March 25, 1996
VIA UPS OVERNIGHT
Gordon Pace
March 25, 1996
Page 1
Gordon Pace
120-24 Erskine Place
Bronx, NY 10475
Fred Alston, Secretary-Treasurer
Teamsters Local Union 272
210 E. 86th Street, 7th Floor
New York, NY 10028
Douglas Kamm, Director of Personnel
Garage Management Corporation
124 E. 63rd Street
New York, NY 10021
Raymond G. McGuire
Kauff, McClain & McGuire
950 Third Avenue
New York, NY 10022
Gordon Pace
March 25, 1996
Page 1
Re: Election Office Case No. P-459-LU272-NYC
Gentlemen:
A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) by Gordon Pace, a member of Local Union 272 and candidate for delegate on the Rank-File Unity slate.
Mr. Pace alleges that his employer violated the Rules by issuing him a disciplinary notice for engaging in campaign activity that is permitted for local union officials and by threatening in that notice to terminate him if he continued. Mr. Pace also alleges that Local Union 272 violated the Rules by failing to notify him of the disciplinary notice and its contents, thereby putting him in jeopardy of termination.
This protest was investigated by New York City Protest Coordinator Barbara Deinhardt.
Gordon Pace
March 25, 1996
Page 1
Mr. Pace works for a parking garage management company, Garage Management Corporation (“GMC”), operating some 52 parking garages where local union members are employed. GMC employs about 273 employees who are local union members. Sometimes, only one or two employees are working per shift in a garage. On his days off, Mr. Pace has been visiting GMC garages where he does not work in order to campaign. On January 25, 1996, Mr. Pace went to such a garage and handed seven campaign flyers to an employee. He asserts that he chose a slow time, did not interfere with garage operations, and stayed only a few minutes. He parked his car where it normally would have required a ticket. However, he did not get a ticket and did not pay for parking.
Mr. Pace was seen by a supervisor. The next day, GMC issued him a disciplinary notice citing him for unauthorized access to company premises, unauthorized solicitation, and failure to pay for parking. The notice also stated: “Final warning--repeat incident or similar infraction will result in termination.” The notice recites that copies were sent to Mr. Pace and to the local union.
Mr. Pace states that he did not receive his copy. Local union procedure is to forward its copy of a disciplinary notice to the business agent for the cited employee’s garage, then the business agent talks to the employee at an appropriate time. In this case, the local union forwarded Mr. Pace’s notice to Business Agent Adrian Merced. Mr. Merced assumed that Mr. Pace had received a copy directly from GMC, intended to discuss it with Mr. Pace when he saw him, but did not do so before Mr. Pace actually learned of the notice directly from Local Union 272 Secretary-Treasurer Fred Alston.
Mr. Alston visited the garage where Mr. Pace works on February 6. He mentioned the notice to Mr. Pace to make sure that he knew about it and found that Mr. Pace did not.
Mr. Alston did not have a copy, however, which Mr. Pace ultimately requested and received by fax from GMC’s Director of Personnel Douglas Kamm on February 9.
GMC states that Mr. Pace violated personnel rules prohibiting conduct of “personal and/or outside business on company property or time” and “unauthorized solicitation on company premises (e.g., soliciting contributions, distributing literature, etc.).” GMC states that it promulgated these rules four or five years ago and gives copies to new employees. Sometime in mid-February 1996, GMC distributed copies of the rules to all employees and had employees sign for them.
Mr. Pace alleges that these rules make it impossible to reach GMC employees at garages where he does not work. The investigation reflects that GMC employees do not have regular lunch or break times, and employees on duty alone may not take any breaks. There are no employee parking lots in GMC facilities. Furthermore, the garage where Mr. Pace was disciplined for campaigning has no break room; employees on break leave the premises.
In support of his claim to campaign at these facilities, Mr. Pace states that current Secretary-Treasurer Alston made brief stops at the garages to drop off campaign literature when he ran for local union office in the past. The Election Officer’s investigation also found that members of the Pride and Power slate, on which Mr. Alston is running as a candidate for delegate, are currently using that method of campaigning.
Gordon Pace
March 25, 1996
Page 1
With respect to the local union’s understanding of company policy, Mr. Alston states that he is not aware of any GMC policy prohibiting such distribution. Furthermore, he states that he has discussed such distribution with Personnel Director Kamm, who said he would generally not have a problem with it.
GMC has made conflicting statements regarding its policy. When Protest Coordinator Deinhardt asked Mr. Kamm whether local union officials could visit garages to distribute campaign literature, he first stated that he thought they could do so under the contract provision allowing local union officials to conduct union business in garages. In a subsequent conversation with Ms. Deinhardt, however, Mr. Kamm said that he did not know if such visits would properly be “union business.” Mr. Kamm also stated that he was not aware that anyone had ever asked permission to solicit or distribute. He further stated that he probably would have given permission to Mr. Pace if he had asked.
Most recently, GMC contends, through counsel, that the company has never recognized a right of employees to visit garages where they do not work in order to distribute campaign literature.
GMC has agreed to withdraw Mr. Pace’s disciplinary notice and not to make it a basis for any present or future disciplinary action against him. In a letter to Ms. Deinhardt, GMC stated, however, that it “will in the future enforce its no solicitation/no distribution rule against all persons.”
The Election Officer finds that GMC has violated the Rules. On this record, local union officials have been engaging in a past and present pattern of making visits to garages for campaigning. The secretary-treasurer of the local union, Mr. Alston, stated that he knew of no employer rule against such visits, that he had campaigned in that manner himself for local union office, and that he had discussed the subject with GMC’s director of personnel.
