Protest Decisions

October 30, 1998

VIA FACSIMILE & FIRST CLASS MAIL

John Riojas

October 30, 1998

Page 1

John Riojas

335 Millwood Lane

San Antonio, TX 78216

Norma Abreau, Director of Human

   Resources

Challenge Air Cargo Inc.

3401 NW 67th Avenue

Building #805

Miami, FL 33122

Tom Leedham Campaign Office

P.O. Box 15877

Washington, DC 20003

Arthur Z. Schwartz, Esq.

Kennedy, Schwartz & Cure

113 University Place

New York, NY 10003

Doug Mims

Tom Leedham Rank and File Power Slate

Southern Region Vice President

1645 Brantford Drive

Tucker, GA 30084

John Riojas

October 30, 1998

Page 1

Re: Election Office Case No. PR-313-LU390-EOH

Gentlepersons:

John Riojas, a member of Local Union 657 and a candidate for At-Large Vice President, filed a protest pursuant to the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against the Hoffa Slate and Challenge Air Cargo, Inc. (“Challenge Air”) alleging that he was denied access to the employee parking lot at the Challenge Air facility at the Miami International Airport.  On October 29, 1998, Doug Mims, a member of Local Union

728 and a candidate for Southern Region Vice-President, sent a letter to the Election Officer stating that he was also denied access to the employee parking lot.

Challenge Air, through its head of security Jesus (Ben) Como, initially contended that absent a permit from the Metropolitan Dade County, Florida, Aviation Department, no campaigning could be permitted.  Challenge Air subsequently asserted that no campaigning can occur in the area where the protester wanted to campaign because it is a secured area, and the employee parking lot is within the secured area.

John Riojas

October 30, 1998

Page 1

The protest was investigated by Protest Chief Mary E. Leary.

The Challenge Air facility is located at the Miami International Airport.  It has a fenced- in perimeter.  There is a guard shack at the only entrance, where there are two driveways for ingress and egress.  Once inside the perimeter, the employee parking lot is located on top of a building; elevators from the roof-top parking lot must be used to gain access to the building’s interior. 

On September 29, 1998, Mr. Riojas and several other members arrived to campaign at Challenge Air between 3:15 to 4:00 p.m.  Security Officer Zamora communicated between the guard shack and Human Resources while Mr. Villipana, a security guard, worked in the guard shack. Mr. Zamora told Mr. Riojas and the other campaigners that they would not be allowed to campaign in the roof-top parking lot.  They were told by the guard that they could only stand by the guard shack outside the perimeter of the facility as the employee parking lot is in a secure area.

A permit granted by the Metropolitan-Dade County Florida Aviation Department dated August 18, 1998  had previously been issued to Victor M. Farvet granting authority to campaign in three locations with a limit of one person to each location.  These locations were on the outside of the guard shack and near 67th Avenue where it appears that vehicles enter the facility.   This permit was extended on September 17, 1998.  However, on September 11, 1998, the Office of the County Attorney, Aviation Division, issued a memorandum indicating that the property was “on the leasehold premises of Challenge Air Cargo, Inc.  If this is correct, Miami-Dade county would have no authority to grant the request.”

John Riojas

October 30, 1998

Page 1

The protesters report that they have observed vehicles driven by Challenge Air employees and customers enter the facility using the driveways with security gate arms.  The employees have a bar-coded ID card that they use to enter, and enter in the right-hand lane.  Customers enter by simple vehicle identification with the security guards opening the electronic gate arm.  The protesters also observed persons they believed to be non-employees entering through the gate in the left-hand lane, including drivers of tractor trailer rigs, customers, delivery persons, salespersons and non-employees.  These individuals were allowed in to do business at Challenge Air[1] or to pick up employees.  Challenge Air has restricted campaigning to the entrance and exit lanes of the facility.  By limiting Mr. Riojas’ and Mr. Mims’ campaigning to the area by the guard shack, the ability to campaign was severely limited because many vehicles did not stop at the gate at all when leaving and those that did were unable to stop due to cars behind them.  Due to the layout there is no way to have personal conversations with employees or to meaningfully campaign to the IBT members without access to the roof-top parking lot.  

Witnesses testified that the roof-top parking lot was under construction during the 1991 election. They were allowed to campaign in the roof-top parking lot, however, during the 1995-1996 International officer election.  Mr. Mims stated he personally campaigned there at least four times during the 1995-1996 election.

During the investigation, the Protest Chief attempted to reach the Director of Human Relations or the Director of Labor Relations several times and initially the calls were transferred to the head of security Jesus (Ben) Como and then to Wilmer Regalado, Business Agent for Local Union 390, prior to reaching Director of Human Resources Norma Abreau.  Ms. Abreau contends that the area inside the guard shack is a secure area and thus candidates and members can campaign outside the guard shack and in the empty parking lot.  The company stated that no one is allowed past the security guard shack and onto the driveway to the roof-top parking lot unless that person has a company ID and some type of U.S. Customs Service authorization. Following discussions on October 29, 1998, the Protest Chief telephoned Ms. Abreau requesting information about the pre-existing right to campaign in the parking lot based on conduct during the 1995-1996 International officers election and sent a facsimile requesting any other information the employer wished to submit during the investigation by close of business on October 29, 1998.  There was no response.  Further efforts were made on October 30, 1998 to contact a company representative or counsel.  No person with authority to discuss the matter was available to speak with the Election Office.

