Protest Decisions

December 2, 1996

VIA UPS OVERNIGHT

Kirk Stephenson

December 2, 1996

Page 1

Kirk Stephenson

332 N. 102nd

Seattle, WA  98133

Ron Carey Campaign

c/o Nathaniel Charny

Cohen, Weiss & Simon

330 W. 42nd Street

New York, NY  10036

Laidlaw Transportation, Inc.

South Terminal

7739 1st Avenue, S.

Seattle, WA  98108

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

Kirk Stephenson

December 2, 1996

Page 1

Re:  Election Office Case No. P-1204-LU763-PNW

Gentlemen:

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

Kirk Stephenson, a member of Local Union 763.  Mr. Stephenson alleges that agents of Laidlaw Transportation, Inc. (“Laidlaw”) discriminated against supporters of Ron Carey, IBT general president and a candidate for reelection, by denying them access to a Laidlaw lunch room for campaigning purposes.  Mr. Stephenson contends that Laidlaw has permitted such access in the past and that supporters of James P. Hoffa, a candidate for general president, have gained such access.

Laidlaw asserts that it directed Gordon Teller, a member of Local Union 741 who is not a Laidlaw employee, to leave the lunch room because the group which had gathered became too loud.  Laidlaw asserts that it has acted similarly in the past, but acknowledges that the rule may not have been consistently enforced.  The company also asserts that campaigners have been permitted to campaign outside of the building.

This protest was investigated by Regional Coordinator Christine M. Mrak.

Kirk Stephenson

December 2, 1996

Page 1

On November 5, 1996, Mr. Teller spoke with 10 to 15 IBT members in an open area just outside the drivers’ lunch room.  The gathering then moved inside the lunch room, which is about eight feet from an office belonging to Angelo Portomeña, the terminal manager at the facility.  As the noise level in the room increased, Mr. Portomeña went into the lounge and asked Mr. Teller if he could have a word with him.  When Mr. Teller and Mr. Portomeña walked back to the office, Mr. Portomeña told Mr. Teller that he was concerned that the loud conversation would disturb Laidlaw’s business environment.  Mr. Portomeña then asked

Mr. Teller to campaign outside of the building.  Mr. Teller responded that the “other side” had access to the lunch room, and that Carey supporters should be given an equal opportunity to campaign.  Mr. Portomeña denied that pro-Hoffa campaigners had access to the lunch room.  Mr. Teller left the lunch room following the conversation. 

Mr. Teller states that he has campaigned in the Laidlaw facility’s lunch room several times in the past.  Mr. Teller states that Michael Laslett, a Local Union 174 organizer and chairman of the Washington State Carey campaign, also has campaigned in the lunch room.  According to Mr. Stephenson, non-employees were permitted access to the lunch room during a decertification campaign involving the IBT and AFSCME.  In each of the above incidents, according to Messrs. Teller and Stephenson, Laidlaw was aware of this activity but did not stop it.

Mr. Stephenson states that Laidlaw’s South Park facility has had several terminal managers in the past five years, and that there has been no consistent policy in regards to access.  Mr. Portomeña agrees that the South Park terminal has had several managers and that he was not present when the above incidents of campaigning took place.[1]   He states that as head of Laidlaw’s Lake City Way terminal, non-employee access was not permitted. 

Mr. Portomeña recalls a decertification election involving the IBT, AFSCME and Laidlaw, and agrees that non-employees had access to the inside portions of the South Park terminal.  Mr. Portomeña states that he is willing to permit Mr. Teller to leave pro-Carey literature in the lunch room. 

Article VIII, Section 11(d) of the Rules states:

[N]o restrictions shall be placed upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on employer . . . premises.  Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.

Kirk Stephenson

December 2, 1996

Page 1

One source of “preexisting rights” for purposes of this section is past practice.  In Re: Hall, 90 - Elec. App. - 1 (October 4, 1990); Brinkman, P-151-LU305-PNW (September 18, 1995), aff’d, 95 - Elec. App. - 21 (KC) (October 10, 1995).  Where there is a pre-existing right, Article VIII, Section 11(d) of the Rules specifically protects it.  Therefore, it may not be changed or cut back during the election process.  Jesses, P-183-LU612-SEC (February 5, 1991) (“the employer cannot now change its practice” with respect to parking lot access); Camarata, P-709-LU299-MGN (April 10, 1991); Benson, P-431-LU104-RMT (undated).  Furthermore, the Rules, as quoted above, specifically require that access rights be applied without discrimination.

Here, the evidence demonstrates that Laidlaw has a past practice of permitting non-employees in the lunch room at its South Park facility.  Mr. Portomeña himself permitted such access to the facility until the campaigning became too loud.  At that time, he attempted to limit access.  In consideration of the facility’s long history of granting non-employee access to the lunch room, however, a pre-existing right has been established.  The company, however, can require that campaigners keep the noise level of such campaigning to a reasonable level.  The access right granted here does not include the right to engage in any conduct which reduces production, decreases discipline, is unsafe or in any way interrupts the business of Laidlaw.

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 appropriate 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 the following:

1.  All agents of Laidlaw’s South Park facility shall cease and desist from interfering with the pre-existing right of non-employees to campaign in the facility’s lunch room; and

2.  Laidlaw shall, within one (1) day of receipt of this decision, post the attached “Notice to IBT Members Employed at Laidlaw’s South Park Facility” on all local union bulletin boards.  Within two (2) days of  receipt of this decision, Laidlaw shall file an affidavit with the Election Officer demonstrating compliance with this order.

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

Kirk Stephenson

December 2, 1996

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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, 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

Christine M. Mrak, Regional Coordinator

NOTICE TO IBT MEMBERS EMPLOYED

AT LAIDLAW’S SOUTH PARK FACILITY

You have the right to campaign on behalf of any candidate for IBT International office.

This right includes access for employees and non-employees to the South Park facility’s employee parking lot.  By decision of the Election Officer, this right also includes access for employees and non-employees to the South Park facility’s employee lunch room.  Laidlaw will not interfere with your right to campaign.

You do not have the right to engage in any conduct which reduces production, decreases discipline, is unsafe or in any way interrupts the business of Laidlaw.

_________________________________

Angelo Portomeña, Terminal Manager

Laidlaw, South Park Facility

This is an official notice which must remain posted through December 10, 1996 and must not be defaced or altered in any manner or be covered with any other material.

Approved by Barbara Zack Quindel, IBT Election Officer.