IN RE: VIRTUE-DILEO SLATE and DOTTY MALINSKY, Protestors.
Protest Decision 2006 ESD 368
Issued: October 18, 2006
OES Case No. P-06-346-101006HQ
(See also Election Appeals Master decision 06 EAM 73)
Dan Virtue, Don DiLeo and Dotty Malinsky filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protestors, all of whom are candidates for IBT International office, alleged they were denied access to employee parking lots at an employer facility, in violation of Article VII, Section 12(e) of the Rules.
Election Supervisor representative Maureen Geraghty investigated this protest.
Findings of Fact
Local Union 1150, located in Stratford, Connecticut, is a single employer local union representing members employed by Sikorsky Aircraft in Alabama, Florida and Connecticut. Approximately 1500 members of that local union work at the Stratford facility.
On October 9, 2006 at approximately 2:00 in the afternoon, IBT Eastern region vice president candidates Daniel Virtue and Don DiLeo, IBT at-large vice president candidate Dotty Malinsky and six of their supporters, including Local Union 701 member Cliff Nolan, went to Sikorsky's Stratford location to distribute campaign literature in employee parking lots.
The Stratford facility is situated in the IBT's Eastern Region. Cliff Nolan and the other supporters reside in New Jersey, also in the Eastern Region.
DiLeo and Malinsky, arriving first, approached the eastern gate of the facility and were waved through by security. Once inside the gate, they parked and exited their vehicles, sat down in a grassy area and waited about two hours until Virtue arrived. They were in full view of security personnel during this period. Once Virtue arrived, the group proceeded to the visitor area at the facility's western gate. The candidates and their supporters presented identification and filled out individual visitor registration forms. They advised security they sought to campaign as candidates for IBT International office by distributing campaign literature to Sikorsky employees in the employee parking lot areas. Security personnel then called the human resources office and informed them of the request. An HR employee advised security that the candidates and their supporters were permitted to enter the parking lot areas to distribute campaign literature. The security guards then distributed maps of the four parking lot areas and assisted the candidates by noting on the maps the approximate number of employees who would exit from each area. Security advised the protestors that they could expect the largest number of employees in the parking lots during the 3:30 to 4:30 shift change. At about 2:00 p.m., the protestors and their supporters split up among the four areas and began distributing campaign literature. Only a few employees exited or entered the facility at that time, as it was prior to the shift change.
Shortly after the campaigners began leafleting, as candidate Malinsky was speaking to a Sikorsky employee, two other male employees began yelling at her stating: "You are not allowed here; you have to get off the property." The employee to whom Malinsky was speaking described the men as two strong Hoffa supporters. When Malinsky replied that she was permitted to campaign in the area based on the Rules and further stated she had registered with security, the men walked away.
A few moments later, Sikorsky security officer Kelley approached Malinsky in a security vehicle and stated he had received complaints that she and the other candidates were playing loud music on their car radios and must therefore leave. Malinsky denied they had played any music; Kelley appeared satisfied and he apologized for bothering her. He then drove away.
Shortly thereafter, one of the same men who had first yelled at Malinsky returned. The man was wearing a shirt containing the words "Local 1150 Steward." The man identified himself as Terry and stated that no one was allowed on company property unless he or she was a Sikorsky employee or worked for the local union. He directed Malinsky to leave immediately. Malinsky informed him she and the other campaigners had the right to campaign in the employee parking lot pursuant to the Rules. He disagreed and walked away again.
About three minutes later, security officer Kelley returned again. He asked Malinsky whether she was a Sikorsky employee or an employee of Local Union 1150. She replied that she was not. He then told Malinsky that she and the other candidates and their supporters had to leave because the local union had contacted Sikorsky's human resources department and requested that the company remove them from the premises. Our investigator contacted Kelley to confirm this fact but he declined to answer any questions.
The candidates and their supporters then went back to the visitors center and Cliff Nolan called OES representatives to report that the employer was denying access to the employee parking lot. Our investigator then spoke with the security guard who stated he had been directed to remove the candidates from the employee parking lot areas. He refused to state who had directed him to take that action.
Our investigator then contacted the employer and explained that it was critical to resolve the issue as quickly as possible, because shift change would occur momentarily and the candidates had traveled a considerable distance and would not be able to return to Sikorsky to campaign at any other time during the campaign period. Our investigator also telephoned Local Union 1150 president Harvey Jackson and requested that he immediately contact the employer to advise them that the candidates and their supporters had the right under the Rules to distribute campaign literature in employee parking lots.
