July 11, 1996
VIA UPS OVERNIGHT
Mauricio Terrazas
July 11, 1996
Page 1
Mauricio Terrazas
3800 Bradford Street #233
La Verne, CA 91750
Dean Nelson, Labor Relations Officer
Sysco Company
2701 E. Currier Road
Walnut, CA 91789
Andrew Weiss
Jackson, Lewis, Schnitzler & Krupman
1888 Century Park East, Suite 1600
Los Angeles, CA 90067
Mauricio Terrazas
July 11, 1996
Page 1
Re: Election Office Case No. P-825-LU63-CLA
Gentlemen:
Mauricio Terrazas, a member of Local Union 63, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) against Sysco Food Services of Los Angeles, Inc. (“Sysco”).
Mr. Terrazas contends that Sysco refused to grant him access to its parking lot to campaign for a candidate for International office.
Sysco admits that it refused access to the protester. Sysco additionally contends that it had the right to deny access to Mr. Terrazas because the protester was confrontational and disruptive, citing that portion Article XIV, Section 1 of the Rules, which reads, “No protest of any person or entity shall be considered if such person or entity . . . caused or significantly contributed to the situation giving rise to such protest.”
The protest was investigated by Regional Coordinator Dolly M. Gee.
Mauricio Terrazas
July 11, 1996
Page 1
The investigation revealed that on June 13, 1996, Mr. Terrazas attempted to gain access to the employee parking lot at Sysco’s Walnut, California facility in order to solicit signatures for petitions. He was denied access by the guard. When he asked to speak to someone in charge, he was directed to speak with Dean Nelson, a labor relations officer at Sysco.
Messrs. Terrazas and Nelson met in the lobby of the facility. The protester showed Mr. Nelson a copy of the Election Officer’s advisory regarding limited right of access to employee parking lots and explained that he had a right to campaign on the premises.
Mr. Nelson refused to grant Mr. Terrazas access. Mr. Terrazas then became angry with
Mr. Nelson and shouted at him, at which point Mr. Nelson, who also became angry, asked the protester to leave. Mr. Terrazas left the premises.
Article VIII, 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 “presumptively 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, 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]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 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, aff’d as modified on other grounds, __F.3d__, 1996 WL 316635 (2d Cir.
June 13, 1996).
Mauricio Terrazas
July 11, 1996
Page 1
In an attempt to resolve this protest, the Regional Coordinator and Protest Chief Benetta Mansfield engaged in several discussions with Sysco. It is Sysco’s position that it is willing to grant limited access to the parking lot of its facility provided the individuals desiring to engage in such campaigning “provide advance notice of the dates and times that Union campaigners desire entry onto the premises,” “present adequate identification, and provide samples of the information to be distributed.” Additionally, Sysco would only permit access if an individual interested in campaigning would sign a comprehensive “Release of Liability” prior to entering on Sysco’s property. Sysco insists that the Release of Liability is a necessary prerequisite to access because “the parking lot and premises of Sysco present various dangers to individuals and Sysco does not wish to incur any liability as a result of this non-business related activity.”
The Election Officer rejects the terms of limited access offered by Sysco for the following reasons. Generally, the conditions demanded by Sysco would have a chilling effect on worksite campaign activity, a result clearly prohibited by both the Rules and the Consent Decree. The terms and limits of the right to work-site access have been established by the Court and by the Rules. Sysco cannot unilaterally alter these terms and limitations merely because it objects to them.
Accordingly, Sysco cannot require that the employer be allowed to view campaign material before it is distributed on the premises. This prerequisite would frustrate the goal of affording candidates and their supporters with “a meaningful opportunity to meet with the electorate” since the requirement carries an implicit threat that the employer may censor such literature or deprive entry. To grant an employer such power would directly undermine the ability of IBT members to campaign free from interference and censorship.
In addition, the requirement that individuals sign a liability waiver is an impermissible restriction on the member’s right to campaign that goes beyond the scope of the right as outlined in the Rules. The requirement to sign the liability waiver would be a prerequisite to entry onto the premises. The Rules allow for no such pre-condition, although other limitations, such as where members may campaign and when an employer may bar campaigning, do appear in Article VIII, Section 11(e).
In addition, the liability waiver is also objectionable because it is worded as a request for access. Sysco would have members sign a formal petition in order to be granted access that is their right under the Rules. The message Sysco would send with this requirement would restrict that access permitted by the Rules. Such a result goes against a central mission of the Election Officer: to keep members accurately informed of their political rights.
Sysco’s contention that Mr. Terrazas is estopped from protesting the denial of access is without merit. The investigation revealed that the protester did not became angry or raise his voice to Mr. Nelson until after he was told that he would not be allowed to campaign in Sysco’s parking lot. While the Election Officer does not condone uncivil conduct, the fact that Mr. Terrazas lost his temper does not bar him from obtaining enforcement of his rights under the Rules.
Accordingly, the protest is GRANTED.
Mauricio Terrazas
July 11, 1996
Page 1
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. As a result, the Election Officer directs Sysco to permit campaigning in the employee parking lots at all facilities where it employs IBT members. This grant of access will only be limited by the conditions set forth in Article VIII, Section 11(e) of the Rules. IBT members who seek access to campaign will not be required to provide advance notice, to submit their literature for review or to sign a liability waiver. Further, within two (2) working days of the receipt of this decision, Sysco will submit an affidavit to the Election Officer in which it acknowledges its compliance with this decision.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1966).
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, D.C. 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
Dolly M. Gee, Regional Coordinator