Protest Decisions

              September 23, 1998

VIA FACSIMILE AND FIRST CLASS MAIL

Mauricio Terrazas

September 23, 1998

Page 1

Mauricio Terrazas

3800 Bradford Street, #233

La Verne, CA 91750

Via UPS Overnight

Raul Rodriguez, Jr.

13882 Stagecoach Circle

Victorville, CA 92392

Via UPS Overnight

Amos Cretean, Operations

USA Waste Services, Inc.

407 E. El Segundo Blvd.

Compton, CA 90224

Fax: (310) 763-6780

Raul Lopez

Secretary-Treasurer

Teamsters Local Union 396

880 Oak Park Road, Suite 200

Covina, CA 91724

Fax: (626) 915-3635

Tom Leedham Campaign Office

P.O. Box 15877

Washington, DC 20003

Fax: (202) 544-3388

Arthur Z. Schwartz, Esq.

Kennedy, Schwartz & Cure

113 University Place

New York, NY 10003

Fax: (212) 258-0207

Robert Kikuchi, President

Teamsters Local Union 396

880 Oak Park Road, Suite 200

Covina, CA 91724

Fax: (626) 915-3635

Bill Arlington

USA Waste Services, Inc.

800 S. Temescal Street

Corona, CA 91711

Fax: (909) 272-0438

Susan Piller, Esq.

Senior Vice President, Employee Relations

USA Waste Services, Inc.

1001 Fannin, Suite 4000

Houston, TX  77002

Fax: (713) 209-9716

Mauricio Terrazas

September 23, 1998

Page 1

Re: Election Officer Case Nos.              PR-226-LU396-EOH

PR-232-LU396-EOH

Gentlepersons:

Mauricio Terrazas

September 23, 1998

Page 1

Two related pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”). Mauricio Terrazas, a member of Local Union 63, filed a protest (PR-226) against Raul Lopez, the secretary-treasurer of Local Union 396, Amos Cretean, Operations Manager at USA Waste Services, Inc. (“USA Waste”), and USA Waste.  Raul Rodriguez, a member of Local Union 630, filed a protest (PR-232) against Local Union 396, Bob Kikuchi, president of Local Union 396, and Bill Arlington, a representative of USA Waste.

In PR-226, Mr. Terrazas alleges that Mr. Cretean, the operations manager of the USA Waste facility in Compton, California violated the Rules when he prohibited the protester from campaigning in the company parking lot.  He further alleges that Mr. Lopez violated the Rules by informing Mr. Cretean that only Local Union 396 officials should be allowed access to the company parking lot.

Mr. Cretean never returned the calls made by the Election Office investigator.  The regional vice-president of USA Waste in charge of the Compton facility, Bill Fattio, admitted that access had been denied to Mr. Terrazas and stated that access to the employee parking lot will continue to be denied to any non-employer.  Mr. Lopez denied the allegation.

In PR-232, Mr. Rodriguez alleges that Mr. Arlington, manager of the USA Waste facility in Corona, California violated the Rules when he prohibited the protester and three other members from campaigning in the company parking lot.  He further alleges that Mr. Kikuchi violated the Rules by informing the Corona Police Department that any member seeking access to an employer’s parking lot needed to get the permission of both the employer and Local Union 396.

Mr. Arlington admitted denying access but contends that the campaigners were members of Teamsters for a Democratic Union (“TDU”) who had previously caused trouble during contract negotiations and consequently needed to be kept out of the facility.  In addition, he stated that they were blocking trucks from entering the facility and had not checked in with the employer prior to entering the parking lot.  Mr. Kikuchi denied the allegations.

Due to their related facts, the protests were consolidated for decision by the Election Officer.  These protests were investigated by Election Office Staff Attorney Peter F. Gimbrère.