At about the same time, Malinsky, Virtue and Nolan also called Jackson to ask him to intervene with the employer so they could regain access to the employee parking lot areas. According to Nolan, Jackson pretended not to know who Nolan was, even though the two had worked together on union issues for some 15 years. Further according to Nolan, Jackson repeatedly evaded and ignored Nolan's specific requests for assistance to resolve the access issue at Sikorsky. According to Malinsky, Jackson then spoke to Malinsky and told her there was nothing he could do to help her or the other candidates because they were not associated with Local Union 1150 and were not employed by Sikorsky. Malinsky and Nolan advised Jackson that Article VII of the Rules permitted access, but Jackson stated that Local Union 1150's policy trumped the Rules.
A short while later, a security officer approached the candidates and stated they could give their campaign literature to him and he would give it to unidentified local union members for distribution. The protestors declined the offer.
The candidates and their supporters then waited at the visitors center for another 80 minutes while efforts were made to resolve the conflict. At the conclusion of the 4:30 p.m. shift change and with no resolution, they left the facility. After leaving the parking lot area, the protestors did not attempt to campaign in the public ingress and egress areas to the parking lots because they were adjacent to a major parkway with heavy, speeding traffic.
Later that same day, at approximately 5:30 p.m., our investigator spoke with Sikorsky HR vice president Laurie Havanec. Havanec stated the employer had reviewed the Rules and would permit Teamster members access to the employee parking lots to distribute campaign literature. Havanec apologized for the delay and explained that she had to review the issue with counsel before making a decision on the issue.
Local Union 1150 steward Terry Pacitto admitted to our investigator on October 10 that he asked Malinsky whether she had obtained permission to campaign in the parking lot area from the employer. Pacitto denied taking any further action in regard to the protestors.
Also on October 10, local union president Jackson refused to answer our investigator's questions but stated he was unaware that the Rules afforded parking lot access to candidates and their supporters. Jackson admitted he was contacted by stewards from Sikorsky who advised him the candidates were campaigning in the employee parking lots. A Sikorsky representative stated that Jackson contacted Sikorsky HR and advised that the campaigners had no right to be on Sikorsky property. Jackson refused to provide the names or contact information for those stewards. Jackson directed our investigator to Local Union 1150 attorney Robert Cheverie, who was attending a meeting in Alabama with Rocco Calo, the local union's principal officer. Cheverie refused to state whether he represented Jackson or had directed Jackson to refrain from answering any questions related to the investigation. Cheverie and Calo both stated that Sikorsky had a uniform policy of restricting access to their parking lot facilities based on post-9/11 security concerns.
On October 11, Jackson responded to our investigator's request for information and admitted that he spoke with shop steward Pacitto, directed him to find out who the campaigners were and which candidates they supported. Pacitto called him back and identified the campaigners as Malinsky and Virtue. Jackson then telephoned Havanec at Sikorsky and told her that the campaigners were not Sikorsky employees and sought an explanation as to why they had been granted access. According to Jackson, Havanec stated that the campaigners had been granted access by Sikorsky security.
On or about October 2, 2006, Teamster members supporting IBT International officer candidate Tom Leedham successfully campaigned in the employee parking lots at Sikorsky's Stratford, Connecticut location with the employer's consent. Local Union 1150 was unaware of the presence of the Leedham supporters in Sikorsky's employee parking lot.
Analysis
Among the campaign rights the Rules protect is the right candidates for International office have to "distribute literature and/or otherwise solicit support in connection with such candidacy in any parking lot used by Union members to park their vehicles in connection with their employment," subject to certain limitations. Rules, Article VII Section 12(e) (the "parking lot access rule"). This provision is the same as one contained in the rules governing earlier IBT International Union Delegate and Officer Elections. See 2001 IBT Election Rules, Art. VII, § 11(e); 1996 IBT Election Rules, Art. § 11(e). Specifically, Article VII, §12 (e) of the 2006 Rules provides:
e) Subject to the limitations in this Subsection, (i) a candidate 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; (ii) each member of a candidate's Local Union has the reciprocal right to receive such literature and/or solicitation of support from such candidate or candidate's advocate; (iii) a candidate 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 Union members to park their vehicles in connection with their employment in said regional area(s); (iv) each member of the International Union who is employed within the regional area(s) in which said candidate is seeking office has the reciprocal right to receive such literature and/or solicitation of support from such candidate for International office or candidate's advocate.
