Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: FRED ZUCKERMAN,                  )           Protest Decision 2017 ESD 359

                                                                        )           Issued: January 2, 2017

            Protestor.                                           )           OES Case No. P-093-011216-FW     

____________________________________)                      

Fred Zuckerman, candidate for International office on the Teamsters United slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged interference with parking lot campaign rights and impermissible surveillance at Republic Waste in Long Beach, CA.

            Election Supervisor representative Michael Miller investigated this protest.

Findings of Fact and Analysis

The protest alleged that on Monday, January 11, 2016, local management officials of Republic Waste interrupted and interfered with campaign activity of protestor Zuckerman and several supporters of the Teamsters United slate at the Long Beach facility.  The protest further alleged that Mauricio Thomas, a member of Local Union 396 employed at the worksite who also served as a union steward there, surveilled the campaign activity in violation of the Rules.

Protestor Zuckerman told our representative that he arrived at Republic – Long Beach with several Teamsters United supporters around 4 p.m. and proceeded directly to the parking lot where employees parked their vehicles.  He and the other campaigners actively canvassed the many arriving and departing employees at length without interruption or interference for considerable time after they arrived.  Zuckerman stated that at about 5:30 p.m., he noticed Mauricio Thomas standing in the employer’s work walkway area.  Zuckerman recognized him from a previous protest Zuckerman filed.  According to Zuckerman, Thomas appeared to be watching their activities.  Zuckerman said that Thomas remained at that spot for a lengthy period but did not have a camera or a notepad and never appeared to be on the phone speaking with anyone about the campaign activities, nor did Thomas appear to be speaking with anyone at the worksite.  After a while, Zuckerman noticed that Thomas was gone; Zuckerman assumed he returned to his job at the worksite.

Shortly after 5:30 p.m., Republic operational managers Lupe Vazquez and Juan Rodriguez approached Zuckerman and told him he had to leave the property.  Zuckerman protested, telling them he had every right to be there according to the election rules.  Vazquez and Rodriguez retreated a distance away to a telephone pole and appeared to be conferring with each other.  About twenty minutes later, according to Zuckerman, the two approached him again, stating that he had to leave the property or they would call the police.  Again, Zuckerman refused to leave, whereupon Vazquez and Rodriguez retreated once more for a short period.  They approached him a third time and, according to Zuckerman, said, “Well, we’re going to allow you to stay this time, but next time you need to give us advance notice” if he intended to come on company property.  Zuckerman ignored their statement and continued to campaign, passing out leaflets to members coming and going for another one and a half hours.  Zuckerman said his group left the worksite between 7:00 and 8:00 p.m., without further incident or interruption.  He said they canvassed more than one hundred members that day. 

Jose Lizarraga, a member of Local Union 396 and an off-duty employee of Republic Waste campaigning with Zuckerman, corroborated Zuckerman in every significant detail, stating that the canvassers arrived at the employee parking lot unannounced on January 11 at about 4 p.m. and campaigned without interruption or interference until they were approached by Vazquez and Rodriguez at about 5:30 p.m.  Lizarraga stated that Vazquez and Rodriguez told Zuckerman the group had to leave, and Zuckerman replied that the group had the right to be there to campaign and would not leave.  Vazquez and Rodriguez withdrew away from the area, and twenty minutes later approached the group again with the same message, this time adding that they would call the police.  Again, Zuckerman told the two that they would not leave and would continue to campaign.  Vazquez and Rodriguez withdrew a second time, this time according to Lizarraga inside the building.  Some twenty minutes later they emerged and approached the group a third time to state that the group could stay “this one time only” but that they would have to stop “harassing the drivers.”  This statement brought a sharp rebuke from Zuckerman, denying that the canvassers were harassing anyone, before he turned to resume campaigning.  Vazquez and Rodriguez withdrew a third time and did not approach the group again.  Lizarraga stated the campaigners left the worksite after shift change was completed, around 7:30 p.m.  Lizarraga told our representative that the group was successful in canvassing about eighty percent of the total number of members who arrived and left that day during shift change.

