Protest Decisions

              November 1, 1996

VIA UPS OVERNIGHT

John Cetinske

117 Peak Hill Circle

Nashville, TN  37211

Harold J. Yates, President

Teamsters Local Union 120

953 Westgate Drive #115

St. Paul, MN  55114

Steve Swarthout, Terminal Manager

Roadway Express

Terminal 434

3240 Franklin Limestone Road

Antioch, TN  37013

Richard J. Bennett

Roadway Services, Inc.

1077 George Boulevard

Akron, OH  44309

Mark Heining, Assistant Terminal Manager

Roadway Express

2950 Lone Oak Circle

Eagan, MN  55121

Barbara J. Leukart

Jones, Day, Reavis & Pogue

North Point

901 Lakeside Avenue

Cleveland, OH  44144

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

    Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

                            Re:  Election Office Case Nos.P-886-LU480-SCE

                                                                                        P-905-LU120-NCE

                                                                                        DECISION ON REMAND

Gentlepersons:

              John Cetinske (P-886-LU480-SCE), a member of Local Union 480, and

Harold J. Yates (P-905-LU120-NCE), president of Local Union 120, filed pre-election protests pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).  Both protesters allege that Roadway Express (“Roadway” or “Company”) has violated members’ rights to campaign in employee parking lots on employer premises, as guaranteed by the Rules.  Because these protests involve similar allegations and parties, they were consolidated for decision by the Election Officer.

              Regional Coordinators Judith E. Kuhn and Bruce Boyens investigated these protests. 

John Cetinske & Harold Yates

November 1, 1996

Page 1

              The Election Officer issued her initial decision on September 20, 1996.  This matter comes before the Election Officer on remand from a decision of the Election Appeals Master, In Re: John Cetinske et al., 96 - Elec. App. - 246 (KC) (October 4, 1996), corrected

(October 16, 1996).  In light of that decision, the Election Officer has reconsidered the matter and submits herein her revised findings and conclusions.

A.  Statement of Facts

              1.  P-886:  Sometime in 1995, Roadway issued the following guidelines to apply to campaigning at all Company facilities:

a.Candidates and/or their supporters are required to provide 24-hour advance notice.

b.The entire group should not exceed four campaigners.

c.Campaigning should be restricted to within a 25-foot radius of employee entrances to the parking lot.

d.Visits should be limited to two hours or only so long as there are significant numbers of employees flowing through the campaign area, whichever is shorter.

e.Requests for access will be treated on a first-come, first-served basis.  Access will be limited to one slate of candidates at a time.

f.Candidates and/or supporters shall remove all undistributed campaign materials and all other campaign paraphernalia when they depart the premises.  Appropriate postings will be allowed on the bulletin board.

g.Express employees shall have the right to solicit on non-work time only.  Express employees shall have the right to distribute campaign material in non-work areas during non-work time in accordance with the rules of number six above.  Express employees who are not in contact with customers of the employer shall have the right to wear campaign buttons, hats, etc., provided they are in good taste.

h.Candidates and/or supporters failing to make a proper request may be denied access.  Candidates and/or supporters permitted access who fail to abide by the provisions above may be required to leave the premises.

              On August 9, 1996, Mr. Cetinske attempted to campaign at the employee parking lot at Roadway’s Nashville, Tennessee terminal with Randall Copeland, a Southern Region vice-presidential candidate and principal officer of Local Union 519.  Neither men are Roadway employees.  After they had campaigned for approximately two hours, they were approached by Roadway’s terminal manager and told that they must give 24 hours’ prior notice in order to campaign on Roadway property.  Mr. Copeland thereupon called Terry Underwood, a labor relations representative for the Company, to discuss the policy.  According to Mr. Copeland, Mr. Underwood stated that he did not know about the policy and would check with his superiors, but that he saw no problem with Mr. Copeland’s actions on August 9.  When

Mr. Underwood did not call back, Mr. Copeland drew the conclusion that he was not required to give 24 hours’ notice.

              On August 20, 1996, Messrs. Cetinske and Copeland were joined by James P. Hoffa, a candidate for general president, and several supporters employed at Roadway in attempting to campaign at the same terminal.  They began campaigning at approximately 1:00 p.m.  Twenty minutes later, terminal manager Steve Swarthout told them they had to leave because they had not provided 24 hours’ advance notice and because the total number of persons campaigning exceeded four.  Mr. Swarthout also stated that Roadway had a “deal” with the Election Officer and was merely enforcing the terms of the deal.  Mr. Copeland states without contradiction that there was no blocking of the terminal entrance as a result of the campaigning.  There was no evidence that the campaigning on either day interfered with Company operations or created any security or other problems.

              1.  P-905:  Brad Slawson, a member of Local Union 120, went to the Roadway terminal in Eagan, Minnesota on August 25, 1996 to campaign and was asked to leave because he had not complied with Roadway guidelines.  The following day, Mr. Slawson telephoned his local union president, Mr. Yates, to ask about the restricted access.  Mr. Yates, in turn, called Gary Rydberg, the terminal manager, and was told that Mr. Slawson had been ejected for failing to comply with corporate guidelines which applied to campaigning.  Mr. Yates obtained a copy of the guidelines, which was the first time he knew of the restrictions.

