Protest Decisions

IN RE: ALEXANDRA POPE, 
Protest Decision 2000 EAD 39
Issued: October 17, 2000
OEA Case No. PR060501AT

See also Election Appeals Master decision 00 EAM 11 (KC)

Alexandra Pope, a member of Local 805, filed a pre-election protest pursuant to Article XIII, Section 2(a) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules").[1]  Pope alleges that Waymon Stroud, president of Local 728 since November 1, 1999, terminated five business agents: (1) in retaliation for their support of Doug Mims, candidate for southern region Vice President in the 1999 southern rerun election; and (2) in order to chill opposition to Hoffa and his supporters in the 2000-2001 delegate and officer election. The business agents that were terminated were: (a) Doug Mims, candidate for southern region Vice President in the 1996 election, 1998 rerun election and 1999 southern rerun election; (b) Jimi Richards, hired as an organizer; (c) Greg Charron, a business agent since June 1990, an elected trustee of Local 728 and recently appointed vice president of Local 728; (d) Doris Sanders, an organizer since August 1996 and a Local 728 business agent since March 1998; and (e) Benny Stephenson, a business agent since September1996. The protestor further alleges that the five business agents were terminated upon the advice, support and direction of Vince Hickman, the personal representative of General President Hoffa to Local 728. The protestor asserts that these actions violated Article VII, Section 11(a) & (g) of the Rules and the provisions of Title I of the Labor-Management Reporting & Disclosure Act of 1959 ("LMRDA") incorporated in Article XII of the Rules.

Stroud denies that the termination of the five business agents was retaliation for Mims' candidacy in 1999, or an effort to chill opposition to the Hoffa campaign in 2000-2001. Instead, Stroud asserts that the terminations of Mims, Richards and Charron were layoffs, motivated by financial considerations, and that the terminations of Stephenson and Sanders were due to poor job performance. Further, Stroud and Hickman assert that the termination decisions were made by Stroud, with Hickman providing advice to Stroud because he was a new local union president.

Election Administrator representative J. Griffin Morgan investigated the protest.

In 2000 EAD 1 (August 1, 2000), we addressed these allegations in a decision that we subsequently withdrew, see 2000 EAD 9 (August 4, 2000), after a release of claims signed by Mims was brought to the attention of the Election Administrator. After further investigation, we have reconsidered our findings in 2000 EAD 1 and have decided to deny the allegations of the protest in their entirety.

Findings of Fact

Background. Local 728 is the second largest local in the southern region. It is located in Atlanta, Georgia. Local 728 and Local 528 have separate union offices and separate union halls located immediately adjacent to each other in what is now known as the Mathis Labor Center. They share a common parking lot.

Weldon Mathis was the principal officer of Local 728 in the 1980s. Weldon Mathis was also the Secretary-Treasurer of the IBT at the time the 1989 Consent Order was entered. In 1991, he chaired almost all of the Teamster convention because of General President McCarthy's ailing health. The 1991 convention was the first convention to which delegates were elected and the Election Officer was present to conduct the nominations for international officers.

Donald Scott and Doug Mims led a political drive that replaced the Mathis Administration in Local 728. On June 1, 1990, Scott was installed as the president of Local 728, along with Mims as vice president, Richard Black as secretary-treasurer and Stroud as recording secretary. Ken Redding, Dennis Moore and Greg Charron were also hired as business agents on June 1, 1990.

In 1991 and again in 1996, Mims was elected as southern regional Vice President on the Carey slate. He was an unsuccessful candidate for southern regional Vice President in the 1998 rerun election and the 1999 southern rerun election. Mims claims that on many occasions following the 1999 election he made known his intentions to run for International office in the 2000-2001 elections, identifying Stroud as a person to whom such intentions were made known. As we shall discuss below, Stroud and others deny this.

Following Hoffa's election in 1998, Stroud and Redding shifted their support from Mims to Charlie Gardner, the Hoffa Slate candidate in the 1999 southern rerun election. Subsequent to the rerun election, on or about June 12, 1999, Stroud filed charges against Scott for giving himself a $200 per week raise without receiving prior approval of the executive board. Three days later, Scott fired Stroud for allegedly signing a contract with a small bakery employer that allowed the employer to replace retiring union members with temporary employees. After his termination from Local 728, Stroud was employed by the IBT to work as an assistant trustee of Local 1129, under Ken Hilbish, president of Local 528.

The charges brought by Stroud against Scott were not heard by the local executive board or the Florida/Georgia Conference, but by a three-person committee appointed by General President Hoffa. The hearing was in August 1999. In October 1999 the hearing panel re-instated Stroud to his job with Local 728 and suspended Scott from membership in the IBT for one year. On October 27, 1999, General President Hoffa appointed Vince Hickman as his personal representative to Local 728.

