September 23, 1998
VIA FIRST CLASS MAIL
Ken Mee
September 23, 1998
Page 1
Ken Mee
42356 Greenbrier Park Drive
Fremont, CA 94538
Michele Arancibia
Human Resource Manager
Lipton Company
1786 Ashby Road
Merced, CA 95344
Ken Mee
September 23, 1998
Page 1
Re: Election Office Case No. PR-243-LU287-PNW
Gentlemen:
Ken Mee, a member of Local Union 287 and a candidate for Western Region 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”) against Lipton Company (‘Lipton”). Mr. Mee alleges that on August 22, 1998, he was denied access to employee parking lot at Lipton’s Merced, California facility, when he arrived there to campaign.
Lipton responds that the employee parking lot is too small to accommodate all of the employees at the shift change, but it is willing to entertain an alternative arrangement to comply with the Rules.
This protest was investigated by Adjunct Regional Coordinator Paige Keys.
Ken Mee
September 23, 1998
Page 1
On August 22, 1998, the protester came to Lipton’s Merced facility to campaign. The protester arrived with a big sign on his trailer and demanded entry into the parking lot. Human Resources Manager Michele Arancibia told the protester that parking lot access was impractical and that the sign was impossible. Ms. Arancibia showed Mr. Mee areas on either side of the entrance and suggested he campaign there. After again insisting that he obtain entrance to the employee parking lot, the protester left.
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. An employer may require reasonable identification.
An employer may rebut the presumption under Article VIII, Section 11(e) “by demonstrating 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 discussions with the Adjunct Regional Coordinator, Lipton expressed its willingness to fully comply with the Rules, but contends that its parking lot is too small to accommodate campaign activity. Ms. Arancibia explained that employees arriving at work park across the driveway from the employee parking lot in the truck staging area until employees from the previous shift have left the employee parking lot, then the employees on the current shift move their cars. This congestion is exacerbated by the fact that the employee parking lot is in a fenced area, inside the plant property, which itself is surrounded by a fence. The Adjunct Regional Coordinator reviewed maps of the site and agrees that parking lot campaigning is difficult at this employer.
Nevertheless, Lipton has agreed to permit campaigning at the one entrance to the Merced plant. The campaign area would be on both sides of the entrance. The Election Officer agrees that this site on the property provides ample room for campaigning. Lipton has stated however that there is not enough room for Mr. Mee’s truck with the sign. The Election Officer reminds Mr. Mee that in Mee, P-835-IBT-CLA, the Election Officer stated:
Ken Mee
September 23, 1998
Page 1
The limited-access rule has been designed to infringe upon any employer’s property rights only to the extent necessary to implement the goals of the Consent Decree providing for supervision of the delegate and International officer elections. In United States v. IBT, No. 88 Civ. 4486 (S.D.N.Y. August 22, 1995), the court approved the limited-access rule, finding it “crucial to the achievement of a free, fair, and democratic election process.” Id., slip op. at 42. This right, however, does not extend to the right of access to trailers, tents or any other vehicles for campaigning. See Young, P-266-IBT- SCE (January 4, 1996).
The Election Officer finds that Lipton’s proposal satisfies the purposes of Article VIII, Section 11(e).
Accordingly, this protest is RESOLVED.
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
Paige Keys, Adjunct Regional Coordinator