              Throughout the campaign, the Election Officer has reviewed numerous protests concerning access and discussed the issue with IBT members and representatives of candidates.  She finds that IBT members seeking to campaign for a candidate or slate generally travel from company to company, often without a specific schedule.  They rely on the limited-access rule to apply uniformly to each of the companies they visit.  Candidates visiting different geographic areas may know in advance the cities they are going to, but do not schedule that far in advance and frequently make quick decisions about visiting certain facilities in that location.  Their travel arrangements often do not allow them to return to a facility if they are turned away because of a previously unknown restriction that was not contained in the Rules.[1]  As a result, members faced with a series of restrictions to access beyond those contained in the Rules may be deterred from campaigning at such facilities, thereby depriving members of those facilities the right to receive campaign speech.

              Roadway has a number of terminals and work sites throughout the country.  It is not unique in that regard.  The IBT and its affiliates have collective bargaining relationships with thousands of employers.  Many IBT employers have multiple work sites.  The Election Officer finds that tailoring different access rules for each employer without good cause would severely restrict the right of members and candidates to campaign, as envisioned under the Rules.

B.  The Initial Election Officer Decision

              The Election Officer issued her initial decision on September 20, 1996.  In that decision, the Election Officer found that Roadway, an employer of numerous IBT members, had issued a set of eight election campaign guidelines which were to be applied across the board at all Roadway facilities.

              The Election Officer concluded that these across-the-board guidelines of Roadway violated Article VIII, Section 11(e) of the Rules because they were an unacceptable restriction of the limited right-of-access granted in the Rules and approved by the United States District Court.  After reviewing a history of negotiations between the Election Office and the Company, the Election Officer found that she had never agreed to the restrictions imposed by the Company.  The Election Officer found that Roadway’s arguments did not overcome the presumptive right of employees contained in the Rules and, therefore, found a violation.

C.  The Election Appeals Master’s Decision

              On appeal, the Election Appeals Master reversed the decision of the Election Officer.  Procedurally, the Election Appeals Master noted that the Election Officer did not investigate and establish a factual record regarding the circumstances surrounding the two incidents giving rise to the protest.  The Election Appeals Master thus restricted his review to the issue of whether Roadway’s 24-hour-advance-notice requirement violated the Rules, since that was the only requirement used to prohibit access in P-886 and no specific basis for denial of access was given for case P-905.  Based on this, the Election Appeals Master found that the single issue in dispute in this case was “whether a generalized rule for 24 hours advance notice of campaigning in all facilities under all circumstances is per se reasonable.”  After briefly reviewing the course of negotiations between the Election Office and Roadway over the issue of access generally, the Election Appeals Master set forth six assertions by the Company to which the Election Officer did not make any effective response.  Those were described as follows:

First, it points out that in neither of the protest cases on appeal was any advance notice of any kind given, and further, no attempt was made by the Election Officer to establish relevant facts that would allow timely and efficient resolution of the matters on the “case by case basis” asserted to be the Election Officer’s standard of procedure.

Second, Roadway observes, accurately, that no evidence has been presented to support the proposition that Roadway’s guidelines have operated to restrict the meaningful opportunity for candidates to meet with the electorate and engage in face-to-face campaigning.

Third, Roadway insists that in 1991 extensive campaigning took place on Roadway property without the filing of a single protest over its access guidelines.

Fourth, Roadway states that in a specific 1991 case, Gabriel P-8730[sic]-LU710-CHI, the Election Officer ordered campaigners to give 48 hours notice in order to gain access for campaigning.

Fifth, the Company argues that the Election Officer’s objection to the 24 hours advance notice across the board guideline fails to take into account the large number of Roadway facilities and the requirement for consistency under the Rules.

Sixth, Roadway insists that a facility by facility approach, given the need for consistency and the administrative burden that such an approach entails, is simply unworkable.

Slip op. at 4-5.

              The Election Appeals Master concluded that the Election Officer’s decision was based on “her unsupported conclusion that a 24 hours advanced notice, across-the-board condition for campaign access to Roadway’s hundreds of facilities across the United States is per se unreasonable.”  The Election Appeals Masters found this position to be “not tenable” in light of the extensive record on the central issue between Roadway and the Election Officer.  The alternative approach, a case-by-case analysis, was observed to be inefficient and time- consuming.  Moreover, the Election Appeals Master found the Election Officer’s resolution to these two protests to be inconsistent with her position, suggesting that no notice of any kind need be given by campaigners seeking access to Roadway facilities. 

              In conclusion, the Election Appeals Master found that the Election Officer needed to say clearly and unequivocally what her rule was:  whether no notice ever need be given by campaigners; whether she read the Rules as implying no reasonable requirement; and whether notice is required in some cases.  Finally, the Election Appeals Master found that if the Election Officer’s position was that all protests must turn on their unique and discrete facts, then it was up to her to “comprehensively investigate each protest implicating the guidelines and make adequate and relevant findings of fact.  It will be insufficient in such circumstances to impose a burden of proof on the employer and none on the protester . . .”  The Election Appeals Master remanded the case for further findings, in accordance with the opinion.

