January 26, 1999
VIA FIRST CLASS MAIL
Raul Alvarado
January 26, 1999
Page 1
Raul Alvarado
639 North Road
Walla Walla, WA 99362
Art Ramirez
1 W. Yakima Avenue
Track 29, #40
Yakima, WA 98902
Rich Jochum
Human Resources Director
Iowa Beef Processors
P.O. Box 515
Dakota City, NE 67831
Bruce Pautsch
Assistant Vice - President, Labor Relations
Iowa Beef Processors
P.O. Box 515
Dakota City, NE 67831
Lee Baczwaski, Plant Manager
Iowa Beef Processors
P.O. Box 4239
Pasco, WA 99302
Paul Alan Levy, Esq.
Public Citizen Litigation
Group
1600 20th Street, NW
Washington, DC 20009
Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
Arthur Z. Schwartz, Esq.
Kennedy, Schwartz & Cure
113 University Place
New York, NY 10003
Raul Alvarado
January 26, 1999
Page 1
Re: Election Office Case No. PR-310-LU556-EOH
Election Office Case No. PR-357-LU344-EOH
Gentlepersons:
Raul Alvarado
January 26, 1999
Page 1
These 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”). In PR-310-LU556-EOH, Raul Alvarado, a member of Local Union 556, alleged that Iowa Beef Processors (“IBP”) violated the Rules by having him arrested for campaigning in the employee parking lot at its Pasco, Washington facility. In PR-357-LU344-EOH, Art Ramirez, a member of Local Union 344, alleged that IBP attempted four times on October 23, 1998, to intercede or halt the distribution of literature at its Pasco, Washington facility, in connection with the International Officer Rerun Election, in violation of the Rules. The Election Officer deferred this protest for post-election review pursuant to his authority under Article XIV, Section 2(f)(2) of the Rules. Because these protests raise similar issues, they were consolidated for decision.
The protests were investigated by Protest Chief Mary E. Leary.
The investigation disclosed that on Friday, September 25, 1998, Mr. Alvarado, and two other IBP employees and IBT members went to the IBP facility in Pasco, Washington to campaign for the Tom Leedham “Rank and File Power” Slate (“Leedham Slate”).
The three campaigners arrived at the facility shortly before shift change with pamphlets, newspapers and bulletins of candidates in the International Officer Rerun Election to distribute to the employees. After they started leafleting, Security Guard Elena Martinez approached them. She asked Mr. Alvarado what he was doing there and told him that he should not be there because he was no longer working for IBP. According to Mr. Alvarado, Ms. Martinez knew him from his prior employment with the company. He told Ms. Martinez that he was only giving out campaign literature and not doing anything bad. He showed her the literature he was passing out. Ms. Martinez said, “okay” and went back into the plant.
IBP submitted sworn affidavits to the Protest Chief during the investigation. IBP however, refused to cooperate in this investigation by making its employees available for interviews or follow-up questioning. The employer’s stance frustrated and delayed this investigation.
Thus, the sworn affidavits are the only evidence from IBP. According to his statement, Randy Endicott, Assistant Personnel Manager, said that he and Plant Personnel Director Mark Hester were informed by Ms. Martinez that Raul Alvarado, a recently terminated employee, was on the property. Mr. Endicott stated that he and Mr. Hester instructed Ms. Martinez that “because Mr. Alvarado was no longer employed by the Company, she was to ask him to leave.”
According to Mr. Alvarado, Ms. Martinez returned and told Mr. Alvarado that “Mr. Hester says if you don’t leave he will call the police.” Mr. Alvarado states that he asked, “Why, I’m not doing anything wrong. I’m just involved with this campaign.” Mr. Alvarado stated that he had a right to be there. Ms. Martinez asked, “Does that mean you are not going to leave?” Mr. Alvarado said, “That’s right.” Ms. Martinez went back inside the plant. According to Mr. Endicott, “When Ms. Martinez told him that she would have to call the Sheriff’s office if he refused to leave, Mr. Alvarado told her that she would need to call the sheriff because he was not going to leave.”
Raul Alvarado
January 26, 1999
Page 1
Mr. Alvarado further stated that later when the police arrived, Ms. Martinez approached Mr. Alvarado with Mr. Hester. The police told Mr. Alvarado to stop campaigning and said “No More.” Mr. Alvarado inquired, “Why no more, no more, no more?” He continued distributing leaflets to workers. The police ordered another campaigner, Gabriel Alvarez, to stop, and he did. The police officer then told Mr. Alvarado to stop. The officer then asked the campaigners for their identification and they provided it. Ms. Martinez pointed Mr. Alvarado out as the police returned the identification to the campaigners. The police then tried to confiscate the campaign papers from Mr. Alvarado. Mr. Alvarado protested stating they were his papers. Then the officer said, “Alright, give me your hands.” Mr. Alvarado stated that he was arrested and beat up a little. He said that the handcuffs were too tight and he was hit on the head when he protested. He was detained for five hours. The charges were dismissed by local prosecuting authorities after the requirements of the Rules and the context of the IBT International Officer Rerun Election were explained.
Mr. Endicott stated that “at no time did Mr. Alvarado secure a pass prior to coming onto our property.” Further, IBP submitted a position statement which included, inter alia, the following:
IBP denies that it refused ANY employee access to its property for such a purpose. As the facts demonstrate, this situation was a clear case of an individual, recently terminated from IBP’s Pasco facility, who violated the clear “no trespass” signs posted at IBP’s parking lots, who 1) never requested permission to conduct campaigning at our site (nor even provided IBP with the courtesy of an explanation of his presence on the facility,) who 2) when confronted with his unauthorized access, failed to provide any justification for his presence, and specifically failed to present authorization for his presence (as required by the Election Rules).
