IN RE: CHARLENE PEETE-JACKSON, Protestor.
Protest Decision 2006 ESD 112
Issued: February 27, 2006
OES Case No. P-05-032-111505-AT
(See also Election Appeals Master decision 06 EAM 17 and 06 EAM 17A)
Charlene Peete-Jackson, a member of Local Union 639, 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"). She alleged that the Executive Board of Local Union 639 removed her from her position as a shop steward because she was a member of the opposition slate in Local 639's officer elections in 2003 and 2004 and because she will be a candidate in the upcoming delegate elections.
Election Supervisor representative J. Griffin Morgan investigated this protest.
Findings of Fact
1. Background
Local 639 is a Washington, DC local with over 8,000 members. Its membership is comprised of employees of two large employers, UPS and District of Columbia Public Schools, and a number of smaller ones, including grocery stores, bakeries, and waste management companies.
For many years prior to 2003, the local union was led by John Catlett as president and John Steger, first as vice-president and then as secretary-treasurer. Steger is currently an International Trustee and member of the IBT's General Executive Board. Another member of the incumbent slate was Local 639 recording secretary and business agent James "Woody" Woodward, who is also a current IBT International Representative. In 2003, the incumbent slate headed by Catlett, Steger, and Woodward lost the local union officer election to a slate led by Thomas Ratliff and John Gibson, respectively the current president and secretary-treasurer). Ratliff and Gibson were business agents in the Catlett-Steger administration who split from that slate to run against it.
To certify the Ratliff-Gibson slate's narrow victory, challenged ballots had to be resolved. They could not because of irregularities, and the election was challenged with both the Department of Labor and the IBT. While the challenges were pending, the Ratliff-Gibson slate ran the local union for approximately six months. In June 2004, an IBT trusteeship returned the Catlett-Steger administration to office. A re-run election occurred in November 2004, and the Ratliff-Gibson slate won and acceded to office.
2. Facts.
Peete-Jackson was a candidate for business agent on the Catlett-Steger slate in the 2003 and 2004 officer elections. As of October 2005, neither Peete-Jackson nor the slate had declared their intentions to run in the delegate and alternate delegate election, but it was widely anticipated that the competing factions would face each other again in this election.
Peete-Jackson is a delivery truck driver for Ottenberg's Bakery. In September 2005, approximately 120 members of another union were laid off from the bakery; Ottenberg's stopped baking its own products and began to purchase products from non-union H & S Bakery. The Teamsters drivers were unaffected by the layoffs and were told no immediate plans existed to lay off delivery drivers.
In late October 2005, Peete-Jackson heard a rumor that H & S Bakery had purchased Ottenberg's Bakery. Peete-Jackson called Richard Cress. Cress was a business agent at local 639 under the Catlett-Steger administration and a candidate in the 2003 and 2004 elections with Peete-Jackson but is now a regional manager at Ottenberg's. Cress told Peete-Jackson that as far as he knew the company was not sold. In response to her question, Cress also told Peete-Jackson that IBT vice president Richard Volpe was the head of the IBT Bakery Conference.
Ms. Peete-Jackson then called her Business Agent Doug Webber. She told Webber that she had heard that H & S Bakery had purchased Ottenberg's Bakery. She asked Webber to call Ottenberg's Human Resources Director Walker to find out whether the rumor was true. Peete-Jackson stated that she told Webber that she had spoken with Cress and that Cress told her to call Volpe. She stated that Webber responded that he would call the IBT.
Webber agreed that Peete-Jackson called him and asked him to call the Walker at Ottenberg's. However, Webber stated that Peete-Jackson told him that she had received a call from Volpe and that she did not know who Volpe was and how he had obtained her home phone number. Webber stated he explained who Volpe was to Peete-Jackson.