Operational manager Lupe Vazquez told our representative that, on January 12, he was alerted by Juan Rodriguez, another operational manager, to five or six men congregating on the parking lot.  He and Rodriguez approached the group to investigate.  Vazquez stated he identified Lizarraga and Manuel Garcia as Republic drivers but did not recognize the other men.  The group, according to Vazquez, appeared to be engaged in some kind of political activity.  Vazquez said that Rodriguez told the group, “You can’t be here,” and directed them to leave.  Rodriguez asked the men if they had requested permission to be there.  One of them said that they did not need anyone’s permission to campaign on the parking lot, nor did they need to give any kind of advance notice to the company.  At that point Rodriguez and Vazquez withdrew, agreeing “to make some phone calls.”  They checked with Vivian Brown in the on-site HR office, who told them the group was not allowed to be on the property without advance permission, and that they would have to leave.  On this advice, Rodriguez and Vazquez went back to the men and told them again to leave, saying that they had no prior permission from the company’s HR office.  At that point, according to Vazquez, the group leader became very upset and told them he was not going to leave because he did not have to.  Rodriguez then got a call from a senior executive named Cole, who told them, “Let them go ahead and stay.”  Rodriguez then relayed that message to the group leader, who acted stubbornly and “just stayed on doing what he had been doing” before Rodriguez and Vazquez’s interruptions.  Vazquez told our representative he felt the group’s leader had an unjustifiably strong and overly defensive reaction when asked to leave, and that Vazquez and Rodriguez were only trying to figure out how to handle the situation.  They had no malicious intent to harass the group.

Juan Rodriguez, the other operational manager, told our representative that on January 11 he was on a routine walk around the property when he noticed a group of about ten to fifteen men gathered together at the employee parking lot, near the walkway where employees go to and from their clock-in post.  Rodriguez suspected something was not right because he had not seen many of these men before, so he notified his fellow operational manager, Vazquez.  In the group of men, Rodriguez recognized Lizarraga as one of the facility’s rank and file drivers.  Together Rodriguez and Vazquez approached the group to ask them who they were and what they were doing there. The men said that they were campaigning and had a right to use the employee parking lot to canvass workers and distribute flyers.  Rodriguez learned then, in speaking with the group’s leader, that he was Fred Zuckerman, a candidate for International office.  Rodriguez and Vazquez stepped back and said they would do some checking by “making a few phone calls.”  Rodriguez said he called Vivian Brown, the on-site HR official, who said she would make more phone calls to find out what to do.  He said she called them back and said they would have to tell the group of campaigners that they would have to leave.  At this, Rodriguez and Vazquez went back to Zuckerman’s group to relay this message, whereupon Zuckerman became vocally excited and engaged them in a loud tirade, with “colorful” language, showing them the OES rule provision which stipulated their right to campaign on employee parking lots.  Rodriguez and Vazquez retreated again, so that Rodriguez could look up the URL to which Zuckerman had referred them.  At about that point, Rodriguez received a phone call from the company’s regional (or perhaps national, he was not sure) HR director Robert Cole, a vice-president from the Phoenix office, who told Rodriguez and Vazquez that “it would be okay for them to be there this one time, but in the future they had to agree to not harass the employees, be sure that any workers they solicited or used to help them were not on work time, and called the company in advance” so that adequate preparations could be made to accommodate them.  According to Rodriguez , Zuckerman “huffed” at these conditions – in fact at one pointed “screamed” that this was all unnecessary – and would not quiet down.  He proceeded to turn his back on them, and continued to canvass the workers coming and going. In a follow-up interview with our representative, Rodriguez conceded he told Zuckerman’s group during the first encounter they would have to vacate the premises, and, after talking with Brown, came back a second time to tell them they had to leave or else he would call the police to have them removed for trespassing.  It was only on their third encounter, after he had checked the OES URL and spoken with Cole, that Rodriguez told them they could stay.  Rodriguez acknowledged that when he talked with them this last time, he added the caveat that this was a one-time only exception, and that next time Zuckerman and his group would have to give the company some kind of advance notice.  He explained that these were his directives from Cole.

