Kelly, 2021 ESD 83
OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: PATRICK KELLY, ) Protest Decision 2021 ESD 83
) Issued: March 15, 2021
Protestor. ) OES Case No. P-105-031121-FW
____________________________________)
Patrick Kelly, member of Local Union 952, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that the Orange County Transit Authority (OCTA) violated the Rules by barring him from campaigning in the parking lot at the Santa Ana bus base where its employees park their vehicles.
Election Supervisor representative Jeffrey Ellison investigated this protest.
Findings of Fact and Analysis
Local Union 952 will elect 12 delegates and 5 alternate delegates to the IBT convention. Protestor Kelly is competing in that election as an independent candidate for delegate against a full slate and a partial slate of candidates.
Respondent OCTA employs hundreds of Local Union 952 members as coach drivers and mechanics at several bus bases in Orange County CA. On Tuesday, March 9, 2021, protestor Kelly campaigned in the parking lot adjacent to the front door that employees use to report for work at the Santa Ana bus base. After a brief period, he was directed to leave the premises by a manager. Kelly complied, campaigning along the driveway approximately 75 feet in length that runs from W. MacArthur Blvd. to the parking lot gate. He campaigned there to arriving and departing vehicles for several hours without interruption or interference. Kelly filed this protest alleging a violation of the parking lot access rule. He seeks an order permitting him to campaign in the OCTA Santa Ana parking lot; he further seeks additional time for voting to March 22, 2021 from the current count date of March 16.
Counsel for OCTA told our investigator that the parking lot used by employees at Santa Ana is under construction to install charging stations for a fleet of EVs the authority will put into service. Counsel represented to our investigator that because of open trenches required by the construction activity, contractual and insurance commitments limit the lot to OCTA employees and contractor employees only. Photos verify the construction activity.
Article VII, Section 12(e) grants members of a local union the presumptive right to campaign on employer parking lots where employees park their vehicles, during the pre-election period of the delegates and alternate delegates election of that local union and for the International officers election. This right is available to all members of the local union, even those who are not employed by the employer where campaign access is sought. However, the presumptive right does not extend to campaigning that “would materially interfere with the normal business activities of the employer.” Further, the employer may rebut the presumption by demonstrating that access to the parking lot “is neither necessary nor appropriate.” The employer has barred Kelly, a non-employee, from campaigning in the Santa Ana lot. It also has barred OCTA employees from campaigning in that lot. Further, the employer has provided assurance that, absent the construction activity, it would permit campaign activity in the lot. Kelly indicated to our investigator that he has campaigned in the parking lots at other facilities of OCTA where no construction activity is ongoing.
OCTA through its counsel provided assurance that it would not interfere with campaign activity by any member along the 75-foot driveway at the Santa Ana bus base where Kelly campaigned after being ordered to leave the employee parking lot and would continue to treat campaigners equally at that facility, whether they are OCTA employees or not. Our investigator conveyed this assurance to Kelly during a morning phone call on Friday, March 12, 2021. During that same call, Kelly told our investigator he was campaigning without interference in the employee parking lot at another facility where OCTA employees work. This fact validated the representation OCTA counsel made that the construction activity at the Santa Ana facility – and no other reason – was why Kelly was ordered to leave the employee parking lot at Santa Ana.
Kelly’s protest seeks that he be readmitted to the employee parking lot at the Santa Ana facility to campaign. He also seeks an amendment to the Local Union Election Plan to extend the period of voting from March 16, 2021, the date currently set for tallying of ballots, to March 22.
Investigation of this protest is ongoing. Kelly alleged a violation of his presumptive right to campaign in the employee parking lot at the Santa Ana bus base. The employer is permitted the opportunity to rebut that presumption. The facts the investigation has established thus far show that construction activity is occurring in the employee parking lot at the Santa Ana bus base, that as a result OCTA has barred campaign activity by employees and non-employees alike in that lot but has not interfered with campaign activity on the access driveway to the parking lot, and that OCTA has not interfered with campaign activity in employee parking lots at other bus bases owned or operated by OCTA. Based on those facts, we find insufficient reason to conclude that Kelly can prevail on his claim that OCTA has violated Article VII, Section 12(e).
For these reasons, we DENY the protest on an interim basis. The counting of ballots will take place as scheduled on March 16, 2021. We will issue a final decision as circumstances warrant.
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. Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i). All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Barbara Jones
Election Appeals Master
IBTappealsmaster@bracewell.com
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, all within the time prescribed above. Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Barbara Jones
2021 ESD 83
DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
braymond@teamster.org
Edward Gleason
egleason@gleasonlawdc.com
Patrick Szymanski
szymanskip@me.com
Will Bloom
wbloom@dsgchicago.com
Tom Geoghegan
tgeoghegan@dsgchicago.com
Rob Colone
rmcolone@hotmail.com
Barbara Harvey
blmharvey@sbcglobal.net
Kevin Moore
Mooregp2021@gmail.com
F.C. “Chris” Silvera
fitzverity@aol.com
Fred Zuckerman
fredzuckerman@aol.com
Ken Paff
Teamsters for a Democratic Union
ken@tdu.org
Patrick Kelly
Pdk952@aol.com
Teamsters Local Union 952
office@teamsters952.org
OCTA
James Donich
Woodruff, Spradlin & Smart
jdonich@wss-law.com
Eric Jimenez
ejimenez@teamsters952.org
Bruce Boyens
boyensb@aol.com
Michael Miller
Miller.michael.j@verizon.net
Deborah Schaaf
dschaaf@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com