This protest arises under Article VIII, Section 11(e) of the Rules.  That section provides, in pertinent part: 

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 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.

John Riojas

October 30, 1998

Page 1

The foregoing rights are available only in connection with campaigning during the 1995-1996 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 the 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.  Such presumption may be rebutted, however, by demonstrating to the Election Officer that access to Union members in an employee parking lot is neither necessary nor appropriate to meaningful exercise of democratic rights in the court of the 1995-1996 election.  An employer seeking to deny access to Union members in an employee parking lot may seek relief from the Election Officer at any time. 

Rules Article VIII, Section 11(e) (“Section 11(e)”) (emphasis added).  This provision grants candidates in the IBT International officer election a limited right to enter employer property, without regard to the candidate’s status as an employee of the particular employer.  The right of entry is limited to employee parking lots; the right of entry may be exercised only for the purpose of, and in connection with, campaigning in the current IBT International officer election; and the right cannot be exercised on work time and cannot materially interfere with the employer’s normal business activities.

John Riojas

October 30, 1998

Page 1

Section 11(e) balances the property interests of employers with the critical need of candidates to the IBT International officer election to campaign face-to-face with the membership.  When the Rules were promulgated, the Pepsi-Cola Company (“Pepsi”) (an employer of approximately 7,500 IBT members) objected to the access right defined by Section 11(e).  Pepsi argued that the rule contravened Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), in which the Supreme Court held that non-employees do not have the right to conduct union organizing campaigns on employer property unless there is no other reasonably effective access to that membership.  The District Court rejected Pepsi’s argument and approved Section 11(e).  First, the District Court held that  Lechmere was “inapposite” because that case construed Section 7 of the NLRA, and the NLRB’s administrative interpretations of that statute.  United States v. IBT (“1996 Election Rules Order”), 896 F. Supp. 1349, 1366 (S.D.N.Y. 1995), aff’d 86 F.3d 271 (2d Cir. 1996).  In contrast, because the Consent Decree (and not federal labor law) provided the basis for the Section 11(e) limited access rule, the Lechmere standard did not govern the question of access to employer property in the supervised IBT International officer election.  Id. 

Second, the District Court found that Section 11(e) limited access rule was “both warranted and necessary” to the implementation of the electoral provisions of the Consent Decree. 

In the context of the 1991 IBT election, the Second Circuit recognized the importance of access to employer premises for the purpose of campaigning “where no feasible alternative for campaigning by candidates for union office is available.”  Yellow Freight, 948 F.2d at 104.  This Court agrees with the Election Officer that other methods of campaigning, including mailings, telephone campaigns, home visits, and alternative methods of face-to-face campaigning are woefully inadequate. . . .  Thus, the proposed rule is crucial to the achievement of a free, fair, and democratic election process, and this Court’s power to enforce the rule is firmly rooted in this Court’s authority pursuant to the All Writs Act.

1996 Election Rules Order, 896 F. Supp. at 1367. 

Third, the District Court concluded that the Section 11(e) limited access rule was “agreeable to the usages and principles of law”

because the rule sets forth procedures that limit the intrusion on an employer’s property rights to a minimum.  The right of access is 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 . . . 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 person is a candidate or other IBT person entitled to such access.  In addition, the right of access afforded by the rule is a presumptive right only, and any 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.”  (See Election Officer’s Memorandum at 29.) 

1996 Election Rules Order, 896 F. Supp. at 1367.

John Riojas

October 30, 1998

Page 1

In approving the Rules the District Court considered and rejected employer objections addressed specifically to the Section 11(e) limited access rule.  For purposes of implementing the Consent Decree, the District Court has held that this rule strikes the proper balance between an employer’s property interests, and the Consent Decree’s objective of promoting democracy and rooting out corruption.  Under Section 11(e), employers must grant non-employees access to employee parking lots unless an employer, by application addressed to a specific situation, demonstrates that access “is neither necessary nor appropriate to meaningful exercise of democratic rights in the course of the 1995-1996 election.”  Section 11(e). 

The Election Officer finds that Challenge Air’s assertion that security concerns overcome the right to campaign in the parking lot does not withstand scrutiny.  The employer allows customers, spouses and friends inside that area.  Access to the interior of Challenge Air’s property is controlled or controllable, at the elevators that serve the roof-top parking lot.  Moreover, there is evidence that campaigning in the employee parking lot occurred during the initial election.  The Election Officer therefore concludes that Challenge Air has not provided facts sufficient to rebut the presumption of access as set forth in Article VIII, Section 11(e).

Accordingly, the protest is GRANTED.

When the Election Officer determines that the Rules have been violated, he “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 Challenge Air to immediately permit campaigning in the employee parking lots at its Miami International Airport facility  where it employs IBT members.  This grant of access will be limited by the conditions set forth in Article VIII, Section 11(e) of the Rules.  Further, by November 2, 1998, Air Cargo will submit an affidavit to the Election Officer in which it acknowledges its compliance with this decision.  Any failure to comply with this directive will be promptly referred to  the United States District Court for the Southern District of New York for enforcement.

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, 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:

John Riojas

October 30, 1998

Page 1

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.

Sincerely,

Michael G. Cherkasky

Election Officer

MGC

cc:               Kenneth Conboy, Election Appeals Master