Protest Decisions

October 9, 1996

VIA UPS OVERNIGHT

Jose Pinzon

6211 W. Patterson

Chicago, IL 60634

Tony Carrozza

Levy Home Entertainment

4201 Raymond Drive

Hillside, IL 60162

Re:  Election Office Case No.P-990-LU705-CHI

Gentlemen:

Jose Pinzon, a member of Local Union 705, has 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”) alleging that Levy Home Entertainment (“Levy”) violated the Rules by preventing Mr. Pinzon and another IBT member from campaigning in its employee parking lot and outside the employee exit door from the plant on September 16, 1996.

Levy admits that it denied Mr. Pinzon access to its property for the purpose of campaigning.  The employer contends that its property rights and safety considerations outweigh the protester’s right under the Rules to campaign in the employee parking lot, and asserts that the Election Officer does not have jurisdiction over Levy in this matter.  Levy further states that it offered Mr. Pinzon the opportunity to campaign in an area outside the parking lot.

This protest was investigated by Regional Coordinator Julie E. Hamos.

Jose Pinzon

October 9, 1996

Page 1

Mr. Pinzon alleges that on Monday, September 16, he and Local Union 703 Member Bill Lloyd attempted to campaign on behalf of general president candidate Ron Carey from two locations on Levy’s property--in the employee parking lot, and outside the employee exit door leading from the plant.  He states that they were approached by Levy Warehouse Manager Tony Carrozza, who informed them that campaigning was not permitted on the premises and suggested that they campaign from a street located 1½ blocks from Levy’s property.

Jim Crawford, Levy’s vice president of Human Resources, admits that Levy denied Mr. Pinzon access to its property, including the employee parking lot, on September 16, 1996.  According to Mr. Crawford, however, Mr. Carrozza told the protester that he and Mr. Lloyd could campaign from the street adjacent to the plant, next to one or both of the driveways that lead to the employee parking lot.[1]  Mr. Crawford asserts that Levy’s parking lot is “unsecured,” and that denial of access is reasonable, based on Levy’s concern about the security of employee vehicles and the risk of confrontations if campaigning is allowed. 

Mr. Crawford further states that he “doesn’t recognize the Consent Decree” under which the Office of the Election Officer operates, and contends that the Election Officer does not have jurisdiction to force Levy to violate its no-solicitation rule.

As stated above, one of the locations where the protester attempted to campaign was outside the employee exit door of the Levy plant.  Under the Rules, however, non-employees do not have a right to campaign on employer premises, except in the parking lot, unless there is a pre-existing right to do so.  Article VIII, Section 11(d) of the Rules provides that “no restrictions shall be placed upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature . . . or engage in similar activities on employer or union premises.”  See Rud, P-766-LU320-NCE (May 23, 1996) (section applies to non-employees).   Mr. Pinzon has not presented nor has the Election Officer’s investigation revealed any evidence that Levy permitted campaigning outside the employee exit door in prior years.  Thus, the protester did not have a right under the Rules to campaign in this area.  See Hoffa, P-957-IBT-MGN (October 2, 1996).                

Access to employee parking lots, on the other hand, is not dependent under the Rules on a pre-existing right.  Article VIII, Section 11(e) provides that:

(iii) a candidate for International office and any Union member within the regional area(s) in which said candidate is seeking office may distribute literature and/or otherwise solicit support in connection with such candidacy in any parking lot used by Union members to park their vehicles in connection with their employment in said regional area(s).

Jose Pinzon

October 9, 1996

Page 1

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.  Employers may also verify the identify of members wishing to campaign:  “An employer may require reasonable identification to assure that a person seeking access to an employee parking lot pursuant to this rule is a candidate or other union member entitled to such access.”  See Terrazas, P-825-

LU63-CLA (July 11, 1996), aff’d, 96 - Elec. App. - 217 (KC) (July 22, 1996); Eby, P-575-LU560-MOI (March 11, 1996), aff’d, 96 - Elec. App. - 73 (KC) (February 13, 1996).

In the instant case, the Election Officer finds that Mr. Pinzon was entitled under the Rules to campaign in Levy’s employee parking lot. 

Levy asserts that the Rules do not apply to it because it was not a party to the Consent Decree, under which the Rules were promulgated.  This argument was firmly rejected by United States District Judge David N. Edelstein when the Court modified and affirmed the Rules:

[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.

United States 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).  See Carlucci, P-916-LU705-CHI (September 23, 1996).  

Levy further argues that the protester’s rights under the Rules are outweighed by its property rights and safety considerations.  Access to campaign on employer parking lots is presumptively available under Article VIII, Section 11(e) of the Rules, notwithstanding any employer rule or policy to the contrary, based upon the Election Officer’s finding that an absence of such rights would subvert the Consent Order’s objectives of ensuring free, honest, fair and informed elections and opening the union and its membership to democratic processes.

Article VIII, Section 11(e) of the Rules sets forth a means of rebutting this presumption:

Jose Pinzon

October 9, 1996

Page 1

Such presumption may be rebutted, however, by demonstrating to the Election Officer that access to Union members in an employer parking lot is neither necessary to nor appropriate to meaningful exercise of democratic rights in the course of the 1995-1996 election.  An employer seeking to deny access to Union members in an employee parking lot may seek relief from the Election Officer at any time.

Levy has not sought such relief and the Election Officer does not find that it has demonstrated a basis for such relief in its oral response to this protest.

Under the Rules, Mr. Pinzon must be provided with a meaningful opportunity to campaign.  Levy’s offer to permit campaigning from the street adjacent to the driveways leading to the employee parking lot is insufficient.  As the Election Officer stated in Carlucci, supra, this type of location “would prevent face-to-face contact and reduce campaign opportu-nities to brief encounters through the windows of vehicles.”  See also Saavedra, P-923-LU439-CSF (September 26, 1996).    Such activity would also create a greater potential for disrupting traffic and the legitimate business of the employer.   See In Re: Eby, 96 - Elec. App. - 131 (KC) (March 19, 1996).

For the foregoing reasons, the protest is GRANTED in regard to the parking lot access 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 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 Levy Home Entertainment 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, subject only to the limitations set forth in that section.  Within two (2) days of the date of this decision, Levy 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:

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Jose Pinzon

October 9, 1996

Page 1

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

Julie E. Hamos, Regional Coordinator