November 12, 1998
VIA FIRST CLASS MAIL
Ruscigno
November 12, 1998
Page 1
Michael Ruscigno
42 West 23 Street, Apt. B2
Bayonne, New Jersey 07002
Greg Roth
Director of Warehousing
A & P Fresh Town
2220 91Street
North Bergen, NJ 07047
Arthur Z. Schwartz, Esq.
Kennedy, Schwartz & Cure
113 University Place
New York, NY 10003
Tom Leedham
c/o Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
Ruscigno
November 12, 1998
Page 1
Re: Election Office Case No. PR-360-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”) alleging that on October 27, 1998, A&P Fresh Town prohibited him and other supporters of Tom Leedham, a candidate for general president, from campaigning in the employee parking lot at its distribution center during a shift change, in violation of the Rules.
The protest was investigated by Election Office Staff Attorney Kathryn A. Naylor.
The facts are not in dispute. On October 27, 1998, around 3:30 p.m., the protester, and fellow Leedham supporters Selma Marks and Maria Figeroa arrived at the A&P Fresh Town facility in the Bronx, New York, to campaign and to distribute literature in the parking lot. The protester checked with the security guard on duty and informed him that they intended to distribute literature supporting Mr. Leedham in the IBT International Officer Rerun Election. The protester also gave the security guard a copy of the Election Officer’s letter to Mr. Leedham that certified Mr. Leedham’s status as a candidate with the right to access employer parking lots to campaign. The protester and other Leedham supporters were allowed access to the parking lot and they campaigned for approximately 15 minutes to A&P employees on the first shift who were leaving the facility. The protester states that one of the employees on the first shift told him that the second shift would start in approximately an hour at 4:30 p.m.
Ruscigno
November 12, 1998
Page 1
The campaigners left the parking lot and returned around 4:15 p.m. The same security guard was on duty and allowed the campaigners access to the parking lot. Soon thereafter, the guard approached the campaigners, asked them what they were doing and requested the protester to speak with someone on the phone in the guard shack. The protester claims that the person on the phone asked him what he was doing and the protester repeated what he had told the guard initially regarding campaigning for Mr. Leedham. The person on the phone asked the protester whether his group was blocking anybody or anything. After the protester replied no, the unknown person said okay and the conversation ended. The protester returned to the parking lot. A few minutes later, the security guard approached the campaigners and told the protester that they did not have a right to be in the lot and would have to leave. The protester asked to speak with the guard’s supervisor to explain their rights under the Rules. The supervisor escorted the campaigners inside the warehouse, and once inside, the protester claims that a supervisor rushed towards them. The supervisor said that they would have to leave the premises and that they were disrupting production. The protester tried to explain the Rules to the supervisor, but he responded that he did not care about any letter or the Rules and insisted that they leave the premises entirely. The security guard escorted the campaigners off the property.
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.
The investigator spoke with Gregg Roth, Director of Warehousing and Distribution for the A&P facilities in the Bronx and North Bergen, New Jersey. Mr. Roth stated that he had been informed that IBT members were campaigning in the parking lot of the Bronx facility, but was not aware of any problems or that the campaigners had been ultimately denied access to the parking lot. Mr. Roth stated that he was familiar with the Rules and that A&P would comply with the Rules, and that he would discuss the parking lot access provisions with his supervisors at the Bronx facility and post a copy of the Advisory on Limited Right of Access to Employer Premises in the guard shacks. Any members or candidates who encounter problems in gaining access to the parking lot to campaign as provided by the Rules, should contact Gregg Roth at (201) 662-4700 or ask the security guard on duty to have him paged.
Accordingly, the Election Officer is satisfied that the protest has been RESOLVED.
Ruscigno
November 12, 1998
Page 1
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