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Michael Ruscigno, George Saavedra and Jack Mandaro, members of Locals 802, 490 and 95, respectively, filed pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") against Anheuser-Busch Companies, Inc. ("A-B"). The protesters allege that on August 10, 11, 15 and 18, 2000, A-B improperly prevented the protestors and other IBT members from gathering accreditation petition signatures from IBT members in the parking lots at A-B’s facilities in Newark, New Jersey, Fairfield, California and Williamsburg, Virginia. The protestors allege that A-B’s conduct violates Article VII, Section 11(e) of the Rules.

Election Administrator representatives William W. Thompson II, Chris Mrak and J. Griffin Morgan investigated the protests.

It is undisputed that on August 10 and 11, 2000, A-B representatives denied employee parking lot access to Ruscigno and Local 463 member Mike Masterson at its Newark, New Jersey facility. Similarly, it is undisputed that on August 15, 2000, A-B representatives denied employee parking lot access to Saavedra at its Fairfield, California facility. Finally, it is undisputed that on August 18, 2000, A-B representatives denied employee parking lot access to Mandaro at its Williamsburg, Virginia facility. A-B maintains twelve brewery facilities throughout the United States at which it employs IBT members.

On October 6, 1998, in Eckstein, P208, the Election Officer issued a protest decision in which he approved an agreement he had reached with A-B that provided as follows:

· The Election Officer would provide A-B with a list of all IBT candidates in the Rerun Election;

· Access to A-B’s employee parking lots at its 12 breweries would be granted only to IBT candidates in the Rerun Election, any Credentialed Representative, and any IBT member campaigning for a candidate in the Rerun Election if the member was from the IBT region for which the candidate was seeking office (for all offices except Regional Vice-Presidents, the IBT region was agreed to be the United States and Canada), with no right of any campaigner to use video cameras or other recording equipment on A-B property;

· The access granted was for the sole purpose of distributing campaign literature and/or soliciting support in connection with the Rerun Election, with A-B reserving its right to exclude any person engaging in any other activities not covered by the Election Rules, including but not limited to directly addressing A-B’s current labor dispute with the IBT in a manner intended to implicate that dispute;

· Campaigners provided access were required to provide as much advance notice as possible before their campaign activity, with notice to be provided to the targeted brewery’s Human Resources office during regular business hours on the day prior to the intended visit, and with such notice to state the approximate number of persons for whom such access is sought;

· Campaigners were required to present reasonable identification to A-B’s security personnel to assure that access is appropriate;

· Access granted was to be for a reasonable period of time during and around employee shift changes and other non-work times during which A-B employees were permitted to be in the parking lot;

· The agreed grant of access was without waiver of A-B’s rights under the Election Rules, its right to appeal a related decision of the Election Appeals Master and its right to implement another policy as a result of final adjudication of that appeal.

The Election Administrator is engaged in ongoing efforts to reach a similar resolution with A-B during this election cycle, but such a resolution has not been reached as of the issuance of this decision. A-B has expressed its concern that its labor relations with the IBT are currently unsettled, since A-B and IBT have not finalized collective bargaining agreements covering all of A-B’s twelve IBT-organized facilities, subjecting A-B to the possibility of labor strife until finalized agreements are reached. However, no evidence has been offered that access rights have been abused during this election cycle in a manner that interferes with A-B’s position in its ongoing labor dispute with the IBT.

Analysis and Conclusion

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 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]  The right to engage in such campaigning applies "only during times when the parking lot is normally open to employees" and "do[es] 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." Article VII, Section 11(e). 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." Id.

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.

We find that A-B violated these provisions of the Rules here.[3]  First, A-B’s denial of parking lot access is undisputed. Nor is there any evidence that the presence of IBT members in the A-B employee parking lots for IBT campaign purposes will interfere with or disrupt A-B’s operations. And while it is true that A-B’s labor relations with the IBT are presently not settled, there is no evidence at this stage, where access has so far been refused, that such access would result in disruption of A-B’s operations.[4]

Nor can we accept as consistent with the Rules the proposal of A-B that access not be granted until approval of the pending joint application by the District Court. The 2000-2001 election process is ongoing, with delegate elections already scheduled. Access is needed by candidates and their supporters during the period leading up to those elections, when the exercise of those rights is critical to the election process. The Election Administrator’s mandate is to enforce the Rules now, not at some undefined time in the future.

For the foregoing reasons, the protest is GRANTED.

Remedy

When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interfering with the election process. Based on the foregoing, the Election Administrator orders A-B to cease and desist from any denial of access to IBT members to its employee parking lots in violation of Article VII, Section 11(e) of the Rules.

An order of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73.

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, 727 15^th Street, NW, 10^th Floor, 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

William W. Thompson II

Chris Mrak

J. Griffin Morgan

DISTRIBUTION LIST VIA UPS 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. NW

Washington, D.C. 20036

Calvin Siemer

Skadden, Arps, Slate, Meagher

& Flom

Suite 220

525 University Ave.

Palo Alto, CA 94301

Michael Ruscigno

42 B2 W. 23d St.

Bayonne, NJ 07002

Jack Mandaro

7294 Merrimac Trail

Williamsburg, VA 23185

George Saavedra

845 Thetford Place

Fairfield, CA 94533