Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: MIKE MORALES, SR.,                 )           Protest Decision 2021 ESD 77

      and JOE MEDINA,                                )           Issued: March 10, 2021

                                                            )           OES Case Nos. P-096-022821-FW

      Protestors.                                               )                       & P-097-030321-FW

____________________________________)

Mike Morales, Sr., and Joe Medina, members of Local Union 848, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Michael Ibarra violated the Rules on February 28, 2021 by campaigning in employee breakrooms at Albertson’s/Boxford Foods in Commerce CA.

A separate protest was filed in Case No. P-097-030321-FW, alleging that Ibarra impermissibly campaigned in the employee lunchroom at Los Angeles Regional Food Bank on March 1, 2021.

Election Supervisor representative Michael Miller  investigated these protests.  They were consolidated for decision.

Findings of Fact

            Local Union 848 will elect 9 delegates and 5 alternate delegates to the IBT convention.  Respondent Ibarra is an independent candidate for delegate.  He is competing against a full slate of candidates.

            On the protest concerning activity at Boxford Foods, Ibarra told our investigator that he went to the facility at about 6 p.m. on Sunday, February 28, 2021, presented himself to the security guard at the entrance, told him he was a delegate candidate in Local Union 848’s delegates and alternate delegates election and was there to campaign, was subjected to a temperature check, and was permitted entry.  Ibarra stated he then went to the employee parking lot to campaign.  He said he encountered very few employees in the parking lot, so he approached a driver sitting in a truck on the lot and asked where he could find members of Local Union 848.  He said the driver told him to go inside to the breakroom, which he did.  Ibarra said he encountered 4 to 5 employees in the breakroom, gave them flyers, and left flyers on tables in the breakroom for other employees using that room to see.  He then left the premises.  Ibarra stated that he did not campaign in work areas or to employees on work time, nor did anyone tell him he could not be there or tell him to leave.  Ibarra told our investigator that he assumed that other candidates used the breakroom to campaign, but he had no evidence – such as seeing campaign material from other candidates – to substantiate that assumption.

            Protestor Medina told our investigator that he was on-duty, sitting in his truck awaiting a work assignment when Ibarra approached him with a stack of campaign flyers.  According to Medina, Ibarra asked for his support in the delegate election and asked where the breakrooms were in the buildings where Local Union 848 members work.[1]  Medina told him, and then watched Ibarra enter and exit multiple buildings.  In Medina’s 3 years employed there, he had not seen the breakrooms used for campaigning. 

            Protestor Morales saw Ibarra close to 8 p.m. on February 28, going from building to building at the facility with a stack of flyers.  Morales did not interact with or disturb Ibarra because he did not know who he was or what he was up to until after he left.  Morales then saw a campaign flyer displaying Ibarra’s photo and understood Ibarra had been campaigning.  Morales took photos of the flyers on breakroom tables, which he provided to our investigator.  Morales stated he has seen no campaigning inside buildings at Boxford in his 9 years employed there.

            The Boxford plant manager told our investigator he knew nothing of Ibarra’s presence at the plant, as no report had been filed and he received no information from supervision about it.  He stated that longstanding company policy limits campaigning to employee parking lots only.  The policy is predicated in part on the company’s liability insurance and covid-19 precautions policy.  The Boxford HR director echoed the statements of the plant manager, telling our investigator that Boxford maintains a strict “no admittance” policy to its buildings for non-employees, citing security, liability, and covid-19 reasons.

            Early the next day, Ibarra campaigned at the Los Angeles Regional Food Bank.  Ibarra told our investigator that he introduced himself to the security gate guard, explained why he was there, had his temperature checked, and was permitted entry by the guard and a manager the guard called to allow him inside.  Ibarra went to the employee parking lot and found no one there.  He went inside, located what he thought was the breakroom, and distributed flyers to no more than 10 people.  Ibarra said he had never been to that facility before and did not know any of the people he interacted with.  He said he did not interact with anyone at their workstations or on the shop floor. He said he stayed only a few minutes and then left. 

            An 11-year Food Bank employee told our investigator that Ibarra approached him to ask where the breakroom was.  The employee told him, and Ibarra went inside the building.  Later, the employee went inside the plant and found Ibarra’s flyers in employee mailboxes, in workspaces, and pinned to the outside of the locked official union bulletin board.  This was the first instance in this employee’s tenure that he had seen evidence of campaign activity in the building.

            Our investigator was unable to interview any security or management representative at the Los Angeles Regional Food Bank.

