IN RE: TOM LEEDHAM RANK AND FILE POWER SLATE,
Protest Decision 2001 EAD 440
Issued: September 6, 2001
OEA Case No. PR082411WE
The Tom Leedham Rank and File Power slate 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"). It alleges that employer BFI violated Article VII, Section 11(e) of the Rules by denying the parking lot campaign access rights of IBT member and International officer candidate Maria Martinez and other IBT members.
Election Administrator representative Lisa Sonia Taylor investigated the protest.
Findings of Fact
On August 24, 2001, Martinez arrived at the BFI facility with Mauricio Terrazas, an IBT retiree and non-member. See Leedham Slate, 2001 EAD 433 (August 29, 2001). She stated that a security guard approached and asked if they were on union business. She says that soon after BFI Operations Supervisor Louis Pacheco opened a second floor window and told them to leave the property, and then called the police. Martinez stated that Terrazas explained to the police that they had a right to campaign on the property. The police, however, told them to leave, and they did so.
Pacheco says that BFI has and will continue to allow IBT members to campaign in the parking lot. He agrees that he excluded Martinez and Terrazas from BFI property on August 24, but says he did so only because Terrazas became disruptive and harassed an employee. Specifically, he says that Terrazas approached an employee arriving for work and attempted to speak to him in Spanish. The employee declined to talk, says Pacheco, and Terrazas became agitated, thereafter following the employee into dispatch and banging on the glass. Pacheco says that the yelling was so loud that he could hear it from his office, and that this was what caused him to open the window and tell the campaigners to leave. Pacheco also admits asking the police to escort the campaigners off the property.
Analysis
Terrazas is a non-IBT member, and accordingly has no right to parking lot access under Article VII, Section 11(e) of the Rules. See Leedham Slate, supra; Lopez, P667 (April 8, 1996). Terrazas was therefore properly excluded from BFI property, and by campaigning with Terrazas on employer property, Martinez opened herself to exclusion from BFI's parking lot on August 24 as well.[1]
Moreover, unlike the employer in Leedham Slate, supra, BFI does not have a policy of excluding IBT members such as Martinez from campaigning in its employee parking lots, and has thus not violated the Rules by maintaining such policy. BFI's policy permits Martinez and other IBT members to campaign in BFI's parking lot in accordance with Article VII, Section 11(e) of the Rules. Martinez and other IBT members remain free to do so. But they have no right to bring non-IBT members with them when they campaign.
Based on the foregoing, we DENY the protest.
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 upon evidence that was not presented to the Office of the Election Administrator in any such appeal. 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, 727 15th Street NW, Tenth Floor, Washington, DC 20005 (facsimile: 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 440
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
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Todd Thompson
209 Pennsylvania Ave. SE
Washington, DC 20003
Matt Ginsburg
30 Third Avenue
Brooklyn, NY 11217
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, Texas 75207
Maria Martinez
IBT Local 556
1750 Portland Avenue
Walla Walla, WA 99362
BFI
Attn: Louis Pacheco
9200 Glen Oaks Blvd.
Sun Valley, CA 91352
IBT Local 396
880 Oak Park Road
Suite 200
Covina, CA 91724
[1] We reach this conclusion even though the reason proffered by BFI for the exclusion of Martinez and Terrazas was the latter's alleged misconduct. In light of this result, it is unnecessary for us to decide whether non-member Terrazas actually engaged in the misconduct alleged by Pachco.