IN RE: MATT LATZO,
Protest Decision 2001 EAD 543
Issued: November 6, 2001
OEA Case No. PR101512AT
Matt Latzo, a member of Local 355, 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 Local 355 business agents Dave White, Ron Cage and Marcus Smith. He alleges that the business agents campaigned inside the Jessup, Maryland facilities of Sysco Co. in violation of the Rules.
Election Administrator representative Dolores Hall investigated the protest.
Findings of Fact
Latzo is not a Sysco employee but is a member of Local 355. He says a Sysco employee told him that business agents White, Cage and Smith campaigned inside the Sysco Jessup facility for one-half hour on October 12, 2001. Latzo further claims that he was denied permission to do so several weeks before October 12. Following the October 12 campaigning, Latzo returned to the property on October 15, but did not attempt to or seek employer permission to campaign other than in the employee parking lot.
Two Sysco employees interviewed by our investigator refute Latzo's claim that the business agents campaign in work areas, and state that the October 12 campaigning was limited to non-work areas.
Sysco human resources officer Lisa Tyer told our investigator that they have received no requests from Latzo to campaign inside the Jessup facility. She confirmed that the business agents campaigned in non-work areas among non-working employees on October 12. Tyer stated that the business agents did not check in at the guard shack before entering the facility, even though she believed that it was not possible to enter the facility without the guard permitting entry. She further stated that campaigning by non-employees has always been limited to the fenced employee parking lot, and that campaigning has never been allowed inside the inner security barrier that one enters from the fenced parking lot. According to Tyer, only employees and those having legitimate business at Sysco are allowed in that area. Thus, says Tyer, when the business agents visit the facility for grievance hearings or other union business, they are required to sign in before entering beyond the inner security barrier. Tyer says she planned to write Local 355 telling them that when local union representatives want to visit the Jessup facility on union business, they must have prior written permission.
Cage had never campaigned at the Jessup facility before October 12. He has been with Local 355 for 12 years. He says that the three business agents arrived together and campaigned in the parking lot. Then, according to Cage, White and Smith went past the guard shack and security barrier and into the facility and began to campaign. Cage asked them what they were doing and they said they campaign there because they understood that a Sysco employee was being allowed to campaign inside the facility in a non-work area.[1] White and Smith then proceeded to that area and began campaigning.
Smith told our investigator that he has not campaigned on the Sysco property in the past, other than in the parking lot. He says that as far as he knows, all non-employee campaigning in the past has occurred in the parking lot. White agrees with Smith, and admits that neither he nor Smith obtained permission form anyone to pass beyond the guard shack and into the Sysco facility on October 12. White said that it was his idea to campaign at the Jessup facility, and that the protest filed by Linkenhoker had nothing to do with it.
Analysis
Based on the above, we conclude that there is no pre-existing practice of allowing non-employees of Sysco to campaign anywhere inside the inner security fence at its Jessup facility. This is affirmed not only by the testimony of Sysco human resources officer Tyer, but also by the business agent respondents in this case.
There is, of course, a past practice of allowing campaign activities by Sysco employees during non-work time in non-work areas at the Jessup facility, as found in Linkenhoker, supra. But the mere fact that an employer honors the right of its own employees to campaign on non-work time in non-work areas of its facility does not mean that that pre-existing right is also a pre-existing right of non-employees to enter onto the employer's premises to do so. Absent an employer practice of allowing non-employees to enter into its facilities to campaign among the employer's employees, non-employees are limited to campaign activity in the employer's employee parking lot, under terms consistent with Article VII, Section 11(e) of the Rules.
We previously held in cases such as Thompson, 2001 EAD 332 (April 30, 2001), aff'd, 01 EAM 73 (May 24, 2001), and Chapman, 2001 EAD 512 (October 17, 2001), stay denied (October 19, 2001), appeal withdrawn, that non-employee campaigners violated the Rules by entering an employer premises to campaign without the employer's knowledge or consent, where similar access was denied opposing candidates. Thus, in Thompson, supra, we held:
By accessing the inside of these employer facilities for campaigning, Leedham and his supporters indirectly appropriated a "thing of value" from the three employers. Because employer contributions - even contributions the employer does not know it is making - are prohibited, we find that the campaign access inside the CF, Holland Trucking and Porcelain Metals facilities violates the Rules. See Sylvester, 2001 EAD 288 (March 31, 2001).
We applied the referenced Thompson precedent in Cobb, 2001 EAD 509 & 513 (October 16 and 18, 2001), reversed, 01 EAM 100 (October 19, 2001), reconsideration denied, 01 EAM 100(a) (October 26, 2001). There, we held that General President candidate James P. Hoffa had received an improper employer contribution when the employer consented to his entry to an employee break room. We based our finding on evidence there was no preexisting right to campaign there. In reversing our decision, the Election Appeals Master found evidence of such a pre-existing right. He also held that "notice by employers to candidates of access rights to employer facilities is not required under the Rules. Furthermore, to state a viable protest, the candidate or campaigner must affirmatively establish that he specifically requested, on reasonable notice, access and was denied access."
Here, even though it appears to be undisputed that there is no pre-existing right on the part of non-Sysco employees to campaign inside the Sysco facility, we also find that Sysco has not denied any putative non-employee campaigners the same access obtained without employer consent by the respondents.[2] Thus, this case presents the question whether a Rules violation is stated when access to an employer property is gained by a non-employee campaigner without employer consent, where there is no pre-existing right to such access, and where there has also been no denial of such access to other non-employees.
Following the Election Appeals Master's holding in Cobb, supra, that "to state a viable protest, the candidate or campaigner must affirmatively establish that he specifically requested, on reasonable notice, access and was denied access…," we DENY this protest. There is no credited evidence that Latzo or any other non-Sysco employee sought and was denied campaign access to Sysco's facility. In the absence of such evidence, the Election Appeals Master's holding in Cobb requires denial.
Having so found, we are constrained to note that the Election Appeals Master's Cobb holding appears to undermine the result previously reached in Leedham Slate, 2001 EAD 445 (September 10, 2001), and Franken, 2001 EAD 457 (September 18, 2001), where non-employee candidates or campaigners from the Hoffa and Leedham slates obtained access to employer property to campaign, but where there was no evidence that other non-employee candidates or campaigners were ever denied such access. As we understand the Election Appeals Master's holding in Cobb, it is a jurisdictional prerequisite to any protest of non-employee campaign access inside an employer's premises that other non-employees were discriminatorily denied such access. This appears to be so where, as here, it is undisputed that there is no pre-existing right on the part of non-employees to campaign inside an employer's premises.
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 543
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
3060 Penobscot Building
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 11271
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, TX 75207
Sysco Foods
Attn: Lisa Tyer
8000 Dorsey Run Road
Jessup, MD 20794
Matt Latzo
9608 Hastings Drive
Columbia, MD 21046
IBT Local 355
1030 South Dukeland Street
Baltimore, MD 21223
Dave White
IBT Local 355
1030 South Dukeland Street
Baltimore, MD 21223
Ron Cage
IBT Local 355
1030 South Dukeland Street
Baltimore, MD 21223
Marcus Smith
IBT Local 355
1030 South Dukeland Street
Baltimore, MD 21223
Dolores Hall
1000 Belmont Place
Metairie, LA 70001