Mr. Alvarado was employed by IBP from November 16, 1995 through September 14, 1998 and his termination is the subject of a grievance-arbitration proceeding. His discharge relates to an alleged three day absence with a failure to notify management. Thus, although IBP terminated Mr. Alvarado, his termination was being contested and he retained his IBT membership status.
The investigation disclosed that on Friday, October 23, 1998, Mr. Ramirez, Mr. Alvarado, Bob Hasegawa, a candidate for Western Region vice president, and Maria Martinez went to the IBP facility in Pasco, WA again to campaign on behalf of the Leedham Slate. The campaigners were allowed to distribute literature. Guards and management officials interrupted the campaigning on several occasions, however, by repeatedly requesting identification and proof of IBT membership. Mr. Hasegawa provided identification and proof of his IBT membership.
Mr. Ramirez provided identification but did not provide proof of union membership.
Mr. Alvarado provided neither form of proof. He was, however, known to IBP officials and guards because he had worked at the plant.
Raul Alvarado
January 26, 1999
Page 1
IBP contends that it has various signs located at the plant which state:
No admittance except for assigned employees and personnel of carriers who are engaged in authorized deliveries or pickups. Visitors must secure a pass at the plant office.
The company contends that the campaigners did not get a visitor’s pass as required by their policy. Article VIII, Section 11(e) of the Rules creates a limited right of access to IBT members and candidates to distribute literature and to 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”. (Emphasis added.)
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). The District Court reaffirmed the principle of presumptive access to parking lots for compliance purposes in, the United States v. IBT (Appeal of Anheuser-Busch, Inc.), 88 Civ. 4486 (DNE) (November 17, 1998), affirming, 98 Elec. App. 380 (KC) (September 25, 1998), affirming Eckstein, PR-208-AB-EOH and PR-217-AB-EOH (September 15, 1998).
While an employer can request identification from campaigners who seek access to its employee parking lots, the IBP clearly knew the identity of Mr. Alvarado and initially denied him access because he was recently terminated. Irrespective of his status as an employee of IBP, however, Mr. Alvarado retained his right to campaign in the employee parking lots because he was an IBT member in good standing. Similarly, the four individuals who were campaigning on October 23, 1998 had a right to do that free from IBP harassment. The repeated requests for identification and proof of the purpose of the visit to the parking lot were beyond reasonable requests for identification. In consideration of the foregoing, the Election Officer concludes that IBP violated the Rules by effectuating the arrest and removal of Mr. Alvarado from its employee parking lot when he and other members distributed campaign literature on September 25, 1998. IBP violated the Rules when it harassed and repeatedly interrupted Mr. Hasegawa, a candidate, and the IBT members while campaigning in its employee parking lot.
Raul Alvarado
January 26, 1999
Page 1
These matters are being considered in a post-election context. Therefore, the Election Officer will examine whether the violations “may have affected the outcome of the election.” As the Election Officer previously stated in Cheatem, Post-27-EOH (August 21, 1997),
[T]he Election Office concludes that this election is presumed to be fair and regular. Therefore, in order to grant a post-election protest, the evidence must overcome this presumption by demonstrating a violation of the Rules that may have affected the outcome of the election. This is consistent with DOL’s standard for certification of supervised elections.
Id. at 105.
Although IBP violated the Rules, some campaigners were allowed to distribute literature on both September 25 and on October 23, 1998. IBP made campaigning onerous and difficult, but the members did campaign. The violations, however, reflect wilful and deliberate decisions of IBP to intimidate IBT members in the exercise of their right to communicate about the election.
While the vote, tabulation and campaigning is over, the violation cannot pass unnoticed. Posting a notice of this violation will inform the IBT members of their rights and will provide guidance for employers in future elections that may be conducted using a Rules-based regimen. IBP is therefore directed to sign and post the attached Notice to Employees and IBT Members on all bulletin boards where employee notices are posted at its Pasco, Washington facility. However, the Election Officer concludes that the violations committed by IBP did not sufficiently affect the outcome of the International Officer Rerun Election. Accordingly, the protests are DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within three days 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
Raul Alvarado
January 26, 1999
Page 1
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 444 N. Capitol Street, 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 Employees of Iowa Beef Processors
The Election Officer determined that Iowa Beef Processors violated the Rules for the 1995-1996 IBT International Union Delegate and Officer 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 and by having Mr. Raul Alvarado arrested and removed from the parking lot while exercising his rights guaranteed by the Rules.
The Rules provided that employers must permit union members to campaign in parking lots where employees park. Specifically, Article VIII, Section 11(e) of the Rules created a limited right of access to IBT members and candidates to distribute literature and to seek support for their campaign in any parking lot used by union members to park their vehicles at work. While “presumptively available,” the right has limits. It is not available to any employee on working time, and is restricted to campaigning that will not materially interfere with an employer’s normal business activities. An employer was permitted to require identification and proof of union membership. The employer could not deny campaigners the right to campaign in the employee parking lots during the International Officer Rerun Election.
Because IBP improperly restricted Mr. Alvarado’s access to the parking lot by having him arrested and improperly restricted the right of Teamster members to campaign in employee parking lots during the recent International Officer Rerun Election, the Election Officer has ordered this Notice posted.
Dated: __________________ By:___________________________
______________________________
Title
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.