November 25, 1996
VIA UPS OVERNIGHT
Darryl Connell
November 25, 1996
Page 1
Darryl Connell
S15 W. 17274 Willowsprings Drive
Dousman, WI 53118
David Shipley, Secretary-Treasurer
Teamsters Local Union 695
1314 N. Stoughton Road
Madison, WI 53714
Pat Rosio
P.O. Box 141
Jackson, WI 53037
Tim Heyne, Plant Superintendent
Seneca Foods
N168 W. 20701 Main Street
Jackson, WI 53031
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
Richard Brook
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
Darryl Connell
November 25, 1996
Page 1
Re: Election Office Case No. P-1283-LU200-NCE
Gentlepersons:
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
Darryl Connell, a member of Local Union 200. Mr. Connell alleges that Seneca Foods denied him access to its employer parking lot to campaign, in violation of the Rules. Mr. Connell also alleges that Sam Anderson, a business agent for Local Union 695, to which Seneca Foods’ employees belong, was allowed into the employer’s facility to campaign.
Seneca Foods admits that it ordered Mr. Connell and another individual to leave its employee parking lot because they were trespassing. The employer denies that any campaigning took place inside the facility.
Darryl Connell
November 25, 1996
Page 1
Regional Coordinator Judith E. Kuhn investigated the protest.
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 work time, and candidates and their supporters cannot solicit or campaign to employees who are on work 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 David N. 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, Inc. v. NLRB, 502 U.S. 527 (1992). 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, supra, at 40. (Citations omitted.)
The employer’s argument that campaigners in the employee parking lot are trespassers is, therefore, without merit. Preventing IBT members from campaigning in the parking lot, in the manner assigned by the Rules, is a violation of the Rules.
The investigation, which included interviews with members who attended a meeting organized by Mr. Anderson the day the protesters were ejected from Seneca Foods’ property, did not produce any evidence that Mr. Anderson campaigned during the meeting. The evidence does indicate that Mr. Anderson had a brief campaign-related conversation with
one member after the meeting ended. Such campaign-related activity was incidental to
Mr. Anderson’s legitimate business at the facility and does not violate the Rules.
The investigation did reveal, however, that just before the meeting started, Pat Rosio, a steward at Seneca Foods, took away campaign literature from members who had received it from the protester or his colleague in the parking lot. Ms. Rosio threw away this literature. She states that she took the literature “so no one would be campaigning during the meeting.” IBT members, however, possess the right to receive and keep campaign literature given to them when they are not on work time. Simple possession of such material does not constitute campaigning in a meeting or anywhere else. Ms. Rosio’s actions, therefore, violated the Rules.
Darryl Connell
November 25, 1996
Page 1
Accordingly, the protest is GRANTED as it relates to access to the employer’s parking lot and Ms. Rosio, 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 the following:
1. The Election Officer directs Seneca Foods to permit campaigning in its employee parking lot. This access will be limited only by the conditions set forth in Article VIII, Section 11(e) of the Rules.
2. Within one (1) day of the receipt of this decision, Seneca Foods the employer will submit an affidavit to the Election Officer indicating its intent to comply with this order.
3. Ms. Rosio is ordered to cease and desist interfering with the rights of IBT members guaranteed by the Rules.
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
Darryl Connell
November 25, 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
Judith E. Kuhn, Regional Coordinator
Leroy Ellis, Jr., Stand Up for Teamsters Slate