October 5, 1998
VIA FIRST CLASS MAIL
John F. Youngerman
October 5, 1998
Page 1
John F. Youngermann
2033 Willow Trail
St. Charles, MO 63303
Steve Pelke, Operations Manager
SuperValu
7100 Hazelwood Avenue
Hazelwood, MO 63042
Ethel Brumfield, Security
SuperValu
7100 Hazelwood Avenue
Hazelwood, MO 63042
Tom Leedham
c/o Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
Robert Stewart, Esq.
McMahon, Berger, Hanna, Linihan,
Cody & McCarthy
2730 North Ballas Road, Suite 200
P.O. Box 31901
St. Louis, Missouri XXX-XX-XXXX
Arthur Z. Schwartz, Esq.
Kennedy, Schwartz & Cure
113 University Place
New York, NY 10003
Jim Powell
200 St. Benedict Lane
Florissant, MO 63033
Terry W. Meadows
3040 Turpin Road
Decatur, IL 62521
Kevin Loos
Human Resources Director
SuperValu
7100 Hazelwood Avenue
Hazelwood, MO 63042
John F. Youngerman
October 5, 1998
Page 1
Re: Election Office Case No. PR-256-LU688-NCE
Gentlepersons:
John F. Youngerman
October 5, 1998
Page 1
John F. Youngerman, a member of Local Union 688, 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 SuperValu, its Operations Manager, Steve Pelke, and a security guard, Ethel Brumfield. The protester alleges that on August 25, 1998, Tom Leedham, a candidate for general president, and his supporters, Jim Powell, Terry Meadows, and the protester, were denied access to SuperValu’s employee parking lot during a shift change by Ms. Brumfield and Mr. Pelke, in violation of the Rules. In light of the Leedham campaign’s limited budget, the protester requests the Election Officer to order SuperValu to reimburse the campaign for Mr. Leedham’s airfare to campaign at its warehouse in Hazelwood, Missouri.
The protest was investigated by Regional Coordinator Judith E. Kuhn.
The protester and Mr. Powell allege that the following occurred. On August 25, 1998, Mr. Leedham and his supporters attempted to gain access to SuperValu’s employee parking lot to campaign and to distribute flyers during a shift change. Ms. Brumfield refused to grant them access without first receiving approval from SuperValu’s management. The supporters presented Ms. Brumfield with the letter from the Election Officer to Mr. Leedham certifying his status as a nominated candidate and the summary of the Rules provisions regarding candidate’s “Limited Right of Access to Employer Premises.” Ms. Brumfield still denied access to the lot and informed Mr. Leedham and his supporters that they would have to speak with Mr. Pelke about the matter.
Soon thereafter, employees began leaving and entering the parking lot during the shift change.[1] At this point, Mr. Leedham and his supporters attempted to distribute campaign leaflets outside the gate on a long driveway as employees drove their cars in and out of the parking lot. While the Leedham campaign was distributing leaflets to employees in their cars, Mr. Pelke arrived. Without identifying himself, Mr. Pelke approached Mr. Meadows and repeatedly asked him what he was distributing. Since Mr. Meadows did not respond to Mr. Pelke’s questions, the protester tried to give Mr. Pelke a copy of the leaflet. Mr. Pelke ignored the protester and angrily told Mr. Meadows to leave the property. Mr. Leedham and the other supporters attempted to explain their right to the employee parking lot for purpose of campaigning, but Mr. Pelke responded that he was aware of the rules. During this exchange with the supporters, Mr. Pelke told Ms. Brumfield to call the police.
John F. Youngerman
October 5, 1998
Page 1
When the police officer arrived, Mr. Pelke asserted that Mr. Meadows had acted improperly. Mr. Leedham and his supporters tried to explain to the police there was no wrongdoing on their part and showed the officer Mr. Leedham’s certification letter from the Election Officer and the summary of the Rules regarding access to employee parking lots. After these discussions with the police, Mr. Pelke stated that Mr. Leedham and his supporters could have access to the employee parking lot in the future, but advance notice would have to be provided to the guards. At this point, even though Mr. Powell understood that Mr. Pelke was willing to grant access to the parking lot, Mr. Leedham and his supporters left since the shift change was over and most of the employees had entered the warehouse.