The protest in Teamsters United, 2015 ESD 25 (August 28, 2015), concerned parking lot access by Teamsters United canvassers at Republic’s Long Beach and Gardena CA facilities on August 4 and 6, 2015, respectively.  At each location the canvassers were barred from access, despite presenting the Rules provision and our Advisory on parking lot access.  We deemed the Rules violation resolved, based on the following:

            On August 11, 2015, Stuart Newman, counsel for Republic, acknowledged the court order enforcing the Rules generally and the parking lot access provision in particular.  Newman stated that “our management has been instructed to permit the access ordered by Judge Preska.”

            On the instant protest, counsel Newman wrote the following:

Mr. Zuckerman and his colleagues were on the employee parking lot during regular work hours.  Unfortunately, local Operations Managers Juan Rodriguez and Guadalupe Vazquez did not know about Judge Preska’s Order.  Moreover, in the interim between August 2015 and January 11, 2016, the managers to whom Messrs. Rodriguez and Vazquez report changed.

The incident occurred approximately between 5:30 p.m. to 6 p.m. Pacific time.  Mr. Rodriguez sought advice from the Employer’s Labor Relations department.  Because of the lateness of the day, it took some time to get proper direction to Mr. Rodriguez.  After receiving that instruction, Mr. Rodriguez went back to Mr. Zuckerman and assured him he could remain on the property.  At no time did my client’s communications cause Mr. Zuckerman to leave its property.

The Employer has no interest whatsoever in interfering with campaigning pursuant to the Court’s Order.  In this situation, we had mid-range managers unfamiliar with the rules.  We want to correct this problem going forward.

            On these facts, we deem the protest alleging interference in campaign rights by Republic’s operational managers RESOLVED.  We do so for the following reasons.  First, the Teamsters United campaigners enjoyed substantial access at the Long Beach facility on January 11, campaigning from the time of their arrival at 4 p.m. to their voluntary departure around 7:30 p.m., reaching some one hundred members, which represented a large majority of those who arrived or departed the facility during that span.  Although the managers instructed the campaigners twice that they had to leave the premises, the campaigners correctly resisted those instructions and acted in accord with their rights.  The managers, unaware of the Rules’ requirements until the campaigners directed their attention to them, properly belayed their order to leave until they could seek advice.  Upper management countermanded the instruction to leave, and the managers reported to the campaigners that they could remain.  The campaigners therefore were able to exercise their rights for so long as they wished that day.  Although the employer’s counsel proposed in resolution of the instant protest a requirement that campaigners give advance notice of their intent to campaign on employer premises, we had deemed a previous protest at the same worksite resolved on the basis of the employer’s promise “to permit the access ordered by Judge Preska,” which does not contain an “advance notice” requirement.  Article VII, Section 12(e) of the Rules permits “[a]n employer seeking to deny access to Union members in an employee parking lot [to] seek relief from the Election Supervisor at any time,” but such request for relief must be based on a substantial showing that permitting access materially interferes with the employer’s normal business activities or that access is neither necessary nor appropriate to the meaningful exercise of democratic rights.  The employer did neither here, and we therefore had no basis for granting the advance notice requirement the employer sought.  The activity that was the subject of this protest occurred in January 2016, and we received no further reports of interference with parking lot campaign rights at Republic worksites thereafter.  Accordingly, we are persuaded both that the employer accepted its obligation to permit campaign activity in its parking lots and that advance notice of campaigning was not essential to its decision to do so.

            With respect to the portion of the protest alleging that Mauricio Thomas surveilled or otherwise interfered with the campaign activity, we DENY the protest.  In Teamsters United, 2015 ESD 27 (August 28, 2015), we found that Thomas actively participated with company management in interfering with campaign rights and impermissibly surveilled the activity.  We ordered him to cease and desist from further activity of this nature.  Here, Thomas observed the campaign activity while working but did not speak with company management about it or encourage them to bar the campaigners from the premises.  Further, to the extent Thomas watched some of the activity, he did so from a distance and a location in which he worked.  Accordingly, we find that he did not violate the Rules or our cease and desist order.

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

            2017 ESD 359

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