Upon the removal of Scott from membership and as president of Local 728, the local's executive board consisted of six members: Black, secretary-treasurer; Stroud, vice president; Redding, recording secretary; and Charron, Gwynetta Brown and Robert A. Wood, trustees. The by-laws of Local 728 do not provide for an automatic successor if the office of the president is vacated. The executive board was split in its choice of a successor. Stroud, Redding and Brown supported Stroud for president. Black, Wood and Charron supported Charron.

On October 29, 1999, at approximately 10:30 a.m., Hickman met with the executive board. He told them that in his opinion, since there was no provision in the by-laws as to who Scott's successor should be, it was his experience that the vice president succeeded the president. He then told the executive board that if they did not elect the vice-president, Stroud, as president, he would strongly recommend to General President Hoffa that Local 728 be placed in trusteeship. Hickman then left the room. The six executive board members continued to meet.

Although it is the practice of Local 728 to tape executive board meetings and take minutes of those meetings, recording secretary Redding neither taped the October 29, 1999 meeting nor kept minutes of that meeting. Redding explained that even though Charron flew from Savannah to Atlanta for the meeting, he thought it was just an opportunity for Hickman to personally meet the members of the executive board and not a meeting of the board.

The October 29 executive board meeting broke up with the executive board still evenly split on the successorship issue. Subsequently, Black changed his position and decided to support Stroud for president. Black stated that the basis for changing his decision was that he would lose his job if the local were placed in trusteeship. He said he could not afford to lose his job and that after a conversation with Stroud, he was assured that under Stroud's presidency he would keep his position as a business agent with the local and his salary.

On November 1, 1999, at a specially called meeting of the executive board, Stroud was elected president. Stroud, Black, Redding and Brown voted in favor of Stroud. Charron voted against Stroud and Wood abstained. On November 5, 1999, upon the motion of Stroud, Charron was chosen as the new vice president. On November 15, 1999, Mims and Richards were terminated as employees of Local 728. Mims retired from Union employment effective November 21, 1999.

On March 9, 2000, southern regional Vice Presidents Ken Wood and Tyson Johnson met with the business agents of Local 728 and then met privately with Hickman and Stroud. On March 11, 2000, Charron was terminated. On March 20 and 29, 2000, Sanders and Stephenson, respectively, were terminated.

Local 728's Financial Condition. Local 728 has lost more than 10 per cent of its members (a loss of approximately 1000 members) over the last ten years. Most of the losses were due to company closings or older members retiring and younger workers not joining the Union. Secretary-treasurer Black stated that the only loss of members in a single large block occurred when approximately 300 members crossed picket lines during the 1997 UPS strike and did not maintain membership thereafter.[2] Black stated that otherwise the membership loss was a gradual decline over the 10-year period from June 1990 until August 2000. Some of the lost revenue from lost membership was offset by higher dues.

A review of the financial records provided by Local 728 from January through December 1999 shows that Local 728's revenue to expense was as follows:

Running Total

January 1999 - revenue exceeded expenses by $15,358.94 + $15,358.94

February 1999 - the Local lost $22,444.75 - $ 7,085.81

March 1999 - revenue exceeded expenses by $33,681.85 + $26,596.04

April 1999 - the Local lost $ 908.62 + $25,687.42

May 1999 - revenue exceeded expenses by $24,446.62 + $50,134.04

June 1999 - the Local lost $ 3,954.60 + $46,179.44

July 1999 - revenue exceeded expenses by $19,553.34 + $65,732.78

August 1999 - revenue exceeding expenses by $ 1,602.48 + $67,335.26

September 1999 - revenue exceeded expenses by $ 9,137.70 + $76,472.96

October 1999 - revenue exceeded expenses by $ 94.92 + $76,567.88

November 1999 - the Local lost $30,972.46 + $45,595.42

December 1999 - the Local lost $22,658.35 + $22,937.07

Thus, at the beginning of November 1999, the month in which Mims and Richards were terminated, the local's year-to-date revenues exceeded expenses by $76,000.00. During that month, the local lost almost $31,000, followed by a loss of more than $22,000 in the following month.

Stroud stated in his interview that he reviewed ten years of audited financial reports after assuming the presidency, in order to determine the Local's financial status. The audited financial statements for this period show as follows:

Year	Starting Fund Balance	Revenue to Expenses	Ending Fund Balance
1991	$601,989	($73,809)	$528,180
1992	$528,180	($130,767)	$397,413
1993	$397,413	($36,556)	$360,857
1994	$360,857	$48,731	$409,588
1995	$735,894 (difference from prior year's ending balance reflects addition of one-half ownership of building to fund balance)	($67,351)	$668,543
1996	$668,543	$222,178	$890,721
1997	$890,721	($168,658)	$722,063
1998	$722,063	($21,714)	$700,349
1999	$798,216 (unexplained why does not match year end 1998)	$65,523	$863,739

The fund balance of $863,739 as of December 31, 1999, is considerably larger than the fund balance eight years earlier. However, this difference is not significant, due to the addition of the local's real estate interest to its fund balance in 1995, as well as the effect of inflation over these years.

