IN RE: CHARLES DUTY,
Protest Decision 2000 EAD 319
Issued: April 18, 2001
OEA Case No. PR110802MW
Charles Duty, a member of Local 714, 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 Elkay Manufacturing Company. ("EMC"). He alleges that EMC improperly denied IBT members the right to campaign on its employee parking lot, in violation of Article VII, Section 11(e) of the Rules.
Election Administrator representative Dennis Sarsany investigated the protest.
Findings of Fact
Duty alleges that in November 2000 EMC denied IBT members the right to campaign in its employee parking lots. This campaign activity, however, concerned the local union's officer elections, to which Article VII, Section 11(e) does not apply. Accordingly, we DENY the protest as to that allegation.
Insufficient candidates were nominated in Local 714's delegate election for the holding of a mail ballot, and those nominated were declared elected. However, the campaign for International officers will continue at Local 714 workplaces, as elsewhere.
EMC has adopted a parking lot access policy that allows off-duty EMC employees to campaign in its parking lots during the 15 minutes before and after the start and end of its scheduled shifts. Non-employee IBT members are barred from any parking lot access for campaign purposes. Regional Director Sarsany has attempted, without success, to secure EMC's agreement to a modification of its policy that would bring it into compliance with Article VII, Section 11(e) of the Rules. EMC continues to maintain its policy in force.
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.
On November 8, 2000, the United States District Court for the Southern District of New York, Preska, J. (the "Court"), entered an order approving the access provisions of the Rules. A copy of that order is attached hereto as Attachment A. Judge Preska held that "it is critical that … IBT election[s] [are] conducted in a fair, open and democratic fashion… I find the Access Rule to be a necessary means by which to achieve this goal, specifically to permit candidates and members to have meaningful, face-to-face interaction." Id. at 14.
We find that EMC's continued maintenance of its policy violates Article VII, Section 11(e) of the Rules. Accordingly, 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 EMC to cease and desist from any denial of access by IBT members to EMC's employee parking lots in violation of Article VII, Section 11(e) of the Rules. Further, the Election Administrator orders EMC to revoke its above-referenced policy and distribute a copy of this decision to each of its employees by the close of business on April 25, 2001. Further, by April 27, 2001, EMC shall file a sworn affidavit of compliance with the Election Administrator. Failure of EMC to comply with any of the foregoing shall result in further action being taken before the Court, including referral of this matter to the United States Attorney for the Southern District of New York for action against EMC pursuant to the Consent Order and the Court's November 8, 2000 order approving the parking lot access provisions 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 (February 13, 1996).
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 15th Street NW, Tenth Floor, Washington, DC 20005 (fax: 202-454-1501), all within the time 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
2001 EAD 319
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 c/o Stefan Ostrach
110 Mayfair Lane
Eugene, OR 97404
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
IBT Local 714
6815 W. Roosevelt Rd.
Berwyn, IL 60402
Charles Duty
2535 South Wesley Ave.
Berwyn, IL 60402
Elkay Manufacturing Co,
2700 South 17th Avenue
Broadview, IL 60155
Kevin Fitzpatrick, Attorney
Elkay Manufacturing Co.
2222 Camden Court
Oakbrook, IL 60523
Dennis Sarsany
1829 Eddy Street
Chicago, IL 60657
[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."