October 17, 1996
VIA UPS OVERNIGHT
James P. Hoffa
October 17, 1996
Page 1
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Daniel Dufreress
Labatts Breweries, Inc.
50 Labatts Street
LaSalle, Quebec H8R 3E7
Jean Claude Rochon
Labatts Breweries, Inc.
50 Labatts Street
LaSalle, Quebec H8R 3E7
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond
Ferrara & Feldman, P.C.
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
James P. Hoffa
October 17, 1996
Page 1
Re: Election Office Case No. P-942-LAB-CAN
Gentlemen:
James P. Hoffa, a candidate for general president, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) alleging that Labatts Breweries (“Labatts”) refused to permit him to campaign in a parking lot where IBT members park their vehicles at the Labatts facility in LaSalle, Canada, in violation of Article VIII, Section 11(e) of the Rules.
Labatts admits that it removed Mr. Hoffa from its employee parking lot and asserts that the Rules do not pertain to employers.
This protest was investigated by Regional Coordinator Gwen K. Randall.
James P. Hoffa
October 17, 1996
Page 1
On September 6, 1996, Mr. Hoffa and other members went to the Labatts facility to campaign in the employee parking lot. Between 1:30 and 2:30 p.m., Labatts management employees Daniel Dufreress and Jean Claude Rochon advised Mr. Hoffa and those accompa-nying him that the “Election Rules don’t mean anything.” Labatts then contacted the police to eject Mr. Hoffa. Two officers from the local police department ejected Mr. Hoffa and the other members from the parking lot and restricted them to campaigning on a small sidewalk area outside the Labatts premises.
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]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 (1996 Election Rules Order), 896 F. Supp. 1349 (S.D.N.Y. 1995), aff’d as modified, 86 F.3d 271 (2d. Cir. 1996).
In further articulating the Court’s authority over employers of IBT members, the decision states:
The Consent Decree and this 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. The Second Circuit has recognized the Consent Decree provides an independent source of rights for IBT members that may extend beyond the rights provided under labor law . . .
Moreover, the All Writs Act authorizes this Court to “issue all writs necessary or appropriate in aid of [its] . . . jurisdiction[ ] and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a) (1988). This authority extends to nonparties to the Consent Decree, in keeping with the Supreme Court’s holding that,
James P. Hoffa
October 17, 1996
Page 1
[t]he power conferred by the Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirmative action to hinder justice.
United States v. New York Tel. Co., 434 U.S. 159, 174 (1977) (citations omitted)[.]
U.S. v. IBT, supra.
In an effort to resolve this protest, Regional Coordinator Randall had several discussions with Labatts officials. Labatts, however, has refused to grant parking lot access. Labatts actions constitute a violation of Article VIII, Section 11(e) of the Rules.
Accordingly, the protest is GRANTED.
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 appro-priate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.
The Election Officer orders Labatts to permit campaigning in the parking lot where IBT members park their personal vehicles, in conformity with Article VIII, Section 11(e) of the Rules.
Within two (2) working days of the date of this decision, Labatts shall 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, 1996).
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:
James P. Hoffa
October 17, 1996
Page 1
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
Gwen K. Randall, Regional Coordinator