The foregoing rights are available only in connection with campaigning during the 2005-2006 IBT International Union Delegate and Officer Election conducted pursuant to the Consent Order and only during hours when the parking lot is normally open to employees. The rights guaranteed in this Subsection are not available to an employee on working time, may not be exercised among employees who are on working time and do not extend to campaigning which would materially interfere with the normal business activities of the employer. An employer may require reasonable identification to assure that a person seeking access to an employee parking lot pursuant to this rule is a candidate or other member entitled to such access. Nothing in this Subsection shall entitle any candidate or other Union 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.
The foregoing rights are presumptively available, notwithstanding any employer rule or policy to the contrary, based upon the Election Supervisor'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. Such presumption may be rebutted, however, by demonstrating to the Election Supervisor 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 2005-2006 election. An employer seeking to deny access to Union members in an employee parking lot may seek relief from the Election Supervisor at any time.
As the United States District Court has repeatedly observed, access to parking lots where members park their vehicles is an important political right that is available to all IBT members. The parking lot access rule is based on findings that in-person campaigning in parking lots is the only practical method of realizing the democratic reforms to the IBT international officer election process mandated by the Consent Decree. United States v. IBT, 27 F. Supp. 2d 436 (S.D.N.Y. 1998).
Employer interests are recognized and balanced with those of the Consent Decree in the parking lot access rule. Access is allowed only for the purpose of conducting campaign activity relating to the IBT international union delegate and officer election. Employers may request reasonable identification but IBT members may not be barred from access absent an employer showing that access is neither necessary nor appropriate to members' meaningful exercise of democratic rights.
Our investigation established that Sikorsky's security personnel granted access to the employee parking lots after receiving clearance from the employer's HR department. Our investigation also demonstrated that a Local Union 1150 steward directed the protestors to leave and instructed them and security personnel that they were not permitted to campaign in employee parking lots. When the protestors called Harvey Jackson at Local Union 1150, he steadfastly maintained that only Sikorsky employees and Local Union 1150 employees were allowed in the parking lot area. The facts also demonstrate that Local Union 1150 representatives and officers directly interfered with members' Article VII rights to express their political views by contacting the employer and informing them that Local 1150 objected to their campaign activities.
Further, Local 1150's officers and attorney then refused to cooperate with the prompt investigation of this protest. Article XIII, Section 2 (g) of the Rules provides:
(g) The Election Supervisor shall have the authority to obtain, or to have the International Union obtain and provide, information necessary to assist in resolving any protest. The Union (including subordinate entities) and all members, candidates, slates and independent committees are required to cooperate with the Election Supervisor. Failure to cooperate with the Election Supervisor or Election Appeals Master (including making false statements to the Election Supervisor or Election Appeals Master) may result in referral of the matter to the Government for appropriate action under law (including the Consent Order), or such other remedy as the Election Supervisor or the Election Appeals Master deems appropriate.
The Rules prohibit local unions from restricting or interfering with members' right to support any candidates. Therefore, we GRANT the protest.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
We order Local Union 1150 shop steward Pacitto, local union president Jackson, and all other officers, employees and agents of Local Union 1150 to cease and desist from interfering with the campaign rights of members to distribute or receive campaign literature or other advocacy in employee parking lots.
In addition, we order Local Union 1150 to post on all union bulletin boards at facilities under its jurisdiction the notice attached to this decision. This posting must be completed no later than Friday, October 13, 2006, and an affidavit of compliance supplied to our office no later than Monday, October 16, 2006. The posting must be maintained for a period of 30 consecutive days.