              Thus, the Election Appeals Master has ordered the Election Officer to review her policy in detail, to squarely address the Company’s assertions, and to state clearly and unequivocally her position as to how she analyzes and resolves disputes over access.

              DISCUSSION

              In preparing this remand decision, the Election Officer has carefully reviewed the record in this case and has further reviewed the decision of the United States District Court approving the access rule. 

A.  The District Court’s Decision

              Article VIII, Section 11(e) of the Rules states, in relevant part, as follows:

Subject to the limitations in this Subsection . . . (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 1995-1996 IBT International Union Delegate and Officer 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 Officer’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 . . .

The U.S. District Court specifically approved the rule, calling it “crucial to the achievement of a free, fair, and democratic election process . . .”  United States v. IBT (1996 Election Rules Order), 896 F. Supp. 1349, 1367 (S.D.N.Y. 1995), aff’d as modified, 86 F.3d 271 (2d Cir. 1996).  The District Court found that “other methods of campaigning, including mailings, telephone campaigns, home visits, and alternative methods of face-to-face campaigning are woefully inadequate.”  Id.  The District Court found that the rule was “agreeable to the usages and principles of law” because it was extremely circumscribed in scope:

[T]he rule provides no right to enter any area other than an employee parking lot, and IBT members can gain access only during hours when the parking lot is normally open to employees.  IBT members only have a right of access for the purpose of campaigning for delegate or International Union office and only during hours when a parking lot is normally open to IBT members.  The rule creates no right to campaign or to receive campaign advocacy during working hours, and campaign activity that would materially interfere with the normal business activities of the employer is not permitted.  An employer may require a person seeking access to an employee parking lot to produce reasonable identification in order to assure that such a person is a candidate or other IBT member entitles to such access.

Id.  The District Court further noted that as written, the rule was a presumptive right only:

[A]ny employer may rebut this presumption by demonstrating to the Election Officer that the exercise of the right by IBT members with regard to that employer is “neither necessary nor appropriate to meaningful campaigning or IBT members’ becoming informed about candidates.”

Id.  The District Court found that the rule “affords employers full procedural protections by giving any employer the opportunity to apply to the Election Officer for an exemption from the rule.”  The denial of a requested exemption could be appealed to the Election Appeals Master and ultimately to the District Court.  Id. 

              Finally, the District Court found that the All Writs Act authorized the Court to enforce the Consent Decree not only against the parties to it, but also against employers who “are in a position to frustrate the implementation of [the Consent Decree] or the proper administration of justice.”  Id. at 1366, quoting United States v. New York Tel. Co., 434 U.S. 159, 174 (1977).

              In summary, the text of the rule, as approved and described by the District Court, leads to three important conclusions that guide the Election Officer’s analysis.  First, the limited- access rule is fully enforceable against employers because of the importance of the right to campaign on employer property.  Second, the rule itself contains carefully devised limitations to minimize the intrusion on the legitimate operations of the employer.  Third, the burden is on an employer to demonstrate to the satisfaction of the Election Officer that further restrictions on the right-of-access are warranted based on the employer’s specific circumstances.

B.  The Election Officer’s Application of the Rule

              In Terrazas, P-825-LU63-CLA (July 11, 1996), aff’d, 96 - Elec. App. - 217 (KC)

(July 22, 1996), the Election Officer found that an attempt by an employer to condition access to its parking lot on an employee’s signing a liability release violated “the terms and limits of the right to work-site access . . .established by the Court and by the Rules.  [The employer] cannot unilaterally alter these terms and limitations merely because it objects to them.”  The Election Officer further rejected the employer’s prior-notice requirement.

              Although the District Court left no doubt of the Election Officer’s power and authority to find employers of IBT members in violation of the Rules where warranted, the Election Officer has nevertheless adopted a policy of seeking, where possible, to negotiate resolutions of access protests without adjudication.  In some cases, where employers have raised specific, justifiable concerns regarding parking-lot access, the Election Officer has adopted in the resolution of the protest minor additional procedures governing access within the framework of the Rules.  However, it is within the Election Officer’s discretion to refuse to agree to such restrictions where the goals of the Rules will not be served.  Where an employer cannot justify a restriction, the Election Officer has refused to permit it.  See Carlucci, P-916-LU705-CHI (September 23, 1996) (employer’s offer to have campaigners campaign on sidewalk in front of parking lot because it has a strict no-solicitation policy); Saavedra, P-923-LU439-CSF (September 26, 1996), aff’d, 96 - Elec. App. - 250 (KC) (October 10, 1996) (providing access to another parking lot at the facility because it would interfere less with business operations). 

C.The Company Has Not Justified the Need for Restrictions Contained in the Guidelines

              The Election Appeals Master focused on the 24-hour-notice requirement in his decision.  However, the scope of the protest and the Election Officer’s adjudication was broader than that and found the entire set of guidelines to be a violation.  The fact that not every guideline was implicated by the circumstances of these two protests does not prevent the Election Officer from analyzing and ruling on the entire set of guidelines.  The Election Officer was presented with a set of restrictions to be applied across the board without regard to the individual facts of a specific location or situation, and she adjudicated the propriety of the restrictions on that basis.  The Election Officer finds that the presence of the guidelines poses an unacceptable restriction of members’ rights under the limited-access rule and could lead to dissuading members from exercising the full scope of their campaign rights. 

