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IN RE: ERIK JENSEN, Erik Jensen, a member of Local 320, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"), against Fleming Food Company ("FFC"). The protestor alleges that FFC violated his right under Article VII, Section 11(e) of the Rules to limited campaign access to FFC’s employee parking lot at its warehouse facility on Marshall St. N.E. in Minneapolis. Election Administrator representative Dennis Sarsany investigated the protest. Article VII, Section 11(e) of the Rules states that "candidate[s] 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." Section 11(e) further provides that "candidate[s] 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 [IBT] members to park their vehicles in connection with their employment in said regional area(s)." IBT members have the reciprocal right under the Article VII, Section 11(e) of the Rules to be so solicited and to receive literature offered for distribution. These rights are available only in connection with campaigning during the 2000-2001 International Union delegate and Officer election conducted pursuant to the Consent Order[1]. Such campaigning must occur "only during times when the parking lot is normally open to employees" and "do not extend to campaigning which would materially interfere with the normal business activities of the employer." The rights guaranteed by Article VII, Section 11(e) "are not available to an employee on working time, [and] may not be exercised among employees who are on working time…" Additionally, the employer "may require reasonable identification to assure that a person seeking access to an employee parking lot pursuant to th[e] rule is a candidate or other [IBT] member entitled to such access." Article VII, Section 11(e) also provides that nothing in its provisions "shall entitle any candidate or other [IBT] member to access to any other part of premises owned, leased, operated or used by an employer or to access to a parking lot for purposes or under circumstances other than as set forth herein."[2] These limited access rights are "presumptively available, notwithstanding any employer rule or policy to the contrary, based upon the Election Administrator’s finding that an absence of such rights would subvert the Consent Order’s objectives of ensuring free, honest, fair, and informed elections and opening the Union and its membership to democratic processes." An employer however may rebut this presumption "by demonstrating to the Election Administrator that access to Union members in an employee parking lot is neither necessary nor appropriate to meaningful exercise of democratic rights in the course of the 2000-2001 election…[, and] may seek relief from the Election Administrator at any time." The limited-access rule is a necessary infringement upon employer property rights, and is limited so that such rights are infringed upon only to the extent necessary to implement the Consent Order goal of providing for "free, fair and democratic election[s]." United States v. IBT, 896 F. Supp. 1349, 1367 (S.D.N.Y. 1995), aff’d, 86 F.3d 271 (2d Cir. 1996). There, Judge Edelstein approved the limited-access rule, finding it "crucial to the achievement" of such an election process. Id. at 1367. After discussion with the Office of the Election Administrator, FFC has agreed (as it has in past elections) to honor Article VII, Section 11(e) at its facilities and to resolve this protest by allowing IBT members their limited right to access to its employee parking lots in a manner consistent with the provisions and limitations of Article VII, Section 11(e) of the Rules. Specifically, FFC representative Terry Ruby has agreed that FFC will not deny campaigners access to portions of the FFC property convenient to the employee entrances to the Minneapolis warehouse, so long as the campaigners check in with company security prior to campaigning, provide sufficient identification (including their union cards), and otherwise comply with the limits placed by the Rules on parking lot access for campaign purposes. These conditions are consistent with Article VII, Section 11(e) of the Rules. Under these circumstances, the Election Administrator concludes that further processing of this protest is unwarranted. The protester’s complaint has been addressed and the relief requested has been achieved. Accordingly, this protest is RESOLVED. Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Administrator. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon: Kenneth Conboy Election Appeals Master Latham & Watkins Suite 1000 885 Third Avenue New York, New York 10022 Fax: 212-751-4864 Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, c/o International Brotherhood of Teamsters, 25 Louisiana Ave., NW, Washington, DC 20001, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr. William A. Wertheimer, Jr. Election Administrator cc: Kenneth Conboy Dennis Sarsany 2000EAD37 DISTRIBUTION LIST VIA FFC NEXT DAY AIR:
Patrick Szymanski IBT General Counsel 25 Louisiana Ave. NW Washington, DC 20001
Bradley T. Raymond Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman 32300 Northwestern Highway Suite 200 Farmington Hills, MI 48334
J. Douglas Korney Korney & Heldt 30700 Telegraph Road Suite 1551 Bingham Farms, MI 48025
Barbara Harvey 645 Griswold Penobscot Building Suite 1800 Detroit, MI 48226
Tom Leedham 18763 South Highway 211 Molalla, OR 97038
Betty Grdina Yablonski, Both & Edelman Suite 800 1140 Connecticut Ave. N.W. Washington, D.C. 20036
Erik Jensen 4345 11th Ave. South Minneapolis, MN 55407
Terry Ruby Fleming Food Company 3501 Marshall Street, N.E. Minneapolis, MN 55418
Pamela Hutton Special Counsel American Security Corporation 1717 University Avenue St. Paul, MN 55104
IBT Local 120 2635 University Ave. West Suite 120 St. Paul, MN 55114
IBT Local 320 3001 University Avenue S.E. Minneapolis, MN 55414 [1] The “Consent Order” as that term is used in the Rules means “the March 14, 1989 agreement approved by the [United States District] Court [for the Southern District of New York, the Honorable David N. Edelstein presiding, and] entered into between and among the United States Government, the International Union and others in the case of United States of America v. International Brotherhood of Teamsters, et al., 88 Civ. 4486 (DNE)(S.D.N.Y.), as amended, and all subsequent opinions, rulings and orders interpreting it.” Rules, Definition 8. [2] Separately, Article VII, Section 11(f) of the Rules provides that “an employer’s discrimination in permitting access to its property shall constitute an improper contribution to the candidate(s) who benefit from such discrimination.”
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