Under Article VIII, Section 11(d) of the Rules:
[N]o 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 . . . premises. Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.
One source of “preexisting rights” for purposes of this section is past practice. In Re: Hall, 90 - Elec. App. - 1 (October 4, 1990); Brinkman, P-151-LU305-PNW (September 18, 1995), aff’d, 95 - Elec. App. - 21 (KC) (October 10, 1995). The existence of a contrary rule does not change this result if a contrary practice has grown up in the face of it. Blake,
P-953-LU848-CLA (October 30, 1991) (“de jure restricted union bulletin board may have been transformed through past practice into a de facto general purpose bulletin board”). The Election Officer finds that there is a past practice at GMC that allows short campaign visits at garages.
Gordon Pace
March 25, 1996
Page 1
Where there is a preexisting right, Article VIII, Section 11(d) of the Rules specifically protects it. Therefore, it may not be changed or cut back during the election process. Jesses, P-183-LU612-SEC (February 5, 1991) (“the employer cannot now change its practice” with respect to parking lot access); Camarata, P-709-LU299-MGN (April 10, 1991); Benson,
P-431-LU104-RMT (undated). Furthermore, the Rules, as quoted above, specifically require that access rights be applied without discrimination. Thus, the right of access to garages previously enjoyed, at least by local union officials, must be recognized for Mr. Pace.
The Election Officer also finds that GMC’s no solicitation/no distribution rule cannot stand in the face of the fundamental requirements and goals of the Consent Order underlying the Rules and this supervised election process, United States v. International Bhd. of Teamsters, et al., 88 Civ. 4486 (DNE) (S.D.N.Y.) (Consent Order dated March 14, 1989). The Court explained and enforced this portion of the Rules in its August 22, 1995 Opinion and Order. In Re: Application I of the Election Officer. There, the Court stated:
[T]his Court’s authority to enforce the Consent Decree extends not only to the parties to the Consent Decree but also to employers who “are in a position to frustrate the implementation of the [the Consent Decree] or the proper administration of justice.” New York Tel. Co., 434 U.S. at 174. Employers could frustrate the Consent Decree’s goal of ensuring open, free, and democratic IBT elections if they prohibited all campaigning on their property. As discussed below, the only way to ensure that each candidate has a meaningful opportunity to meet with the electorate and to explain his or her views is to provide candidates with a right of access to employer premises.
(Slip op. pp. 39-40).
GMC’s no solicitation/no distribution rule has the effect of prohibiting all campaigning at its garages and making persons employed there unreachable. This matter does not present the usual situation of a parking lot where employees may be reached before or after work hours, or a lunch room or break room where they may be reached during off-time. On this record, it appears that GMC runs garages where there are no non-work areas and where there is no regularly scheduled non-work time. If employees drive into the garage, they are never accessible. If they walk in, they may be an indistinguishable part of a crowd.
The unfairness of this no solicitation/no distribution rule is exacerbated by the discriminatory application of this no-solicitation rule. As noted above, local union officers have been permitted to distribute their literature in this delegate election. This type of discriminatory effect was also addressed by the Court in its August 22, 1995 decision:
Gordon Pace
March 25, 1996
Page 1
Incumbent Union officers and agents, who may have developed amicable relationships with employers, typically have access to employer premises by way of union-access provisions in collective bargaining agreements . . . Without the proposed rule, incumbents would have an unfair advantage over challengers.
Thus, the Court approved the parking lot access rule set forth in Article VIII,
Section 11(e) of the Rules, which accommodates the need for an effective solicitation right with the legitimate property rights of employers. This reasoning applies with equal weight to enforcement of the pre-existing right to engage in limited campaigning among the GMC employees established in this case. Since there would otherwise be no access to these employees, employees must receive a right of limited access to campaign in a manner that recognizes GMC’s legitimate property interests. The Election Officer therefore finds that the enforcement of the no-solicitation/no-distribution rule at GMC effectively prevents any campaign access to the GMC employees and, thus, violates the principles established under the Rules.
While any disciplinary action taken against Mr. Pace would also violate the Rules, GMC has agreed to withdraw the discipline, thus that aspect of this protest is considered resolved.
With respect to Mr. Pace’s charge that Local Union 272 violated the Rules by not informing him promptly of the disciplinary notice, the Election Officer does not find that the local union intended any delay. Mr. Pace in fact learned of the notice from Mr. Alston, outside of the local union’s normal process.
For the foregoing reasons, the protest is GRANTED as to the rights of IBT members to campaign, with a limited right of access, among the employees at Garage Management Corporation, RESOLVED as to the discipline of Mr. Pace, and DENIED in all other respects.
When the Election Officer determines that the Rules have been violated, she “may take whatever remedial action is appropriate.” Article XIV, Section 4. In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.
In this matter, the Election Officer must accommodate the requirements of the Consent Order and the legitimate interests of GMC. The Election Officer is guided by GMC’s past practice, found on this record, of permitting or acquiescing to short visits to its garages by members wishing to drop off campaign literature.
The Election Officer orders that GMC permit members of Local Union 272 to visit GMC garages where they do not work, for the purpose of entering, dropping off campaign literature, and promptly leaving.
Gordon Pace
March 25, 1996
Page 1
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Barbara Deinhardt, New York City Protest Coordinator
Arthur Wasserman, Regional Coordinator