              It is undisputed that Roadway issued and posted the guidelines at its facilities.  On their face, the guidelines limit the rights that members are afforded under the Rules to campaign at employer parking lots.  The potential chilling effect of the exercise of member rights under the Rules is a sufficient predicate for ruling on the language of the guidelines in their entirety. 

              By looking only at the guidelines directly implicated in the fact situations here, the Election Officer would be encouraging the kind of piecemeal litigation which the Election Appeals Master has rightly noted could clog the protest process and lead to unnecessary inefficiency.  Further, Roadway was put on notice that the guidelines as a whole were under review as a potential violation of the Rules.  Roadway was provided with the opportunity to make a full response as to all of the guidelines and, indeed, filed a full defense of its guidelines on September 4, 1996.  The Election Officer thus finds that the guidelines as a whole are properly before her in this case.

              On the merits of the case, the Election Officer finds that Roadway’s stated reasons for further restricting members’ access do not overcome the presumption contained in the rule.  Indeed, Roadway never even argued to the Election Appeals Master why such restrictions are necessary.  In its letter to the Election Office of September 4, 1996, Roadway did submit arguments for the guidelines but, as shown below, they are insufficient to overcome the presumption.

              1.  The 24-hour rule:  Roadway argues that it needs to prepare for campaign activities since it does not usually provide access to nonemployees.  The Company therefore asserts that it needs time to contact the appropriate Company personnel that the nonemployees should be let onto the property.  What is missing from this explanation is why the Company needs

24 hours to communicate to its personnel specifically who is going to be on the property or when.  It is Roadway’s responsibility under the rule to advise and train its terminal managers and security force to allow access when IBT members arrive and present valid identification.  If Roadway wants to make sure it does not accidentally arrest campaigners, there are less onerous means of doing so, such as having persons assigned as escorts, using visitor badges, or more effectively communicating with their own security force.

              The Election Officer has already held that IBT members who seek access to campaign are not required to provide advance notice, under the Rules.  See Terrazas, supra.  Normal security needs are addressed by allowing employers to require reasonable identification from any IBT member seeking access.  The Election Officer was willing to discuss allowing Roadway to impose prior notice with a “call ahead” type of arrangement.  But Roadway’s translation of this minimal deviation from the language of the rule into a 24-hour notice across the board requirement was not acceptable.

              The Company has argued that candidates like Mr. Hoffa know their schedules well in advance and, therefore, giving notice should pose no problem.  As noted above, the Election Officer finds that decisions to campaign at specific terminals are often made on short notice and a missed opportunity to campaign at a facility generally cannot be made up later.  Further, most campaigning on employer premises is done by rank and file supporters who do not have the benefit of schedulers or staff, but campaign when they can to accommodate their own work schedules.  Many or even most of the nonemployee campaigners may not know of the

24-hour-notice requirement and will learn of it only when they arrive at the terminal to campaign and are turned away.  The Election Officer finds that the very existence of this requirement thus restricts campaigning at Roadway premises.

              The Company attempts to argue that the Election Officer’s willingness to accept a prior notice requirement in specific circumstances compels her to accept the Company’s 24-hour- notice requirement.  However, the Election Officer sees no evidence that 24-hour notice is necessary to justify the restrictions it imposes on members’ rights, nor has the Company carried its burden to show why it is needed.  The Election Officer further finds that there is no evidence from the campaigning that took place on August 9 or August 20 at Roadway’s Nashville terminal that shows a need for a 24-hour-advance-notice requirement.

              While Roadway is a large employer with many terminals, it has failed to even suggest why its problem in dealing with nonemployees seeking access is any different or more difficult than that faced by any other employer.  The Election Officer has not accepted an across-the-board 24-hour prior notice rule from any other IBT employer. The Election Officer is charged with assuring an even-handed application of the parking-lot-access rule for all employers.  The Election Officer cannot administer this process by accepting across-the-board restrictions proposed by Roadway without an articulated and acceptable basis for restrictions not set forth in the rule itself.  In the absence of any evidence, the Election Officer finds that the Company has failed to overcome the presumption of the rule.

              2.  The limit on the number of campaigners:  Roadway argues that the limit on campaigners is needed for safety and security purposes.  Roadway is concerned because campaigners would have direct access to areas where freight is stored.  Crowds of campaigners, it claims, would make it difficult to ensure the security of the freight and the Company’s own property.  Most Roadway facilities observed by Election Office investigators, however, show that the parking lot in which employees park their vehicles is surrounded by a fence and separated by that fence from the dock and freight areas.  Many Roadway parking lots have a single entrance in the fence through which employees pass into the work areas. Therefore, it is unlikely that campaigners on the parking lot would have direct access to the freight areas.  Further, this guideline does not take into account that at Roadway facilities which have large employee parking areas, to effectively reach all the employees at a facility when the employees are coming to or leaving work may require more than four campaigners.