I.              The Compton Facility Incident

On August 13, 1998, Mr. Terrazas attempted to pass out campaign literature in support of Tom Leedham, a candidate for general president, in the employee parking lot of the Compton USA Waste facility.  After he had begun distributing campaign literature, Mr. Cretean confronted him and told him to leave the parking lot.  According to Mr. Terrazas, Mr. Cretean stated that “Raul Lopez told me to tell you that you should campaign in the park like you are doing at all the other facilities.”  When the protester attempted to inform Mr. Cretean about the right of members to campaign, Mr. Cretean stated that Mr. Lopez had ordered the company not to allow anybody access to the parking lot except business agent Cipriano Colin and other business agents from Local Union 396.  Mr. Terrazas then left the facility.

Mauricio Terrazas

September 23, 1998

Page 1

Mr. Lopez denies ever talking to Mr. Cretean or giving such an order to USA Waste or any other employer.  He added that due to the fact that the Compton facility parking lot is in a “rough area” of town, the standard practice for Local Union 396 representatives is to call ahead prior to visiting the facility.  He went on to state that the “protocol” since the beginning of the 1996 Officer Election process has been for union members from outside of the local area to call Local Union 396 to advise them that they will be campaigning prior to arriving at an employer’s facility.  Mr. Lopez admitted that while this practice is not a written policy or rule of Local Union 396, it is a custom that is practiced by “all other campaigners except TDU members.”

II.              The Corona Facility Incident

On August 14, 1998, Mr. Rodriguez, Mr. Terrazas, Maria Martinez, a candidate for Western Region vice-president and a member of Local Union 556, and Vera Cook, a member of Local Union 63, entered the parking lot of USA Waste at Corona, California  and attempted to distribute campaign literature.  The group was approached by Mr. Arlington who informed them that they must leave the premises since they were “TDU” and did not represent the employees, had not checked in, and were blocking truck access to the facility.  Mr. Rodriguez denied blocking the traffic and attempted to inform Mr. Arlington of their right to campaign in parking lots.  When Mr. Arlington insisted again that they leave or the police would be called, the protester asked him to call the police so that “we could get this problem solved.”

When several members of the Corona Police Department arrived, Mr. Rodriguez gave Officer Tambouis, a copy of the Election Office Advisory on the Limited Right of Access to Employers Premises.  After discussing the matter with Mr. Arlington, Officer Tambouis called Mr. Kikuchi at Local Union 396 in order to better understand the right of access.  According to Mr. Kikuchi, he told Officer Tambouis the following:

1)                  the campaigners could be in the parking lot as long as the lot was set off from the rest of the facility but if there was no fence between the parking lot and the facility, the campaigners should be on the sidewalk for insurance and safety reasons;

2)               if it was unsafe, it was up to the officer to decide; and

3)               the policy with all companies is that campaigners will get in touch with the local union as a courtesy beforehand.

Mr. Kikuchi specifically denied ever stating that the campaigners had to get permission from both the employer and Local Union 396 prior to accessing parking lots.

Officer Tambouis told the investigator that when he arrived, access to the facility was not blocked.  He reported that Mr. Kikuchi stated that “nobody had called me” prior to the campaigning, that “if the company did not want them there, they can be kicked off the property,” and that the campaigners “should have notified him.”

Mauricio Terrazas

September 23, 1998

Page 1

III.               Analysis

The protests arise under Article VIII, Section 11(e) of the Rules.  That section provides, in pertinent part: 

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 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); [and] (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.

These rights are available only during hours when the parking lot is normally open to employees; are not available to an employee on working time; and, do not extend to campaigning which would materially interfere with the normal business activities of the employer.  However, Section 11(e) provides that the

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.

(Emphasis added.)  An employer seeking to deny access to Union members in an employee parking lot may seek relief from the Election Officer at any time.  To rebut the presumption, an employer opposing access must demonstrate “to the Election Officer that access to Union members in an employee parking lot is neither necessary nor appropriate to meaningful exercise of democratic rights” in the course of the rerun election. Rules, Section 11(e); Eckstein, PR-208-AB-EOH (September 15, 1998) (appeal pending).

