March 11, 1996
VIA UPS OVERNIGHT
Dan R. Eby
600 Ivygate Drive
St. Louis, MO 63129
Ed Keady
Schnucks Grocery Warehouse
12921 Enterprise Way
Bridgeton, MO 63146
Re: Election Office Case No. P-575-LU560-MOI
Gentlepersons:
A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Dan Eby, a member of Local Union 688, and a candidate for delegate. Mr. Eby alleges that he and three other members were denied campaign access to a warehouse operated by Schnuck’s Markets in Bridgeton, Missouri, in violation of Article VIII, Section 11(e) of the Rules. None of the four members are employees of Schnuck’s.
In response, Schnuck’s argues that the company is not bound by the limited-access provisions of the Rules, as approved and adopted by the United States District Court for the Southern District of New York (Hon. David N. Edelstein), U.S. v. IBT, No. 88 Civ. 4486 (S.D.N.Y. August 22, 1995). Instead, Schnuck’s argues that the company need only permit nonemployees access to employer properties for campaign purposes when employees are beyond the reach of reasonable union efforts to communicate as established in NLRB v. Babcock and Wilcox, 351 U.S. 105 (1956) and Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). According to
Dan R. Eby
March 11, 1996
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Schnuck’s, the protester has not demonstrated the requisite need for such access and, thus, the company acted within its legal rights in denying him access.
This protest was investigated by Regional Coordinator Michael Gordon.
The facts are not in dispute. Schnuck’s, a large grocery chain, employs approximately 200 Local Union 688 members who work multiple shifts at its warehouse in Bridgeton. On February 28, 1996, the protester and the other members arrived at the Schnuck’s warehouse to distribute campaign literature for the delegate election in the parking lot. The members approached a guard house operated by Schnuck’s which sits in a driveway located between 60 and 70 yards from the street access. A traffic arm by the guard house controls the flow of traffic in and out of the facility. The public street accessing Schnuck’s is a dead-end street that leads only to Schnuck’s driveway. There is a wide entrance from the street into the driveway and vehicles enter and exit the driveway quickly. There is no stop sign controlling the flow of traffic between the driveway and the street. Nor is there a sidewalk or other public area bordering or intersecting the driveway.
The Schnuck’s guard refused to grant access and referred them to Schnuck’s Labor Manager Ed Keady. Mr. Keady also refused to grant access to Schnuck’s parking lot, but gave permission for them to handbill in the area adjacent to the driveway between the main street and a fence that entirely surrounds the company’s grounds.
Section 11(e) of the Rules creates a limited right of access to IBT members and candidates to distribute literature and seek support for their campaign in any parking lot used by union members to park their vehicles in connection with their employment. While “presump-tively available,” this right is not without limitations. It is not available to any employee on working time, and candidates and their supporters cannot solicit or campaign to employees who are on working time. It is also restricted to campaigning that will not materially interfere with an employer’s normal business activities.
In approving the Rules, the United States District Court Judge Edelstein considered an objection to the right of access to employer premises filed by Pepsi-Cola Company (“Pepsi”). Pepsi contended that the rule contravenes the Supreme Court’s ruling in Lechmere. The Court rejected this argument, and held as follows:
[T]he right of access contemplated by the proposed election rule is not derived from Section 7 of the [National Labor Relations Act], but rather from the Consent Decree. . .
The Consent Decree and the Court’s authority to enforce the Consent Decree under the All Writs Act provide a basis for the right of access set forth in the proposed rule . . . Under the Consent Decree, this Court bears ultimate responsibility for ensuring that the IBT is “maintained democratically, with integrity, and for the sole benefit of its members and without unlawful influence.”
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March 11, 1996
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In the instant case, this 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 Consent Decree] or the proper administration of justice.” . . . [T]he 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.
U.S. v. IBT, supra, at 38 - 40. (Citations omitted.)
Thus, the legal bases proffered by Schnuck’s for denying members limited access to its property were squarely rejected by the federal district court when it approved the Rules.
In consideration of the foregoing, the protest is GRANTED.
When the Election Officer finds 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 seriousness of the violation, as well as its potential for interfering with the election process.
In these circumstances, the Election Officer directs Schnuck’s to immediately grant access rights to nonemployee IBT members for campaign purposes to the parking lot used by local union members. Such members shall announce their presence and purpose to the security officer located at the guard house and provide identification, if requested.
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
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March 11, 1996
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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
Michael D. Gordon, Regional Coordinator