Again, the Election Officer expressed willingness to allow Roadway to impose reasonable limitations on the number of campaigners permitted to be present at any one time.  Implicit in this, however, was that such restrictions would be tailored to the particular facility and situation.  In the case of campaigning in P-886, Roadway enforced its guideline on the four-person maximum without regard to the lack of any showing that the campaigning caused any disruption of operations or posed security problems.

              The Election Officer again finds an across-the-board application of this rule to be unjustified.  The Rules do not allow nonemployees access to the building or other parts of employer premises, or access to the parking lots for any purpose other than campaigning.  The Election Officer finds that keeping the “complement” down to four persons is an unnecessary across-the-board restriction on campaigning.

              3.  One slate at a time:  Roadway argues that it needs to limit access to only one slate at a time because emotions are running high and it wants to avoid being a battle site among supporters of the various candidates.  To the extent that different candidates and their supporters are actively campaigning at work sites, this guideline makes it more likely that IBT members will be denied right-of-access.  Roadway fails to explain why it is more likely to be the site of such fights than any other employer premises.  It has not cited any specific incidents where small groups of rival campaigners resorted to violence.  Nor does the Company explain why it cannot direct two groups into separate parts of the parking lot, if needed. 

              Indeed, Roadway’s restriction is likely to promote conflict among campaigners competing for limited time and space at terminals.  Moreover, to the extent that the Company is called upon to arbitrate disputes over campaign rights, it gives the employer decision--making authority over the exercise of campaign rights--exactly what the rule was designed to limit, in order to insure even-handed campaign opportunities for all.

              The Election Officer has previously found in Hoffa, P-784-LU282-NYC (June 14, 1996), that speculation as to a possible problem does not warrant the curtailment of important, protected rights, under the Rules.  If trouble arises, the employer may request that the campaigners separate, order them to leave the property or take other appropriate action.  The Rules do not permit restrictions on access merely because trouble might ensue.

              4.  Staying within 25 feet of employee entrance:  Roadway’s guidelines require all campaigners to stay within 25 feet of the employee entrances to a parking lot in order to promote the “safety and security of Roadway personnel and property.”  However, the Company never explains why this guideline promotes security, or why the Company’s needs are in any way different from those of other IBT employers.  Nor does the Company offer any evidence about the physical layout of its employee parking lots that would explain or justify a special restriction on campaigning.  To the contrary, it would seem that this restriction is the prime reason why the Company feels it needs to limit the number of campaigners, limit the hours of campaigning, and prevent campaigners of opposing slates from being present at the same time.  By restricting the geographic scope of campaigning to a narrow semicircle within  a 25-foot radius, the Company has created its own bottleneck which causes further restrictions on the right to campaign.

              5.  Two-hour limit on campaigning:  The Company also seeks to limit campaigning to two hours or less if there are no longer “significant numbers of employees flowing through the campaign area.”  Terming this merely a clarification of the Election Officer’s rule that access for campaigners is only available during hours when the parking lot is normally open to employees, Roadway asserts that the absence of a time limit would invite disruption of normal work operations.  The Company does not explain why the absence of a time limit would cause disruption, nor is it obvious why such a guideline is necessary.  To the contrary, Roadway’s guideline vests unacceptable discretion in Company managers to determine when a “significant number of employees” are in the campaign area.  It may be unlikely that campaigners would want to stay in a parking lot bereft of employees.  However, if they decide they want to stay to leaflet stragglers coming off work, that campaign choice must be honored.

              Contrary to the Company’s assertion, the Election Officer’s rule does not permit a

per se limit on time that campaigners can choose to spend in the parking lot, but states only that it may be limited to hours in which the parking lot is normally open to employees.  The Company’s restriction is in fact directly contrary to the Election Officer’s rule and constitutes an attempt to rewrite it.

              In summary, the Election Officer finds that Roadway’s guidelines are not supported by any evidence showing a particularized need of the Company’s for special restrictions on the exercise of the limited-access rule.  Nor are they consistent with the language or intent of the parking-lot-access rule.  Roadway had the opportunity to object to the rule when promulgated and litigate its opposition before the District Court.[2]  It did not do so and should not be permitted to limit the rule by imposing the across-the-board restrictions contained in its guidelines.

D.  There was No Agreement on The Restrictions Imposed by the Company

              The Election Officer has again reviewed the facts concerning discussions between Roadway and the Election Officer, and finds as fact that there was never an agreement on the restrictions on access imposed by Roadway here.  In Aldridge, P-171-LU667-SCE

(November 21, 1995), an IBT member protested that he was denied access to a Roadway facility in Memphis, Tennessee on September 20, 1995, and threatened with arrest.  Contacted about the protest, Barbara J. Leukart, counsel for Roadway, initially expressed doubt that Roadway would allow access, notwithstanding the Decision and Order of the District Court. 

