IN RE: DONALD PETRITES,
Protest Decision 2000 EAD 41
Issued: October 24, 2000
OEA Case No. PR081604ME
Donald Petrites, a member of Local 115, 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 Pepsi-Cola Bottling Company ("PCBC"). The protester alleges that on August 10, 2000, PCBC improperly prevented Petrites from "gathering accreditation petition signatures on behalf of the Tom Leedham Slate from Local 830 members in the parking lot at their facility at Cornly Road & Roosevelt Boulevard in Philadelphia, Pennsylvania." The protest further alleges that on August 11, 2000, PCBC improperly prevented Petrites from "gathering accreditation petition signatures on behalf of the Tom Leedham Slate from Local 830 members in the parking lot at their facility on Crescent Boulevard in Pennsauken, New Jersey." Petrites alleges that PCBC's conduct violates Article VII, Section 11(e) of the Rules.
Election Administrator representative William B. Kane investigated the protest.
Findings of Fact
Walt Deminski is a member of IBT Local 115. At 4:05 p.m. on August 10, 2000, Deminski arrived at PCBC's facility located on Roosevelt Boulevard in Philadelphia. IBT Local 830 represents employees at that facility. He met the protestor's wife, Helen Petrites (a non-IBT member), and proceeded to the employee parking lot, where they both sought employee signatures on petitions for the Tom Leedham slate.
The pair continued their activity in a non-disruptive fashion for ten minutes, and during that time received two pages of petition signatures. Then, a white female employee in business clothing came from inside the employer's building and asked them what they were doing. They explained that they were soliciting signatures from IBT members for the Leedham slate in the upcoming IBT elections. The woman returned inside the building.
A short time later, she returned. She then told the pair that they should take their petition forms to IBT Local 830, which would distribute the petitions to employees. They refused. The woman then asked the pair to leave the parking lot or she would call the police. They departed the parking lot without incident, with Donald Petrites arriving (with the intention of joining them in their activity after they left) shortly thereafter. In the street off the employer's property, the three discussed what had happened. They decided not to seek any further petition signatures in the parking lot.
During the investigation of this matter, the investigator twice attempted to contact the plant manager of the PCBC Philadelphia facility. Management failed to return the investigator's calls.[1]
At 7:00 a.m. on August 11, 2000, Petrites arrived in the parking lot at the Pennsauken facility of Pepsi-Cola & National Brands Ltd. ("PCNBL"). His wife accompanied him. They entered the parking lot together without being questioned. They began soliciting petition signatures, and collected between 200 and 300 signatures in a 30-minute period.
Then, a white male in a suit approached and told them that they had to leave, as their presence (as non-employees of PCNBL) was against company policy. The man presented himself as a representative of PCNBL. They left the property.[2]
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 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 elections conducted pursuant to the Consent Order[3]. These campaign rights apply "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." Further, these rights "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."[4]
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." This presumption, however, may be rebutted by the employer's demonstration "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." Further, "[a]n employer seeking to deny access to Union members in an employee parking lot 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.
We find that PCBC violated these provisions of the Rules here. PCBC's denial of parking lot access is undisputed. Nor is there any evidence that the protestor's presence in the PCBC employee parking lot interfered with or disrupted PCBC's operations in any way. The employees with whom the petitioners were attempting to interact were those either on their way to or from work or on break. Such access is precisely the kind of campaign activity permitted by the Rules.
Accordingly, the protest is GRANTED as to PCBC.
During the investigation, PCNBL agreed through its counsel to grant IBT members their access rights under the Rules to PCBNL's employee parking lots. Based upon this agreement, to the extent this protest states a claim against PCBNL with respect to its Pennsauken, New Jersey facility, that claim is deemed RESOLVED.
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 PCBC 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, 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
William B. Kane
2000EAD41
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
Stanley Israel
46-00 Fifth Street
Long Island City, NY 11101
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Teamsters Local 115
2833 Cottman Ave.
Philadelphia, PA 19149
Teamsters Local 830
12298 Townsend Rd.
Philadelphia, PA 19154
Donald Petrites
4723 Vista Street
Philadelphia, PA 19136
Pepsi-Cola Bottle Company
Attn: Pancho Hall
11701 Roosevelt Rd.
Philadelphia, PA 19154
Pepsi-Cola & National Brands Ltd.
Attn: Robert Brockway
8275 U.S. Rt. 130
Pennsauken, NJ 08110
[1] Given PCBC's non-participation in the investigation of this case, no employer claim of special circumstances justifying limitations on campaign access to employee parking lots was presented. Nor does this case present an employer claim that campaign access to its employee parking lots is unnecessary or inappropriate to the meaningful exercise of democratic rights in the course of the 2000-2001 election.
[2] When Petrites filed this protest, he believed that both facilities that are the subject of this protest were owned by the same entity. As indicated in text, the two facilities are separately owned and managed.
[3] 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.
[4] 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."