Webber reported his conversation with Peete-Jackson to Ratliff because he was concerned that the IBT was not following procedure and was bypassing Local Union 639 and going directly to a shop steward. Ratliff shared Webber's concern that the IBT, which placed his local in trusteeship after the 2003 election, was bypassing his leadership to communicate directly with members. Ratliff called Ed Kiser, an assistant to General President Hoffa, to find out how to reach Volpe. Ratliff then called Volpe and asked him why he called Peete-Jackson rather than communicating with Local Union 639 directly. Volpe denied calling Charlene Peete-Jackson or knowing who she was.
Volpe confirms that Ratliff called and accused him of contacting one of his members and not going through the local. Volpe reports that he told Ratliff: "I do not know what you are talking about." He said that Ratliff "was hot" and sounded upset. Volpe stated that he explained to Ratliff that as head of the bakery division he often gets calls from members and that the normal procedure is to forward the information from those calls to the member's local union for follow-up. Volpe stated that Ratliff sounded relieved to learn that Volpe had not called Peete-Jackson.
Webber called Peete-Jackson back and told her that he had relayed their previous conversation to Ratliff. Webber told Peete-Jackson that Ratliff had called Volpe and that Volpe denied knowing Peete-Jackson or ever speaking to her. Peete-Jackson responded by stating I don't know why you spoke with Volpe; I did not call Volpe; I do not know Volpe; I called Richard Cress.
Ratliff states that he was upset by this incident. He believed that Peete-Jackson had not been honest when she told Webber that Volpe had called her. Ratliff stated that he wanted an explanation for her conduct. Ratliff directed Local 639 Secretary-Treasurer John Gibson to have Peete-Jackson appear at the next executive board meeting to explain her conduct.
On October 26, 2005, Gibson sent Peete-Jackson a letter requesting that she appear before the executive board on November 2. When she received October 26 letter, Peete-Jackson called Gibson and explained that she could not attend the 2:00 p.m. executive board meeting because she had a scheduling conflict. Peete-Jackson explained to Gibson that she volunteered at her children's school on Wednesdays, including Wednesday, November 2. Gibson told her that she could come late to the meeting and that when she arrived the executive board would interrupt its normal business to meet with her.
Peete-Jackson states that she then called Gibson back 8 times and when she could not reach him left him a voice mail stating that she could not attend the executive board meeting on November 2 and that she wished to reschedule. Peete-Jackson states that school dismisses at 3:15 p.m. and that she could have been at the union hall, with her children, by 4:00 p.m. Peete-Jackson states that although she could have attended the November 2 executive board meeting, she did not attend meeting on the advice of Arden D'Amico, who told Peete-Jackson that, pursuant to Section 21 of Local Union 639's bylaws, she had the right to receive a copy of the charges against her at least 15 days prior to appearing before the executive board.
Gibson denies that Peete-Jackson called him eight times or that she left him a voice mail stating that she would not be able to attend the November 2 meeting. Francis Oden, the receptionist for the local union, stated that all calls come through the receptionist. Oden stated that after being the receptionist for two years she can recognize the voices of many of the members and stewards who call the local on a regular basis, including Peete-Jackson. Oden did not remember Peete-Jackson calling on numerous occasions to speak to Gibson. The two staff members who relieve Oden for her one hour lunch break and her morning and afternoon breaks also could not recall that Peete-Jackson called in during the times they were on the phones.
Peete-Jackson wrote a letter dated Saturday, October 29 that she stated she mailed Tuesday, November 1, advising Gibson and the executive board that she wanted to be advised 15 days in advance of the meeting of the charges against her.
Gibson denies that he received a copy of Ms. Peete-Jackson's October 29 letter prior to the November 2 executive board meeting. He stated the first time he saw that letter was on November 16, when it came as an attachment to another letter. Both letters are date stamped by the Local Union as received on November 16.
Oden stated that immediately prior to the November 2 executive board meeting, Gibson told her that when Peete-Jackson comes in, to call the conference room where the meeting was being held and they would come get her.
Peete-Jackson did not attend the November 2 executive board meeting. Webber, who is not a member of the executive board, was called into the meeting. Webber told the board that: (1) Peete-Jackson had called him and told him that she had been called by Richard Volpe; (2) he informed Ratliff of the content of his telephone conversation with Peete-Jackson; (3) Ratliff called Volpe and Volpe denied ever calling Peete-Jackson; and (4) he called Peete-Jackson back and she changed her story.