              In an effort to resolve the dispute short of adjudication, and in an effort to provide a framework for resolution of potential future disputes on campaign rights at Roadway, the Election Officer sent Roadway a letter on October 23, 1995.  The letter included a proposal for conditions under which Roadway would agree to provide access to non-employees under the Rules.  The Election Officer allowed that non-employees seeking to campaign on the parking lots at Roadway facilities would call ahead to let the facility manager know they would be coming.[3]  It also allowed for the possibility of reasonable restrictions on the number of campaigners.[4]

              Roadway responded to the Election Officer’s letter on November 2, 1995.  In the response, Roadway significantly expanded the terms suggested and acceptable to the Election Officer.  Thus, it imposed an interpretation on the call-ahead prior notice language in the Election Officer’s letter into a 24-hour advance notice requirement.  In its response, unlike its current guidelines, Roadway stated that without such 24-hour notice by members, access could not be “guaranteed.”  Therefore, while Roadway stated a strong preference for such notice, it was not even proposed as an absolute prerequisite for access.  Roadway also indicated its interpretation that “reasonable restrictions on the number of campaigners” proposed by the Election Officer would mean the “maximum number allowed consistent with safety, traffic and/or security needs.  Generally, the entire group should not exceed four (4).”  In this response, Roadway did not indicate that it would be applying the four-campaigner limitation in all situations.

              Following receipt of Roadway’s November 2, 1995 letter, Protest Chief Benetta Mansfield contacted counsel for Roadway and stated that to the extent that the letter implied across-the-board restrictions on non-employee access to Roadway parking lots, including the 24-hour advance notice or a maximum of four campaigners, the Election Officer could not agree.  Rather, Ms. Mansfield conveyed that the process would be protest-driven and the Election Officer would examine whether a given situation merited the particular application of a restriction.

              Ultimately, a decision issued in Aldridge on November 21, 1995, finding the protest to be resolved based on the protester being granted access to the Memphis facility on October 1 and the lack of any further violations of the Rules.  Unlike other decisions resolving access protests, the Election Officer did not articulate any minor modifications to the rule on parking-lot access in Aldridge.  See, e.g., Murphy, P-663-LU122-ENG, P-759-LU122-ENG (May 9, 1996), aff’d, 96 - Elec. App. - 190 (May 16, 1996) (campaigners call before they arrive providing approximate time of arrival); Mee, P-835-IBT-CLA (July 18, 1996) (campaigners contact the employer before they come to the parking lot).

              It was not until the Election Officer received the protest in P-905 that she was aware that Roadway had actually issued the across-the-board broad guidelines, which embodied a strict 24-hour notice rule and limited the maximum number of campaigners to four.  Further-more, the guidelines include restrictions which were never even discussed in the October/November 1995 period of communication between Roadway and the Election Office:  campaigning would be restricted to within a 25-foot radius of employee entrances, limiting campaign visits to two hours, and limiting access to one slate at a time.  When Roadway asserted that such guidelines were based upon an “agreement” with the Election Officer, Ms. Mansfield, in a telephone conversation on August 27 and in a letter of August 29, 1996, recounted the discussions of the prior fall, noting the lack of any agreement by the Election Officer to Roadway’s November 2, 1995 letter, or to the more restrictive across the board guidelines Roadway thereafter implemented. 

              As part of the investigation of these protests, Ms. Mansfield solicited a statement from Roadway as to “why it views such restrictions as reasonable and consistent with the Rules, and why such limitations are consistent with the Rules in the protests pending before this office.”  In response to Ms. Mansfield’s letter, Roadway submitted a letter dated September 4, 1996, arguing why its guidelines are reasonable and justified under Article VIII, Section 11(e) of the Rules.  The Election Officer did not find the articulation of reasons sufficient to justify Roadway’s use of such guidelines to modify the Rules and the Election Officer issued her decision of September 20 granting the protest.  Roadway’s letter of September 4, 1996 did not assert that there was an actual agreement between the Election Officer and the Company over the terms of its guidelines.

              As described above, the Election Officer finds as fact that no agreement has ever existed between the Election Officer and Roadway as to the specific restrictions on campaigning imposed by the guidelines issued by the employer.  Accordingly, the burden was on Roadway to apply for an exemption to the general application of the rule and to show why the presumption should not apply to it.  Roadway failed to make any application prior to the alleged violations and did not persuade the Election Officer after the fact to vary the rule.

E.  The Company Has Not Offered Any Persuasive Argument Against These Protests

              The Election Appeals Master states that the Company made a number of assertions to which the Election Officer did not effectively respond.  The Election Officer has accordingly reviewed these six points and responds as follows:

              1.  The Company states that no advance notice was given in either of the two situations resulting in the instant protests and, thus, no relevant facts were established that would allow case-by-case adjudication.  However, its initial premise is wrong.  The Rules do not require any prior notice by campaigners and the burden is on the employer to demonstrate special conditions justifying such a restriction.  As discussed at length above, the Company has failed to do so.  The Election Officer has been willing to consider the concept of contacting an employer prior to arrival where an articulated reason for such notice existed with certain employers in resolving particular protests. See Mee, supra; Murphy, supra. Indeed, the Election Officer has been willing to consider this type of call-ahead notice with Roadway.  Roadway, however, has been insistent on enforcing an across the board 24-hour rule and, in the absence of evidence of good cause, such an advance-notice requirement cannot be imposed.