Analysis

The Rules provide only two forms of access for non-employees to employer premises:  (1) under the “parking lot rule,” Article VII, Section 12(e), which creates a limited right for non-employees to campaign in parking lots where members park their cars; and (2) to other parts of employer premises if non-employees are expressly granted such access or have had past access under a “preexisting” right or practice.  Gasman, P-966 (October 14, 1996); Thomas, P-922 (September 30, 1996).  Where a past practice exists, Article VII, Section 12(d) declares that “[n]o restrictions shall be placed upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature … or engage in similar activities on employer … premises.  Such facilities and opportunities shall be made available to all candidates and members on a non-discriminatory basis.”   To find such a past practice, “the evidence must show knowledge and toleration on the part of the employer.  Evidence of unauthorized and unknown incidents is insufficient.”  McDonald, P-1014 (October 15, 1996); Batham, 1996 EAM 225 (August 16, 1996) (requiring “concrete evidence that the employer representatives at the site knew about, and permitted,” the activity alleged to constitute past practice).

On the evidence in these cases, we find no pre-existing right to campaign inside the buildings at Boxford or the Los Angeles Regional Food Bank.  Respondent Ibarra does not claim such a past practice.  He had never campaigned at either facility and, because this is his first election in Local Union 848[2], he had no information to substantiate such a claim.  With respect to Boxford, he told our investigator he “assumed” without evidence that campaigning had occurred in the breakroom there.  An assumption is insufficient, by itself, to establish a past practice.  Aside from Ibarra, the evidence presented by the protestors and management officials at Boxford negate a pre-existing right to campaign there, as does the evidence presented by the witness at the Food Bank.

Nor can Ibarra rely on being admitted to the facility by the security guard as granting him free rein to enter the buildings.  At each location, the guard controlled access to the parking lot and admitted Ibarra to that lot.  This is not the situation presented in Zimmerman, 2001 ESD 542 (November 6, 2001), where a campaigner was admitted to various buildings by guards staffing lobby security desks, after stating her campaign purpose for entering the building.  There, Election Administrator Wertheimer held that “[p]resumptive evidence that a preexisting right to campaign inside an employer’s facility under Article VII, Section [12](d) exists where the non-employee campaigner 1) presents herself to personnel authorized to secure the facility and to bar from it non-employees, 2) seeks entry for the express purpose of distributing campaign material, and 3) is permitted entry for that purpose.  Under such circumstances of employer consent, a campaigner may reasonably conclude that a preexisting right to campaign there is in place.”  But a campaigner may not construe permission granted by a representative of management to enter a parking lot to campaign as permission to enter for a similar purpose work buildings within the secure perimeter.  Here, Ibarra went beyond the permission granted to enter the employee parking lot and improperly treated that as permission to enter work buildings.  Only express permission of an employer could allow such entry (and any such permission could not discriminate among candidates).  Nor may a campaigner rely on a rank-and-file truck driver giving directions to a breakroom as the employer granting permission to access that breakroom.  Thus, Ibarra violated the Rules by entering the work buildings of Boxford and Los Angeles Regional Food Bank because he had no right to campaign within those buildings, whether based on past practice or the express permission of a management representative.

Accordingly, we GRANT the protests.

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.  “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.”  Hailstone & Martinez, 10 EAM 7 (September 14, 2010).

            We order Ibarra to cease and desist from campaigning inside employer buildings, absent a pre-existing right or express permission of the employer to do so.

            The ballot count in Local Union 848’s delegates and alternate delegates election is scheduled for March 11, 2021.  We reserve whether to order further remedy pending a determination as to whether Ibarra’s conduct may have affected the results of the election.

            A remedial order of the Election Supervisor is immediately effective, unless stayed.  Lopez, 96 EAM 73 (February 13, 1996).

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.  Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i).  All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor.  Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Barbara Jones

Election Appeals Master

IBTappealsmaster@bracewell.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, all within the time prescribed above.  Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision.  A copy of the protest must accompany the request for hearing.

                                                                  Richard W. Mark

                                                                  Election Supervisor

cc:        Barbara Jones

            2021 ESD 77

DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

braymond@teamster.org

Edward Gleason

egleason@gleasonlawdc.com

Patrick Szymanski

szymanskip@me.com

Will Bloom

wbloom@dsgchicago.com

Tom Geoghegan

tgeoghegan@dsgchicago.com

Rob Colone

rmcolone@hotmail.com

Barbara Harvey

blmharvey@sbcglobal.net

Kevin Moore

Mooregp2021@gmail.com

F.C. “Chris” Silvera

fitzverity@aol.com

Fred Zuckerman

fredzuckerman@aol.com

Ken Paff

Teamsters for a Democratic Union

ken@tdu.org

Mike Morales, Sr.

maddogtruckerdad@yahoo.com

Joe Medina

Joemedina5413@att.net

Michael Ibarra

calhunter13@yahoo.com

Eric Tate

Tate32@hotmail.com

Michael Miller

Miller.michael.j@verizon.net

Deborah Schaaf

dschaaf@ibtvote.org

Jeffrey Ellison

EllisonEsq@gmail.com