Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: JAMES MOTTY,                            )           Protest Decision 2017 ESD 365

                                                                        )           Issued: January 13, 2017

            Protestor.                                           )           OES Case No. P-316-070516-FW     

____________________________________)                      

James Motty, member of Local Union 572, 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 that the employer Costco impermissibly interfered with his campaign rights under the Rules.

            Election Supervisor representative Michael Miller investigated this protest.

Findings of Fact and Analysis

Costco operates retail warehouse stores where Costco members may shop for consumer goods and groceries.  Six of these retail warehouse stores are under the jurisdiction of Local Union 572 in southern California.  Protestor Motty, a member of that local union, sought to campaign among local union members employed at those warehouse stores in support of the Teamsters United slate of candidates for International office.  He filed this protest alleging interference by Costco management with his campaign effort.

A previous protest decision addressed an earlier effort of Motty to campaign at Costco retail warehouse stores on behalf of a slate of candidates competing in Local Union 572’s delegates and alternate delegates election.  In Members With Middleton, Halstead, & Teamsters United 572, 2016 ESD 252 (June 16, 2016), we decided several protests concerning Motty’s campaign activity inside employee breakrooms at four of the Costco warehouses under that local union’s jurisdiction, namely Costco-Irvine, Costco-Fountain Valley, Costco-Yorba Linda, and Costco-Norwalk.  We found in that decision that Costco warehouses are not open to the public but instead are limited to persons who are Costco members.  We further found that Motty was a Costco member, which allowed him access to all areas of every store that were open to customers.  Motty, however, sought access to employee breakrooms at those warehouse stores, which generally are not open to Costco customers.  Investigation showed in that case that Motty asked permission of the store manager or floor supervisor at each store to campaign in the employee breakroom to Costco employees who were on break, and each time the request was granted.  We noted that there appeared to be some confusion among the managers from whom Motty sought permission as to the purpose of his campaigning.  Motty told our representative that he informed the managers that he was campaigning in a local union election, but the managers our representative interviewed said they believed Motty was campaigning for ratification of a collective bargaining agreement that Costco and Local Union 572 negotiated.  On the facts presented in that case, we found that Motty’s right to campaign in the breakrooms was authorized by Article VII, Section 12(d) because it was derived from employer policy, in the form of permission expressly granted by a manager.  We denied the protests filed by the Members With Middleton slate, which contended that Motty as a union member not employed by Costco had no right to campaign in Costco employee breakrooms.  We concluded to the contrary that Motty was granted permission, noting that the Members With Middleton slate could allege a violation of Article VII, Section 12(d) only by asserting that Costco had granted Motty campaign access while denying it to Members With Middleton, an allegation Members With Middleton could not make because it had not requested similar access.

The instant protest arose when Motty sought further campaign access to the employee breakrooms in many of the same Costco retail warehouse stores in the aftermath of the Local Union 572 delegates and alternate delegates election, this time to campaign on behalf of the Teamsters United slate of candidates for International office.  He entered the Costco-Norwalk warehouse store on July 3, 2016 pursuant to his right as a Costco member and, as he had previously, asked store management there for permission to campaign in the employee breakroom.  On this occasion, however, store management denied Motty permission, telling him that campaigning in the employee breakroom was not permitted.  The manager directed Motty to the parking lot area adjacent to the rear entrance of the warehouse store that employees use to enter and exit the facility for work.  After being rebuffed at Costco-Norwalk, Motty did not seek permission to campaign in the employee breakroom of any other Costco warehouse store under Local Union 572’s jurisdiction.  Instead, he filed this protest.

Costco’s national labor relations official told our representative that Costco follows a uniform policy of prohibiting non-employees from its employee breakrooms.  An exception to that policy exists at unionized Costco warehouse stores for union business representatives, who may enter the breakroom to post materials on the union bulletin boards there and to conduct union business.  However, prior to Motty’s experience detailed in the previous protest decision, Costco had not permitted non-employees to enter employee breakrooms to campaign in a union election.  The labor relations official explained that the store managers who granted Motty permission previously believed that he was there to perform specific union business of informing members of the details of a tentative collective bargaining agreement between Costco and Local Union 572 and of the local union’s recommendation that the tentative agreement be ratified by the membership.  Had they recognized that Motty’s purpose was to campaign in an internal union election, they would have denied his request.

We held in the previous protest decision concerning these Costco warehouse stores that Motty had the pre-existing right under Article VII, Section 12(d) to campaign in employee breakrooms.  The sole basis for that holding was the express permission Motty received from store management to campaign.  Although investigation at the time of the original protest decision and again here suggested that the permission was granted as the result of a misunderstanding of the purpose for which the access was requested, we were unwilling to find that Motty violated the Rules by campaigning in an area to which he had requested and been granted access.  Given subsequent statements from Costco management that the access was granted improperly, we conclude that the statement of the Costco-Norwalk store manager denying Motty permission to campaign in the employee breakroom at that warehouse store did not violate the Rules.  We decline to hold that the campaign access Motty was expressly granted previously, albeit improvidently and the result of a misunderstanding, established a pre-existing right to similar access in the future.[1]  Accordingly, we DENY the protest.

We note that, as with every other employer that provides parking to its employees, Costco employees at the six stores under Local Union 572’s jurisdiction could be canvassed by campaigners in employee parking lots before and after their scheduled shifts, pursuant to Article VII, Section 12(e) of the Rules.  Costco as a retail establishment varies somewhat from most employers subject to the Rules, in that the parking it provides to employees is in the same broad parking lot used by its customer-members.  However, Costco policies dictate that Costco employees park their vehicles on the outer perimeter of these lots in areas closer to the rear employee entrances to its facilities.  During the course of investigation of this protest, our representative obtained detailed maps of the portions of the parking lots in which employees were to park and shared it with Motty, both campaigns and the local union.  In addition, Motty and both campaigns were informed of the doors at the rear of Costco stores that Costco requires its employees to use to enter and exit the workplace.  As such, we conclude that canvassers had the campaign access to Costco employees that the Rules provide.

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 365

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