              Further, while Election Officer decisions proceed on a case-by-case basis, that does not mean that the Election Officer is not free to adjudicate per se violations of the Rules, even where the facts of a particular protest do not implicate all aspects of a violative policy.  The Company is not correct when, in its letter to the Election Appeals Master of September 27, 1996, it asserted that there was “no actual dispute” in P-905.  As described above, the protest in P-905 challenged the entire set of restrictions as a per se violation of the limited-access rule.  Since the Company intended to apply the restrictions across-the-board, regardless of local conditions, the Election Officer reviewed the restrictions as a whole and found their across-the-board application to be a violation.  The Company cannot seek to apply such restrictions without regard to specific circumstances and then complain when those restrictions are evaluated by the Election Officer in the same manner.

              Based on this analysis, it is not relevant that the two individuals here did not give any notice since the Election Officer’s decision determined that the guidelines as a whole were, per se, in conflict with the Rules.  The decision does not award a remedy to the participants in theses two incidents, but protects the rights of all IBT members.[5]

              2.  The Company asserts that no evidence was presented to show that its guidelines have restricted “meaningful opportunity for candidates to meet with the electorate and engage in face-to-face campaigning.”  However, that is not the test.  The burden of proof is on the employer, not the Election Officer, to demonstrate that access “is neither necessary nor appropriate to meaningful exercise of democratic rights . . .”  Rules, Article VIII, Section 11(e).  See 1996 Election Rules Order, 896 F. Supp. at 1367.  As discussed above, the Election Officer finds that access to Roadway facilities is just as necessary and appropriate as access to the premises of any other IBT employer.  The Election Officer further finds that Roadway has not met its burden of proof, but has imposed significant limitations on IBT members’ rights without providing adequate factual justification.  If the test were only whether meaningful opportunities for campaigning were present, it would mean that the clear and precise rule could be revised and amended at will by every employer who so desired, and the Election Officer would be in the impossible position of seeking evidence to show that there was an absence of “meaningful opportunities” to campaign.  It was precisely to avoid such an impossible situation that the rule was made presumptive.  The District Court upheld the rule as written and Roadway is not free to change how the rule operates.[6]

              3.  The Company claims that extensive campaigning took place in 1991 without the filing of a single protest over its access guidelines.  The Election Officer does not view it as relevant to its current analysis whether a protest challenged the 1991 guidelines used by Roadway.  The fact is, that at the time these two cases had arisen, another protest had previously been filed about the use of the guidelines in this campaign.[7]

              Furthermore, the events of 1991 do not supply a direct precedent on the issue of employer access.  The 1991 Election Rules did not contain a Court-approved access rule.  Instead, the Election Officer ruled that such access was a “pre-existing right” belonging to members under Section 7 of the National Labor Relations Act as interpreted by Jean Country, 291 NLRB 11 (1988).  Thus, for each facility, the Election Officer was required to apply a Jean Country analysis.  Absent an express access rule that detailed the precise parameters of the right, the Election Officer was willing to negotiate far greater restrictions on access.  Here, there is a specific rule approved by the District Court that sets forth the restrictions which employers may impose.  The rule also places the burden on the employer of justifying additional restrictions, a burden that was not explicit during the 1991 election.  Thus, the Election Officer’s decision here is not controlled by any alleged failure of the 1991 Election Officer to expressly challenge the guidelines in question.

              4.  The Company further claims that the Election Officer in 1991 approved a 48-hour prior notice.  However, the case cited, Gabriel, P-873-LU710-CHI (September 26, 1991), aff’d, 91 - Elec. App. - 197 (SA) (October 4, 1991), did not involve the  members’ right-of-access to the parking lot.  Instead, it was an equal access case.  The Election Officer found that Walter Shea, a candidate for general president, and his supporters were allowed access to the interior of certain facilities owned by Consolidated Freightways, Yellow Freight, Carolina Freight, and Roadway.  At Yellow Freight, for example, Mr. Shea, other candidates on his slate, and his supporters were allowed to tour the facility unescorted for approximately one and one half hours.  Three of the employers agreed to settle the case by allowing candidates from the other slates to have equal access on a one-time only basis.  Roadway refused to agree to the settlement.  Accordingly, in an amended decision on September 30, 1991, the Election Officer ordered Roadway to provide equal access to the candidates on the other slates.

              In Gabriel, then-Election Officer Holland directed the candidates who would avail themselves of the remedy to give reasonable notice to the employers in question, which he determined should be 48 hours.  However, that remedy is not analogous to the situation here.  In Gabriel, candidates were being afforded a one-time opportunity to do what the limited-access rule does not allow:  entering the work areas of the employer facilities and campaigning for certain predetermined blocks of time.  It was reasonable to predict that campaigning inside the facilities by the major candidates themselves might require special preparations.  That remedial situation is substantially different from the campaign rights under the limited-access rule, which contemplates easy and routine access to the employee parking lots subject to the restrictions contained in the rule itself.  Indeed, the decision in Gabriel supports the Election Officer’s position:  where the Election Officer intends to require prior notice, he/she explicitly says so.  The lack of a general requirement of prior notice in the limited-access rule demonstrates that no such requirement was intended for 1996.