Mauricio Terrazas

September 23, 1998

Page 1

Section 11(e) balances the property interests of employers with the critical need of candidates to the IBT International officer election to campaign face-to-face with the membership.  When the Rules were promulgated, the Pepsi-Cola Company (“Pepsi”) (an employer of approximately 7,500 IBT members) objected to the access right defined by Section 11(e).  Pepsi argued that the rule contravened Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), in which the Supreme Court held that non-employees do not have the right to conduct union organizing campaigns on employer property unless there is no other reasonably effective access to that membership.  The District Court rejected Pepsi’s argument and approved Section 11(e).   The Court held that Lechmere was “inapposite” because that case construed Section 7 of the NLRA, and the NLRB’s administrative interpretations of that statute.  United States v. IBT (“1996 Election Rules Order”), 896 F. Supp. 1349, 1366 (S.D.N.Y. 1995), aff’d 86 F.3d 271 (2d Cir. 1996).  In contrast, because the Consent Decree (and not federal labor law) provided the basis for the Section 11(e) limited access rule, the Lechmere standard did not govern the question of access to employer property in the supervised IBT International officer election.  Id. 

Further, the District Court found that Section 11(e)’s  limited access rule was “both warranted and necessary” to the implementation of the electoral provisions of the Consent Decree and that its power to enforce the rule is firmly rooted in this Court’s authority pursuant to the All Writs Act. 1996 Election Rules Order, 896 F. Supp. at 1367. 

In an effort to resolve this protest,  Election Office representatives had several  conversations with Susan Piller, the senior vice-president of employee relations and counsel for USA Waste, and explained the Rules provision requiring employers to provide IBT members access to their employee parking lots for the distribution of literature or other campaign activities.  Ms. Piller argued that USA Waste is opposed to allowing any IBT members who are affiliated with TDU into their facilities' parking lots, especially during periods of contract negotiations.  During the last of these conversations, Ms. Piller agreed to submit USA Wastes’ position on campaign access to the Election Office by September 11, 1998.  However, no such statement was ever provided to the Election Office. 

Accordingly, USA Waste and its representatives have failed to  provide compelling evidence to rebut the presumption in Article VIII, Section 11(e) which guarantees access to the employee parking lots at its facilities for IBT members and candidates for purposes of, and in connection with, campaigning for the IBT International officer election.   This holding recognizes Section 11(e)’s presumption that parking lots are open to non-employee campaigning and that the employer bears the burden of showing that extraordinary circumstances require a different result.  See also, In re Saavedra, 96 - Elec. App. - 250 (KC) (October 10, 1996) (Granting protest and holding that Section 11(e) “imposes upon employer companies an obligation to afford access to their premises to union members seeking to distribute campaign literature and obtain support in . . . international elections.” ) id. at 2: Terrazas, P-825-LU63-CLA (July 11, 1996), aff’d, 96 - Elec. App. - 217 (KC) (July 22, 1996) (Granting protest and rejecting employer’s proposal to condition parking lot access on pre-screening of candidate literature and the signing of liability waivers because “the conditions would have a chilling effect on work site campaign activity, and as such, would substantially undermine the remedial purpose of the Election Rules, Consent Decree and Federal labor law.”) 96 - Elec. App. - 217 (KC) at 2.

Mauricio Terrazas

September 23, 1998

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Based on these facts, the Election Officer finds that USA Waste violated  Article VIII, Section 11(e) of the Rules by prohibiting access to the parking lots for the purpose of campaigning.[1]

With respect to Local Union 396, the Election Officer finds that Mr. Kikuchi improperly interfered with the members right of access to campaign by attempting to make that right contingent upon conditions not included in the Rules.  While no evidence conclusively establishes a role of Mr. Lopez in this interference, the existence of an informal campaign access “protocol” at Local Union 396 leads the Election Officer to find that Local Union 396 also has violated the Rules.

Accordingly, the protests are GRANTED.

When the Rules have been violated, the Election Officer “may take whatever remedial action is appropriate.”  Rules, 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)                  The officers and representatives of Local Union 396 and the representatives, managers and agents of USA Waste shall immediately cease and desist from interfering with the right of members to gain access to employee parking lots to campaign.

