November 5, 1996
VIA UPS OVERNIGHT
Ken Mee
November 5, 1996
Page 1
Ken Mee
42356 Greenbrier Park Drive
Fremont, CA 94538
Rome Aloise, Secretary-Treasurer
Teamsters Local Union 853
2100 Merced Street, Suite B
San Leandro, CA 94577
Warden West Company
28701 Hall Road
Hayward, CA 94545
Thomas P. Burke
Brobeck, Phleger & Harrison
550 S. Hope Street
Los Angeles, CA 90071
Ken Mee
November 5, 1996
Page 1
Re: Election Office Case No. P-1161-LU853-CSF
Gentlemen:
Ken Mee, a member of Local Union 853 and a candidate for International vice-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”). The protester contends that on October 31, 1996, he and other campaigners for the Ron Carey No Corruption-No Dues Increase Slate (“Carey slate”) were denied access to campaign in the parking lot at Warden West Corporation (“Warden West” or “employer”) in Hayward, California, in violation of Article VIII, Section 11(e) of the Rules. Mr. Mee further alleges that there has been a pattern of violations of the Rules by candidates on the Jim Hoffa-No Dues Increase-25 & Out slate (“Hoffa slate”) which has resulted in members of the Carey slate being denied equal access to employer facilities.
Warden West admits that it ejected the campaigners from its premises. The employer contends, however, that it does not have to grant access to its parking lot, relying on a 1991 determination by the Independent Administrator in In Re: Hernandez, 91 - Elec. App. - 112 (SA) (April 1, 1991). Moreover, it argues that due to the employer’s business, it has heightened security concerns about permitting non-employee campaigners in its lot. Finally, the employer states that there is an adequate alternative means of campaigning to its employees outside its property--on the sidewalk adjacent to its gates.
Ken Mee
November 5, 1996
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The protest was investigated by Regional Coordinator Matthew D. Ross.
Warden West is a distribution facility for northern California department stores, including Macy’s. The Hayward facility employs approximately 800 IBT members. On October 31, Mr. Mee and George Saavedra went to the employee parking lot of Warden West to campaign for the Carey slate. They were approached by a security guard who told them to leave.
The employer does not dispute that it does not permit campaigning in its parking lot. Warden West states that on its premises, but inside the buildings and not in the employee parking lot, it has valuable merchandise that is “easily pilfered.” Warden West argues that it is therefore especially sensitive about and unwilling to permit non-employees or other unauthorized persons to enter their perimeter gate. The company monitors activity in its employee parking lot with surveillance cameras.
The employer further argues that the Election Officer is bound by the decision of the Independent Administrator in In Re: Hernandez in which the Independent Administrator ruled that there was no need for encroachment on Warden West’s private property. Finally, the employer argues that on March 9, 1995, it protested the then-proposed rule on parking lot access to Election Officer Amy Gladstein arguing that the rule was ambiguous. In this letter Warden West stated, “Warden West would continue to assert its rights as it has done in the past, and, if necessary, would challenge the ability to order a non-party to concede protected property rights.”
Article VIII, Section 11(e) of the Rules states, in relevant part, as follows:
Subject to the limitations in this Subsection . . . (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); (iv) each member of the International Union who is employed within the regional area(s) in which said candidate is seeking office has the reciprocal right to receive such literature and/or solicitation of support from such candidate for International office or candidate’s advocate.
Ken Mee
November 5, 1996
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The foregoing rights are available only in connection with campaigning during the 1995-1996 IBT International Union Delegate and Officer conducted pursuant to the Consent Order and only during hours when the parking lot is normally open to employees. The rights guaranteed in this Subsection are not available to an employee on working time, may not be exercised among employees who are on working time and do not extend to campaigning which would materially interfere with the normal business activities of the employer. 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 member entitled to such access. Nothing in this Subsection shall entitle any candidate or other Union member to access to any other part of premises owned, leased, operated or used by an employer or to access to a parking lot for purposes or under circumstances other than as set forth herein.
The foregoing rights are presumptively available, 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 . . .
The Election Officer recently extensively reviewed the history and purposes of the parking lot access rule in Cetinske et al., P-886-LU480-SCE et seq. (November 1, 1996) (decision on remand) (appeal pending). The Election Officer stated:
The U.S. District Court specifically approved the rule, calling it “crucial to the achievement of a free, fair, and democratic election process . . .” United States v. IBT (1996 Election Rules Order), 896 F. Supp. 1349, 1367 (S.D.N.Y. 1995), aff’d as modified, 86 F.3d 271 (2d Cir. 1996). The District Court found that “other methods of campaigning, including mailings, telephone campaigns, home visits, and alternative methods of face-to-face campaigning are woefully inadequate.” Id. The District Court found that the rule was “agreeable to the usages and principles of law” because it was extremely circumscribed in scope:
Ken Mee
November 5, 1996
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[T]he rule provides no right to enter any area other than an employee parking lot, and IBT members can gain access only during hours when the parking lot is normally open to employees. IBT members only have a right of access for the purpose of campaigning for delegate or International Union office and only during hours when a parking lot is normally open to IBT members. The rule creates no right to campaign or to receive campaign advocacy during working hours, and campaign activity that would materially interfere with the normal business activities of the employer is not permitted. An employer may require a person seeking access to an employee parking lot to produce reasonable identification in order to assure that such a person is a candidate or other IBT member entitled to such access.
