breakrooms was derived from employer policy, in the form of permission expressly granted by a manager.  While Cardosa, the store manager at Irvine, claimed that the floor supervisor misunderstood what Motty’s purpose was, Motty made his request in clear terms and the supervisor granted the request.  We find no misrepresentation by Motty on the facts found here.

Finally, we note that MWM filed protests in Case Nos. P-290-052216-FW and P-293-052416-FW alleging that Motty had improper access to employee breakrooms at Irvine and Fountain Valley, respectively, without any MWM campaigner first seeking such access and being denied.  As Election Appeals Master Conboy stated in Cobb, 2001 EAM 100 (October 19, 2001),  recon. den., 2001 EAM 100(a) (October 26, 2001), “to state a viable protest, the candidate or campaigner [protesting improper campaign access by an opponent to the employer’s workplace] must affirmatively establish that he specifically requested, on reasonable notice, access and was denied.” 

Accordingly, we DENY the protests filed by MWM in Case Nos. P-290-052216-FW and P-293-052416-FW.

We turn next to the protests that allege that the OES notice of rerun election was missing from the union bulletin boards in the employee breakrooms at Irvine and Fountain Valley.  MWM filed protests in Case Nos. P-291-052216-FW and P-294-052416-FW alleging that Motty wrongfully removed the notices from the boards at both locations.  Halstead filed the protest in Case No. P-292-052316-FW alleging that notice was missing from the Irvine location because Local Union 572 failed or refused to post it there.  Investigation showed that the notice was not on the union bulletin board at Irvine on May 21, the date Motty campaigned there.  MWM claimed that Motty removed it.  Halstead alleged that this missing posting was “only the tip of an iceberg of similar violations” by the local union.

Motty told our investigator that he reviewed the bulletin board at Irvine and saw it lacked the notice of rerun election.  He also stated that he checked the boards at other Costco locations in Norwalk, Yorba Linda, and Fountain Valley and found the notice was posted on those boards.

Doug Brown is a business agent for Local Union 572 with responsibility for Costco-Irvine.  On May 21, he spoke with Cardosa, Irvine store manager, who told him that Motty had campaigned there.  Brown arrived at the store a short while after Motty left.  He inspected the breakroom where Motty was said to have campaigned, and noted the rerun notice was missing from the bulletin board.  Brown told our investigator he had posted the notice there and on other union boards for which he was responsible.  He had noted that the notices occasionally went missing from the boards, so he carried a supply in his vehicle in order to be able to repost.  He did so at the Irvine facility on May 21.  Although the boards at Irvine and other locations are glass-enclosed and equipped with locks, Brown stated that the posting requirements associated with the delegates and alternate delegates election as well as other matters involving the local union were burdensome, and he and other business agents often left the boards closed but unlocked so that postings could be made without the need for the key to any given board.  Brown surmised that some members had discovered the board at Irvine was unlocked and had removed the notice.  Brown could offer no evidence as to the person responsible for removing the notice.  There is no evidence that Motty removed the notice, and he expressly denied doing so. 

We DENY MWM’s protest in Case No. P-291-052216-FW on the grounds that there is no evidence that Motty removed the notice of rerun as Costco-Irvine..

We DENY Halstead’s protest in Case No. P-292-052316-FW that Local Union 572 failed or refused to post the notice at Costco-Irvine.  We find to the contrary that it was posted and, when the posting disappeared, was reposted promptly.  Further, all members of Local Union 572, including the members employed at Costco-Irvine received actual notice because the notice of rerun election was mailed to each member individually, diminishing to negligible significance the brief period the notice was not also posted on the Irvine board.

With respect to MWM’s protest in Case No. P-294-052416-FW that Motty removed the notice of rerun election from the Fountain Valley board, investigation showed that the notice was posted on that board at all relevant times and was not removed.  This fact was communicated to MWM’s attorney.  He responded by requesting to withdraw the protest.  Finding that withdrawal furthers the purposes of the Rules, we deem MWM’s protest in Case No. P-294-052416-FW WITHDRAWN.

We turn finally to the Teamsters United 572 protest in Case No. P-295-052416-FW, which alleged that Costco-Irvine store manager Cardosa impermissibly interfered with Motty’s parking lot campaign rights by telling him he could not campaign there.  Parking lot campaigning at Costco stores is undesirable to campaigners and management alike.  Employees may park anywhere on the perimeter of the public parking lot and enter the facility through the public entrance.  These circumstances leave campaigners seeking to leaflet arriving and departing employees with the often difficult task of distinguishing employees from customers at the public entrance to the store.  Management does not favor allowing campaign activity directed at employees to take place at the public store entrance.  Given these circumstances and at our investigator’s suggestion, Costco management agreed to permit non-employees to access the employee breakroom for a campaign purpose on a non-discriminatory basis, provided employees in the breakroom were on break and there was no disruption to or interference with work on the retail floor.  On this basis, we deem the protest by Teamsters United 572 RESOLVED.

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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2016 ESD 252

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