January 22, 1998
VIA UPS OVERNIGHT
Douglas Frechin
January 22, 1998
Page 1
Douglas Frechin
7515 181st Place, SW
Edmonds, WA 98076
Dan Hazard, Operations Supervisor
Yellow Freight System
12855 48th South
Tukwila, WA 98168
Daniel L. Hornbeck, Esq.
Yellow Freight
Post Office Box 7563
10990 Roe Avenue
Overland Park, KS 66207
Douglas Frechin
January 22, 1998
Page 1
Re: Election Office Case No. PR-051-LU174-PNW
Gentlemen:
Douglas Frechin, a member of Local Union 174, 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”) against Yellow Freight and Yellow Freight Operations Supervisor Dan Hazard. The protester asserts that Mr. Hazard refused to allow him access to campaign at a Yellow Freight parking lot in violation of the Rules.
Yellow Freight does not deny that IBT members retain the right to campaign at the location in question. They assert, however, that as the protester had been discharged from the company for alleged misconduct, Yellow Freight has the right to completely bar him from their property. They contend that this position places no material limitation on the general right of IBT members to campaign in the employer’s parking lot.
This protest was investigated by Regional Coordinator Christine M. Mrak.
Mr. Frechin was terminated from employment with Yellow Freight and is currently employed by Pacific Delivery Service. On December 8, 1997, Mr. Frechin proceeded to the Yellow Freight terminal in Tukwila, Washington, to campaign for the Ron Carey Slate. He stood next to the locked employee walk-through gate and spoke to employees as they came out of the gate to go to their cars parked approximately 40 feet away. The gate is approximately 15 feet from a public sidewalk. It is undisputed that the protester remained outside of the gate for the entirety of his visit to the facility. All of the workers with whom he spoke were off duty.
Douglas Frechin
January 22, 1998
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Approximately ten minutes after Mr. Frechin began to campaign, Yellow Freight Operations Supervisor Dan Hazard arrived and stated that the protester was trespassing and would have to leave. Mr. Frechin responded that he was campaigning and then requested clarification from Mr. Hazard as to whether all individuals were prohibited from campaigning in the parking lot. Mr. Hazard replied that just the protester was prohibited from campaigning due to his status as a terminated employee. Mr. Frechin then left the parking lot.
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. However, that section also states that “the rights are presumptively available notwithstanding any employer rule or policy to the contrary”.
The United States 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:
[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:
Douglas Frechin
January 22, 1998
Page 1
[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).
In summary, the text of the rule, as approved and described by the District Court, leads to three important conclusions that guide the Election Officer’s analysis. First, the limited-access rule is fully enforceable against employers because of the importance of the right to campaign on employer property. Second, the rule contains carefully designed limitations to minimize the intrusion on the legitimate operations of the employer. Third, the burden is on an employer to demonstrate to the Election Officer that further restrictions on the right-of-access are warranted based on the employer’s specific circumstances.
Although the District Court left no doubt of the Election Officer’s power and authority to find employers of IBT members in violation of the Rules where warranted, the Election Officer has nevertheless adopted a policy of seeking, where possible, to negotiate resolutions of access protests without adjudication. In some cases, where employers have raised specific, justifiable concerns regarding parking-lot access, the Election Officer has agreed to minor additional procedures governing access within the framework of the Rules. However, it is within the Election Officer’s discretion to refuse to agree to such restrictions where the goals of the Rules will not be served. Where an employer cannot justify a restriction, the Election Officer has refused to permit it. See Carlucci, P-916-LU705-CHI (September 23, 1996) (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) (providing access to another parking lot at the facility because it would interfere less with business operations).
Douglas Frechin
January 22, 1998
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Yellow Freight’s stated reasons for restricting Mr. Frechin’s access do not overcome the presumption contained in the rule. Yellow Freight argues that denying access to Mr. Frechin is proper due to his discharge from the company for alleged dishonesty. However, Yellow Freight provides no explanation of how Mr. Frechin’s access to the parking lot would disrupt operations or pose a security problem.
The Election Officer has previously found in Hoffa, P-784-LU282-NYC (June 14, 1996), that speculation as to a possible problem does not warrant the curtailment of important, protected rights, under the Rules. If trouble arises, the employer may then order a campaigner to leave the property or take other appropriate action.
Yellow Freight further argues that its action in barring Mr. Frechin will not “materially inhibit the meaningful exercise of democratic rights of union members, nor will it restrict members’ ability to become informed about candidates, since other supporters will still be allowed access to the same parking lot.” Regardless of the fact that other IBT members will continue to have access to the parking lot, the Election Officer finds that Yellow Freight has improperly imposed significant limitations on an individual IBT member’s rights.
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. Yellow Freight shall immediately cease and desist from denying Mr. Frechin access to its facility parking lot.
2. Within two (2) working days of receipt of this decision, Yellow Freight will submit an affidavit to the Election Officer in which it acknowledges 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 (1) 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:
Douglas Frechin
January 22, 1998
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 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
MGC:chh
cc: Kenneth Conboy, Election Appeals Master
Christine M. Mrak, Regional Coordinator