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Office of the Election Supervisor for the International Brotherhood of Teamsters

              November 6, 1996





James P. Hoffa

November 6, 1996

Page 1



James P. Hoffa

2593 Hounds Chase

Troy, MI  48098


Greg Tederman

Pepsi-Cola Bottling Company

Pepsi-Cola Drive

Latham, NY  12110


Pepsi-Cola Bottling Company

1 Pepsi Way

Somers, NY  10589

John T. Mitchell

Tobin and Dempf

33 Elk Street

Albany, NY  12207


Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman, P.C.

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

James P. Hoffa

November 6, 1996

Page 1



Re:  Election Office Case No. P-1100-JHS-NYC




James P. Hoffa, a member of Local Union 614 and a candidate for general president, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) alleging that on October 17, 1996, he and several other IBT members were denied access to campaign in the employee parking lot at Pepsi-Cola Bottling Company (“Pepsi Bottling” or “employer”) in Latham, New York.


James P. Hoffa

November 6, 1996

Page 1



Pepsi Bottling acknowledges that it removed Mr. Hoffa and the others from its property, but states that Mr. Hoffa was abusive towards its management representative.  The employer argues that it has a strict no-solicitation rule at its facility.  The employer further states that the Election Officer has no jurisdiction to enforce the parking lot access rule over it and that “the candidate or candidates must demonstrate inaccessibility as a condition prior to seeking access to out Company’s property.”  Pepsi Bottling contends that there is other adequate access at the home of IBT members in the region at a large Teamsters union hall within a few miles of the company plant and immediately adjacent to its property on a county highway right-of-way.


New York City Protest Coordinator Barbara C. Deinhardt investigated this protest.


Pepsi Bottling employs about 217 Teamster members.  It operates on a 24-hour-per-day basis.


On October 17, 1996, Mr. Hoffa and several supporters were campaigning in Pepsi Bottling’s employee parking lot during the afternoon shift change.  At approximately 3:20 p.m., employer representative Greg Tederman came out of the plant and ordered the campaigners

to leave the premises.  Pepsi Bottling contends that Mr. Hoffa was abusive and threatened

Mr. Tederman with a lawsuit and grabbed his arm.  When Mr. Hoffa informed Mr. Tederman that the Rules permitted access to employee parking lots, the latter contacted the police, who escorted Mr. Hoffa and his supporters off the property.    


Article, VIII, Section 11(e) of the Rules creates a limited right-of-access to IBT members and candidates to distribute literature and seek support for their campaign in any parking lot used by union members to park their vehicles in connection with their employment.  While “presumptively available,” this right is not without limitations.  It is not available to any employee on work time and candidates and their supporters cannot solicit or campaign to employees who are on work time.  It is also restricted to campaigning that will not materially interfere with an employer’s normal business activities.


In approving the Rules, United States District Court Judge David N. Edelstein considered an objection to the right-of-access to employer premises filed by Pepsi-Cola Company (“Pepsi”).  Pepsi contended that the rule contravenes the Supreme Court’s ruling in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).  The Court rejected this argument and held as follows:


[T]his Court’s authority to enforce the Consent Decree extends not only to the parties to the Consent Decree but also to employers who “are in a position to frustrate the implementation of [the Consent Decree] or the proper administration of justice.” . . . [T]he only way to ensure that each candidate has a meaningful opportunity to meet with the electorate and to explain his or her views is to provide candidates with a right of access to employer premises.


James P. Hoffa

November 6, 1996

Page 1



U.S. 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 also stated 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 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 Cetinske et al., P-886-LU480-SCE et seq. (November 1, 1996) (decision on remand) (appeal pending), the Election Officer found that:  (1) the right-of-access is fully enforceable against employers because of the importance of the right to campaign on their property; (2) the rule is designed to minimize intrusion on the legitimate operations of the employer; and (3) the burden is on an employer to demonstrate that further restrictions on access are warranted.  Based upon the finding of the District Court, the Rules and prior decisions of the Election Officer, the employer’s argument that the Election Officer lacks jurisdiction over it is without merit.


Pepsi Bottling also argues that candidates have the burden of demonstrating inaccessibility as a condition of access.  This argument is also rejected.  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.


Here, Pepsi Bottling seeks to deny access based upon prior restricted access.  The Election Officer has specifically rejected this contention in the past.  See Carlucci, P-916-LU705-CHI (September 23, 1996) (rejecting 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) (rejecting the offer of access to another parking lot at the facility because it would interfere less with business operations). 


To the extent that Pepsi Bottling contends it did not have to grant access to the protester based upon his abusive behavior, the Election Officer also find this argument without merit.  Without ruling on whether Mr. Hoffa was abusive to its manager, the Election Officer notes that the alleged conduct occurred after its manager had instructed Mr. Hoffa and the other campaigners to leave the premises and that the refusal to allow access was not based on any conduct on Mr. Hoffa’s part.


Accordingly, 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.


As a result, the Election Officer directs Pepsi Bottling to immediately permit campaigning in the employee parking lots at its Latham, New York facility.  This grant of access will only be limited by the conditions set forth in Article VIII, Section 11(e) of the Rules.  Further, within two (2) working days of receipt of this decision, Pepsi Bottling will submit an affidavit to the Election Officer in which it acknowledges its compliance with this decision.


James P. Hoffa

November 6, 1996

Page 1



An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the RulesIn Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1966).


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, D.C. 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.






Barbara Zack Quindel

Election Officer



cc:               Kenneth Conboy, Election Appeals Master

Barbara C. Deinhardt, New York City Protest Coordinator