Webber also informed the board that in May 2005 there had been another incident involving Peete-Jackson. In that incident, Ratliff, attending an IBT function in Las Vegas, called Webber to say that a serious complaint had been lodged against Webber and that Ed Kiser of the IBT would conduct an investigation when they returned to Washington, DC. The charges against Webber involved comments he allegedly made to Peete-Jackson about Woody Woodward, former Recording Secretary and Business Agent of Local 639 and currently an IBT International Representative. Peete-Jackson and Webber were asked to appear at the offices of Local Union 639 so that Kiser could speak with them. Prior to the scheduled meeting with Kiser, Peete-Jackson called Webber and told him that Woodward had exaggerated everything and that she was not coming to the local union to meet with Kiser. Webber met with Kiser and was informed by Kiser that based on his investigation that the matter was being dropped.
After saying these things, Webber was excused from the executive board meeting. Ratliff then told the executive board that he wanted Peete-Jackson removed as a shop steward. A motion to remove Peete-Jackson was made by one of the trustee members of the board; the motion was seconded and passed unanimously.
Analysis
Retaliation for exercising one's political right to run as a delegate or for exercising any political right protected by the Rules is prohibited.
Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules is prohibited.
Rules, Article VII, Section 12(g).
Proving a retaliation case requires three elements: 1) activity protected under the rules; 2) the charged party having actual or constructive knowledge of that protected activity; and 3) a showing that the protected activity was a motivating factor in the decision or the conduct at issue. The existence of a reasonable independent basis for the decision or conduct at issue is a defense to an allegation of improper motivation so long as it is not shown to be a pretext. There can be no violation if the decision maker would have taken the same action in the absence of the protective activity. Ulloa, 2001 EAD 135 (February 6, 2001); Ruscigno, 2001 EAD 105 (January 26, 2001); Pope, 2000 EAD 39 (October 17, 2000); Hoffa, P857 (September 11, 1996), aff'd, 96 EAM 234 (September 19, 1996). In other words, a retaliation case is analyzed under the rules just as a discrimination case is under the NLRA. See generally Wright Line, 251 NLRB 1083 (1980), enf'd, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).
Retaliation in contexts other than discharges, including removal from position as a steward, is also prohibited. Williams, 2001 EAD 152 (February 8, 2001); Thornsberry, 2001 EAD 172 (February 16, 2001).
Assuming without deciding that the protestor has proved the first two elements of a retaliation case, we hold that she has not proved the third element, that Ratliff and the executive board of Local Union 639 were motivated by Peete-Jackson's potential candidacy or support for the opposition slate in deciding to remove her from her position as a shop steward.
We find that Ratliff was motivated in large part by his belief that Peete-Jackson told Webber that she had been called by Volpe. Ratliff decided to have Peete-Jackson appear before the executive board after he learned that Volpe had not called Peete-Jackson. Ratliff believed that Peete-Jackson had not told the truth to her business agent. That belief, reinforced by (1) Peete-Jackson not appearing at the executive board meeting to explain this miscommunication, and (2) her prior failure to meet with Kiser regarding another miscommunication incident, constitutes a reasonable independent basis for Ratliff's request to the executive board that it remove Peete-Jackson from her shop steward position.
Accordingly, we DENY this protest.
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. 20007-5135, 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 112
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
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@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
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Charlene Peete-Jackson
11107 Elon Court
Bowie, MD 20720
Cpj639@hotmail.com
Thomas Ratliff, President
Local Union 639
3100 Ames Place, N.E.
Washington, D.C. 20018
Doug Webber, Business Agent
Local Union 639
3100 Ames Place, N.E.
Washington, D.C. 20018
Richard Volpe
East Region Vice President
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
rvolpe@teamster.org
J. Griffin "Griff" Morgan
Elliot, Pishko, Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com