The ballots were mailed to the membership on October 6, 2006; ballots are expected to arrive in members' homes on and after October 10, 2006. Given the limited time remaining in the election period, the candidates' schedules do not permit a return visit to the Stratford facility. Accordingly, to remedy the improper interference that Local Union 1150 shop steward Pacitto and president Jackson committed with respect to the campaign rights of the Virtue-DiLeo slate and independent candidate Malinsky, and to restore a level playing field, we order Local Union 1150 to pay the full cost of duplicating and mailing to the full membership of Local Union 1150 employed at the Stratford facility of Sikorsky a one-page, two-sided campaign flyer to be supplied by the Virtue-DiLeo slate and another one-page, two-sided campaign flyer to be supplied by Malinsky. Such flyers shall be mailed together by first-class mail no later than Friday, October 13, 2006. The local union shall supply its membership list for the members at this facility, current as of the date it supplies it, to the mail house selected by the Virtue-DiLeo slate in a form (label or electronic) designated by that slate. The local union shall tender payment of the costs identified in this paragraph within 2 working days of receipt of documentation showing duplication and mailing costs. The Virtue-DiLeo slate and candidate Malinsky shall be permitted reimbursement for the costs of printing (including plate-making, 4 colors maximum), ink, paper and envelope stock, folding, stuffing, and postage. The Virtue-DiLeo slate and candidate Malinsky shall each be responsible for the art and typesetting costs associated with their respective flyers. We order this remedy pursuant to Article XIII, Section 4(h) of the Rules, which authorized the Election Supervisor to "requir[e] the Union to mail or otherwise distribute, at its own expense, candidate campaign materials," and Section 4(m), under which the Election Supervisor may "require[e] the Union to provide candidate(s) with specific goods or services." We hold Local Union 1150 responsible for the actions of Pacitto and Jackson because of their status as representatives of the local union. In that representational capacity, each had a special responsibility to insure that his actions complied with the Rules.
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 Supervisor 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
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 368
NOTICE TO ALL MEMBERS OF TEAMSTERS LOCAL UNION 1150 EMPLOYED AT THE STRATFORD, CONNECTICUT FACILITY OF SIKORSKY AIRCRAFT
FROM IBT ELECTION SUPERVISOR RICHARD W. MARK
The Rules for the 2005-2006 IBT International Union Delegate and International Officer Election ("Rules") permit members to support or oppose any candidate and to distribute campaign publicity. The Rules also guarantee the right of members to hear or receive such campaign publicity. The Rules prohibit any member from interfering with the right to distribute or receive campaign publicity.
The Election Supervisor has found that Local Union 1150 shop steward Terry Pacitto and Local Union 1150 President Harvey Jackson improperly interfered with the campaign rights of Dan Virtue, Don DiLeo, and Dotty Malinsky, candidates for International office, by having them removed from the employee parking lots of the Stratford, Connecticut facility of Sikorsky Aircraft, in violation of the Rules.
The Election Supervisor will not tolerate such interference.
The Election Supervisor has ordered Pacitto, Jackson and all other officers, employees and agents of Local Union 1150 to cease and desist from interfering with members' rights to distribute or receive campaign publicity. The Election Supervisor has also ordered Local Union 1150 to pay the cost of a campaign mailing from candidates Virtue, DiLeo and Malinsky to all members of Local Union 1150 employed at the Stratford, Connecticut facility of Sikorsky Aircraft.
Any member who has not received his/her ballot may request a replacement ballot by contacting the Election Supervisor. Any member who has already voted but who seeks to change his/her vote may also request a replacement ballot from the Election Supervisor; the member's ballot with the later postmark will be counted and the earlier postmarked ballot will not. Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with the Election Supervisor. The Election Supervisor can be contacted by mail at 1725 K Street, Suite 1400, Washington, D.C. 20006; by telephone at 888-IBT-2006; by fax at 202-454-1501; and by email at electionsupervisor@ibtvote.org.
__________________________________
Richard W. Mark
IBT Election Supervisor
Dated:
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters. It must remained posted for 30 consecutive days and must not be defaced or covered up.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Virtue-DiLeo Slate
P.O. Box 5006
Harrisburg, PA 17110
Virtue-DiLeo@hotmail.com
Dotty Malinsky
P.O. Box 385288
Bloomington, MN 55438
dottymalinsky2006@hotmail.com
Rocco Calo, Secretary-Treasurer
IBT Local Union 1150
150 Garfield Avenue
Stratford, CT 06615
rocco@teamsters1150.org
Robert M. Cheverie
333 E. River Drive, Suite 101
East Hartford, CT 06108-4201
(by fax to (860) 291-9611)
Edward J. Dempsey
Director, Industrial Relations and
Labor Counsel
United Technologies Corporation
United Technologies Building
1 Financial Plaza
Hartford, CT 06101
ed.dempsey@utc.com
Maureen Geraghty
Geraghty Law Firm
426 Old Salem Road
Winston-Salem, NC 27101
mg@geraghtylawfirm.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com