Id. The District Court further noted that as written, the rule was a presumptive right only:
[A]ny employer may rebut this presumption by demonstrating to the Election Officer that the exercise of the right by IBT members with regard to that employer is “neither necessary nor appropriate to meaningful campaigning or IBT members’ becoming informed about candidates.”
Id. The District Court found that the rule “affords employers full procedural protections by giving any employer the opportunity to apply to the Election Officer for an exemption from the rule.” The denial of a requested exemption could be appealed to the Election Appeals Master and ultimately to the District Court. Id.
Finally, the District Court found that the All Writs Act authorized the Court to enforce the Consent Decree not only against the parties to it, but also against employers who “are in a position to frustrate the implementation of [the Consent Decree] or the proper administration of justice.” Id. at 1366, quoting United States v. New York Tel. Co., 434 U.S. 159, 174 (1977).
The Election Officer thus noted that the right-of-access is fully enforceable against employers because of the importance of the right to campaign on their property, that the rule is designed to minimize intrusion on the legitimate operations of the employer, and that the burden is on an employer to demonstrate that further restrictions on access are warranted.
Here, Warden West argues that it does not have to grant access based upon the decision of the Independent Administrator in Hernandez. Before addressing the decision in Hernandez, the Election Officer notes that 1991 decisions do not supply a direct precedent to the issue of employer access. The 1991 Election Rules did not contain a Court-approved access rule. As the Election Officer explained in Cetinske,
Ken Mee
November 5, 1996
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Instead, the Election Officer ruled that such access was a “pre-existing right” belonging to members under Section 7 of the National Labor Relations Act as interpreted by Jean Country, 291 NLRB 11 (1988). Thus, for each facility, the Election Officer was required to apply a Jean Country analysis . . . Here, there is a specific rule approved by the District Court that sets forth the restrictions which employers may impose. The rule also places the burden on the employer of justifying additional restrictions, a burden that was not explicit during the 1991 election.
The Jean Country analysis required that the Election Officer and the Independent Administrator measure the protester’s right to campaign against the employer’s property interest and the availability of a reasonable alternative means of communication for the protester. It was within this framework that the Independent Administrator ruled on access to Warden West’s property in 1991. Thus, in Hernandez, the Independent Administrator rules:
Warden West’s facilities is surrounded by an eight-foot high fence. That fence is topped with razored wire. In addition, guards patrol the interior of the Warden West facility. Still further, Warden West’s collective bargaining agreement is explicit in its restrictive use of Warden West facilities. That collective bargaining agreement has been relied upon to prevent campaigning on Warden West’s property in past Local Union elections.
. . . [I]t would appear that while Mr. Hernandez would have greater access to Warden West’s employees if permitted access into Warden West’s facilities, he has a reasonable alternative means of communicating with his fellow IBT members on the setback on the Hall Road side and on the sidewalk on the Hesperian Boulevard side. When Mr. Hernandez’s rights of access are measured against the strong property interest Warden West has demonstrated in protecting its premises, there is no need to require encroachment onto Warden West’s private property given the alternative access afforded.
Thus, the Election Officer finds in light of the express parking-lot-access rule in this election, the Independent Administrator’s 1991 ruling is inapplicable.
Warden West also argues that it has valuable merchandise in its facility and therefore it needs to prevent access to its parking lot in order to protect its property. This argument is not convincing. The employer has heightened security and can, under the rule, require reasonable identification from the campaigners. Moreover, by the employer’s own admission, the parking lot is monitored by security cameras, thus, any activity such as “pilfering” would be immediately discovered. Moreover, the Election Officer has not permitted an employer to deny access based upon prior restricted access. See Carlucci, P-916-LU705-CHI
Ken Mee
November 5, 1996
Page 1
(September 23, 1996) (rejecting employer’s offer to have campaigners campaign on sidewalk in front of parking lot because it has a strict no-solicitation policy); Saavedra, P-923-LU439-CSF (September 26, 1996), aff’d, 96 - Elec. App. - 250 (KC) (October 10, 1996) (rejecting the offer of access to another parking lot at the facility because it would interfere less with business operations).
The employer did not seek to challenge the rule when proposed and cannot do so now.
To the extent that Mr. Mee’s protest claims discrimination with respect to access,
Mr. Mee has not provided any evidence that members of the Hoffa slate have been granted access to Warden West’s property.
Accordingly, the protest is GRANTED as to access to the employer’s parking lot 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. As a result, the Election Officer directs Warden West to immediately permit campaigning in the employee parking lots at its Hayward, California facility. This grant of access will only be limited by the conditions set forth in Article VIII, Section 11(e) of the Rules. Further, within two (2) working days of the receipt of this decision, Warden West 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
Ken Mee
November 5, 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, 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
Matthew D. Ross, Regional Coordinator