2)               USA Waste Services, Inc. shall permit campaigning in the parking lots of all USA Waste facilities where it employs IBT members.  This grant of access will be limited by the conditions set forth in Article VIII, Section 11(e) of the Rules.  Further, within forty-eight (48) hours of receipt of this order, USA Waste shall submit an affidavit to the Election Office in which it acknowledges its compliance with this decision.

Mauricio Terrazas

September 23, 1998

Page 1

3)               Within twenty-four (24) hours of the receipt of this decision, Robert Kikuchi, President of Local Union 396, and Raul Lopez, Secretary-Treasurer of Local Union 396, shall send the attached letter on Local Union 396 letterhead, with the attached Advisory on Limited Right of Access to Employer Premises, informing USA Waste Services, Inc. and all other employers where members of Local Union 396 are employed that they do not have to contact the local union in any manner when IBT members and candidates seek access to employee parking lots for the purposes of campaigning.

4)                  Within three (3) days of receipt of this decision, Local Union 396 shall post the attached “Notice to Local Union 396 Members” on the union bulletin boards at all of its employer sites and on the bulletin boards at the Local Union. 

5)                  Within one (1) day of posting this Notice, Local Union 396 shall send an affidavit to the Election Office showing 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 failure to comply with this directive will be investigated and brought promptly to the attention of the United States District Court for the Southern District of New York for enforcement.

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:

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, 444 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

cc:              Kenneth Conboy, Election Appeals Master

NOTICE TO LOCAL UNION 396 MEMBERS

In a recent decision, the Election Officer determined that Local Union 396 violated the Election Rules by improperly restricting the right of Teamster members to campaign in employee parking lots for candidates in the IBT International Officer Rerun Election.  We have been ordered to immediately cease and desist from informally requiring that any member planning such campaigning should contact Local Union 396 prior to arriving at an employer facility.

Every Teamster member should understand the right of access to employee parking lots that they enjoy for the purposes of campaigning.  The Rules state that employers must permit campaign access to parking lots in areas where employees park.  Specifically, 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.

You may need to check in with the employer and show Teamster identification upon arrival at a facility.  You do not need the permission of the Local Union prior to accessing an employee parking lot to campaign.  Any improper restriction of candidate or campaign supporter access violates the Rules.

Dated: __________________                                                        _____________________________

Bob Kikuchi, President

Teamsters Local Union 396

_____________________________

Raul Lopez, Secretary-Treasurer

Teamsters Local Union 396

This is an official notice required by Election Officer Michael G. Cherkasky which must remain posted for 60 consecutive days and must not be defaced or altered in any manner or be covered with any other material.

              “Letter to Employers in the Jurisdiction of Teamster Local Union 396"

              To be typed on Local Union 396 stationery

Dear Employer:

We have been ordered by Election Officer Michael G. Cherkasky to send this letter.  In a recent decision, the Election Officer determined that Local Union 396 violated the Election Rules by improperly restricting the right of Teamster members to campaign in employee parking lots for candidates in the IBT International Officer Rerun election.  We have been ordered to immediately cease and desist from informally requiring that any member contact Local Union 396 prior to engaging in campaigning at an employer facility or from requiring any employer to contact Local Union 396 prior to allowing access in employee parking lots for purposes of campaigning.

The Rules state that employers must permit campaign access to parking lots in areas where employees park.  Specifically, 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.

Permission or notification of Local Union 396 prior to accessing an employee parking lot to campaign is not required.  Any improper restriction of candidate or campaign supporter access violates the Rules.  As the attached Advisory makes clear, the Rules state that the employers must permit campaign access to parking lots in areas where employees park.  An employer may also be required to permit access to members to campaign within their facilities if access has previously been permitted in the past. 

If you have any questions regarding this Advisory, please contact the Election Officer at 444 North Capitol Street, NW, Suite 445, Washington, DC 20001; Telephone (800) 565-VOTE; Fax (202) 624-3525.

____________________________________

Robert Kikuchi, President

Teamsters Local Union 396

____________________________________

Raul Lopez, Secretary-Treasurer

Teamsters Local Union 396