              5 & 6.  These two points are interrelated.  The Company argues that the Election Officer’s objection to “across-the-board” guidelines fails to take into account the large number of Company facilities and the requirement for consistency, under the Rules.  The Company further asserts that a facility-by-facility approach is unworkable given the administrative burden and need for consistency.

              These arguments miss the point.  Roadway is free to have a uniform policy as to how to manage their response to the limited-access rule, but that policy cannot restrict rights members have under the rule simply in the interests of Company efficiency.  If, for example, Roadway could explain and justify why a 24-hour-notice restriction was necessary at each of the facilities covered by the guideline, then a uniform policy would be acceptable.  If, however, there are only some facilities where their special circumstances would justify a 24-hour-notice restriction, then a uniform policy as to all facilities is overly broad and unacceptable because it places an unjustified restriction on the limited-access right of those members who seek to campaign at the facilities where such prior notice is not necessary.

              Again, the Election Officer is not saying that every guideline must be reviewed on a facility-by-facility basis.  However, any guideline which serves to restrict the members’ rights under the limited-access rule must be specifically justified as to the conditions in question.  If those conditions are not present at every facility, the restriction cannot be imposed at any facility where the condition does not exist.  An even-handed application of parking-lot access to all employers covered by the Rules requires this approach by the Election Officer.

              The fact that Roadway has many facilities across the country does not provide a basis for imposing restrictions on members’ rights.  The Election Officer promulgated--and the Court approved--only one limited-access rule which applies to all employers.  If the Rules intended a special exemption for large employers or for those with many facilities, they would have included one.

              In summary, the Election Officer finds that any Company requirement for access to its premises, beyond those contained in the Rules, may not be imposed absent the prior approval of the Election Officer.  In approving additional restrictions or limitations, the Election Officer will look to legitimate, articulable grounds for the restriction based on the specific situation of the employer or the situation at that particular site.  Vague claims of concern for security, efficiency, or safety will be insufficient.  As approved by the District Court, the burden of persuasion is on the employer, not the protester.  There is no reason employers--particularly large IBT employers with experience in applying the IBT access rule--cannot inform their facilities of the requirement to provide campaign access and the need to have plans in advance for accommodating campaigners, in accordance with the Rules.

              The Election Officer finds that Roadway’s guidelines impose impermissible restrictions on campaigning that substantially limit campaign rights, as protected in the Rules and the Consent Decree, and cannot be upheld.

              For the foregoing reasons, the protest is GRANTED.

              When the Election Officer determines that the Rules have been violated, she “may take whatever remedial action is appropriate.”  Article XIV, Section 4.  In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.

              The Election Officer orders the following:

1.  Roadway shall immediately cease and desist from enforcing its parking-lot access guidelines as applied to the International officer election.

2.  The Election Officer directs Roadway to permit campaigning in the employee parking lots at all facilities where it employs IBT members.  This grant of access will only be limited by the conditions set forth in Article VIII, Section 11(e) of the Rules.  IBT members who seek access to campaign will not be required to provide advance notice, campaign within 25 feet of the employee parking lot entrance, campaign for only two hours, or to limit their complement to four campaigners.  Roadway, however, may contact the Election Officer concerning access to those facilities or in those circumstances where it can articulate specific reasons why additional limitations may be appropriate.

3.  Within two (2) working days of receipt of this decision, Roadway will submit an affidavit to the Election Officer in which it acknowledges compliance with this decision.  Within two (2) days of posting the notice, Roadway shall file an affidavit with the Election Officer demonstrating compliance with this directive.

4.  In order that the employees of Roadway Express are fully advised of their rights, the Election Officer further directs that within seven (7) days of the date of this decision, Roadway will sign, duplicate, and post the “Notice to Roadway Express Employees” on all Roadway employee bulletin boards for thirty (30) consecutive days.

              An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules.  In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).

              Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile

(202) 624-3525.  A copy of the protest must accompany the request for a hearing.

                                                                                                  Sincerely,

                                                                                                  Barbara Zack Quindel

                                                                                                  Election Officer

cc:               Kenneth Conboy, Election Appeals Master

              Judith E. Kuhn, Regional Coordinator

              Bruce Boyens, Regional Coordinator

John Cetinske & Harold Yates

November 1, 1996

Page 1

              NOTICE TO ROADWAY EXPRESS EMPLOYEES

              IBT members have the right to campaign for or against candidates in the International officer election.  Roadway will permit campaigning in the employee parking lots at all facilities where it employs IBT members.  Prior to seeking access, IBT members seeking the right to campaign in the parking lot shall present reasonable identification to Roadway.  Such campaigning shall not interfere with the normal business activities of Roadway.

_______________________                            ______________________________

Date                                                                                    Roadway Express

This is an official notice which must remain posted for 30 consecutive days and must not be defaced or altered in any manner or be covered with any other material.

Approved by Barbara Zack Quindel, IBT Election Officer.