During the investigation, SuperValu maintained that it did absolutely nothing improper; that the campaigners were not deprived of access since they were eventually permitted to campaign on the employee parking lot (albeit after the shift change when the employees had already entered the warehouse); and, that “any arguable delay in the campaigners’ need for instant gratification was directly attributable to their boorish behavior and to their failure to follow basic principles of commercial reasonableness, including, but not limited to advance notice and making an appointment.”
The Election Office attempted to resolve the protest; however, SuperValu
insists on requiring campaigners to provide advance notice of their intent to campaign on its properties.
Article VIII, Section 11(e)(iii) of the Rules provides:
[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/or 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).
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. Employers may also require reasonable identification to assure that a person seeking access to an employee parking lot is a candidate or other member entitled to such access.
John F. Youngerman
October 5, 1998
Page 1
The Election Officer notes that although Mr. Pelke eventually agreed to grant access to Mr. Leedham and his supporters to the parking lot after the police arrived, the Leedham campaign was deprived of a meaningful right to such access during the shift change when employees were leaving and entering the parking lot. Mr. Leedham and his supporters had to campaign outside the gate which prevented face-to-face contact and reduced campaign opportunities to brief encounters, if any, through the windows of vehicles. Such activity creates a greater potential for disrupting traffic and the legitimate business of the employer. See In re Eby, 96 - Elec. App. - 131 (KC) (March 19, 1996).
The Election Officer finds that SuperValu violated the Rules when it prevented Mr. Leedham and his supporters from entering the parking lot to campaign and to distribute election campaign leaflets to employees during the shift change. Mr. Leedham and his supporters’ activities were well within the scope of Section 11(e). Moreover, SuperValu’s current stance that requires, rather than requesting, advance notice is unacceptable and in direct violation of the Rules. SuperValu has not presented any evidence regarding exceptional circumstances that would merit the Election Officer’s consideration of imposing a reasonable advance notice exception. Shanahan, PR-185-LU856-PNW (September 22, 1998); Shanahan, PR-186-LU856-PNW (September 22, 1998); and, deVries, PR-296-LU705-EOH (October 1, 1998).
During the initial election, SuperValu resolved a case involving the denial of access to a SuperValu parking lots. In Dunn, P-1066-LU259-ENG (October 31, 1996), the Election Officer set out SuperValu’s agreement:
SuperValu has informed the Election Officer that it will permit parking lot access at the facility in question, in accordance with the Rules. SuperValu also has agreed to permit campaigners access to all SuperValu locations, so long as campaigners do not block ingress or egress to a facility, and that no safety hazards are created. SuperValu also has agreed to post a statement at all facilities stating that SuperValu will permit all IBT members the right to support any candidate of their choice free from threats and intimidation.
Therefore, the Election Officer finds that SuperValu violated the Rules and breached the agreement entered into in Dunn, P-1066-LU259-ENG (October 31, 1996) when it prevented Mr. Leedham and his supporters from entering the parking lot to campaign and to distribute election campaign leaflets to employees during the shift change. Mr. Leedham and his supporters’ activities were well within the scope of Section 11(e) and the limitations set forth therein.
Accordingly, the protest is GRANTED.
John F. Youngerman
October 5, 1998
Page 1
When the Election Officer determines that the Rules have been violated, he “may take whatever remedial action is appropriate.” 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 SuperValu to immediately permit campaigning in the employee parking lots at all of its facilities where it employs IBT members in compliance with its prior decision in Dunn, supra. This grant of access will be limited only by the conditions set forth in Article VIII, Section 11(e) of the Rules. Further, by October 10, 1998, SuperValu will submit an affidavit to the Election Officer in which it acknowledges its compliance with this decision. 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. The Election Officer is not ordering SuperValu to reimburse the Leedham Campaign for Mr. Leedham’s airfare.
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 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
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
Judith E. Kuhn, Regional Coordinator
[1]SuperValu has a total of approximately 300 - 400 employees who work in three buildings on several shifts. Each building has an employee parking lot. The protester stated that he distributed leaflets to SuperValu employees in a different parking lot a couple weeks prior to this incident without any problems.