November 24, 1998
VIA FIRST CLASS MAIL
Michael Ruscigno
November 24, 1998
Page 1
Michael Ruscigno
42 West 23 Street, Apt. B2
Bayonne, New Jersey 07002
United Parcel Service
325 West Houston Street
New York, NY 10013
Tom Leedham
c/o 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
Gary M. Tocci, Esq.
Schnader, Harrison, Segal & Lewis
1600 Market Street
Philadelphia, PA 19103
Michael Ruscigno
November 24, 1998
Page 1
Re: Election Office Case No. PR-359-LU802-EOH
Gentlemen:
Michael Ruscigno, a member of Local Union 802, 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”). The protester alleges that United Parcel Service (“UPS”) removed him from the employee parking lot at one of its New York City facilities when he attempted to campaign, in violation of the Rules.
The protest was investigated by Election Office Staff Attorney Peter F. Gimbrère.
On October 30, 1998, the protester attempted to campaign for a candidate in the International Officer Rerun Election at the UPS facility located on West Houston Street in New York City. According to the protester, he was ordered off the property by Joseph Maniscala, the head of security at that facility.
Article VIII, Section 11(e) of the Rules states that “a candidate for delegate or alternate delegate and any member of the candidate’s Local Union may distribute literature and/or otherwise solicit support in connection with such candidacy in any parking lot used by that Local Union’s members to park their vehicles in connection with their employment . . . .”
Michael Ruscigno
November 24, 1998
Page 1
The “Advisory on Limited Right of Access to Employer Premises” sets forth Article VIII, Section 11(e) and outlines its restrictions. As noted in the advisory, the right of limited access is available “only during hours when the parking lot is normally open to employees.” The right is “not available to an employee on working time, may not be exercised among employees who are on working time and do[es] not extend to campaigning which would materially interfere with the normal business activities of the employer.”
As the Election Officer stated, “[t]he 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.
In a submission to the Election Office regarding the instant case, UPS noted “it abides by this [access] policy to the best of its ability” and that “to the extent that there has been any deviation from the above-mentioned [access] policy/practice . . . such deviations are inadvertent, and UPS will ensure that this policy will be maintained during the election period.” The Election Officer interprets this submission to mean that UPS will insure that IBT members are granted a right of access to the employee parking lot at the West Houston Street, New York City facility for campaign purposes, as provided by the Rules.
Under these circumstances, the Election Officer concludes that further processing of this protest is unwarranted. The protesters’ complaints as stated in this protest have been addressed, and the relief requested has been achieved.
Accordingly, this protest is now RESOLVED.
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
Michael Ruscigno
November 24, 1998
Page 1
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