The Overnite campaign has placed a financial burden on Local 728. In addition, Black stated the local previously purchased its staff cars, but now finances them. The local has not given its business agents a raise in four years. The local did not need to sell any of the certificates of deposits, valued as of November 1999 at $332,004 in order to pay its bills. In August 2000, subsequent to the terminations, it sold one certificate that had matured for $83,000, reinvested $50,000 and placed the other $33,000 in the checking account to help solve a cash flow problem (reimbursement to IBT owed before UPS remits dues). In general, Local 728 is not in a strong financial condition, but it is also not in as dire a condition as Stroud represented to the Election Administrator.[3]

Termination of Doug Mims and Jimi Richards. Doug Mims was the vice president of Local 728 from June 1, 1990 through January 1999. He chose not to run for reelection in Local 728 in 1998. Mims was a full time business agent for Local 728 from June 1, 1990 until January 1992, when he assumed the duties of southern regional Vice President. At that point, he became a "part-time" business agent and was paid $100 a week, so that he could maintain his enrollment in the Central States Health and Welfare Pension Fund. Mims maintains that he worked as a business agent on a limited basis when he was in the Atlanta area from 1992 through June 1999. After he lost the election in the southern rerun, he returned to his status as a full-time business agent on June 14, 1999, at the same time that Stroud was terminated by Scott. From 1990 through his termination in November 1999, Mims was responsible for representing over-the-road drivers under the National Master Freight Agreement and some small employers units that did not have master agreements.

In 1993, Mims was appointed to the national UPS negotiating committee. In 1994, he was appointed to the national freight negotiating committee. From 1994 through 1999, he was director of the tank haul division with responsibility for negotiating contracts with the three major employers in that division.

Mims and Sanders jointly represented the over-the-road drivers under the National Master Freight Agreement. Since August 1996, Sanders had been employed as an organizer, but the IBT reimbursed Local 728 for her salary. Sanders' employment with Local 728 as a business agent began in March 1998. Mims had more experience than Sanders. His seniority as a business agent dated to June 1990, although from January 1992 through June 1999, his service to the local was minimal.

Stroud and Hickman both stated that the only basis for Mims being selected for termination was the financial need of the local to eliminate unnecessary business agents. According to them, Mims was one of two business agent selected for termination because he had the second lowest seniority. At the same time that Mims (along with Richards) was terminated, however, Local 728 hired Earl Parker, a long time Hoffa supporter, as an organizer. The protestor argues that Parker's hiring establishes that the reason offered for Mims's termination is a pretext.

At the time of his discharge, Mims earned $1,100 per week. Parker was paid $753.20 per week, almost the equivalent of his weekly earnings at Consolidated Freight. Parker earned $19.08 per hour at Consolidated Freight ($19.08 x 40 = $763.20). Local 728 did not pay Parker's benefits after the local hired him. Instead, Parker continued to work two days per week for Consolidated Freight, which paid him for his time and paid his benefits. Parker and Stroud both stated that Parker worked five days per week for Local 728 and two days per week for Consolidated Freight. Local 728's bookkeeper, Tony Layfield states it was his understanding that Parker worked three days for Local 728 and two days for Consolidated Freight.

Standing alone, we cannot find that the hiring of Parker proves a violation of the Rules, or alone proves that the reasons for the termination of Mims and Richards are pretextual. Thus, it is clear that the local paid less money for Parker's services than it paid to Mims or Richards. On the other hand, the local also received less hours of work from Parker than it did from Mims or Richards. At the most, Parker's hiring gives reason to pause when trying to resolve the question whether the decision to terminate Mims and Richards was based on reasons other than the financial condition of the local.

There are two other reasons to find, as we do, that the explanation offered for the termination of Mims and Richards was a pretext. The primary evidence that supports this conclusion is the claim of Charron concerning the events of October 29, 1999.[4] Thus, Charron claims that he spoke with Hickman on October 29, following the executive board meeting. Charron claims that during their conversation Hickman received a phone call, and that Hickman stated that the call was from an IBT attorney. According to Charron, Hickman asked Charron to leave the room. Charron paced outside the door to the office being used by Hickman. Charron states that he heard Hickman tell the attorney that it looks like a split board and that it was all Mims' fault. Hickman stated that Mims had his nose in everything and that Hickman would see him out no matter what. Charron reduced what he heard to writing in a notarized statement two weeks before Mims was terminated.

Hickman stated that after he left the October 29 executive board meeting, he went to Paul Parker's office, which he was using. According to Hickman, Redding and Stroud subsequently came to the office and discussed the dispute over the opening created by Scott's removal from office, saying that "it's the same old thing, a 3-3 split between the executive board." Hickman stated that he told them they needed to get it done and repeated that if the executive board could not make a decision, he would strongly recommend trusteeship.

Hickman unequivocally denied that he met with Charron after the executive board meeting on October 29, 1999. Hickman stated that the first time he had a meeting with Charron in his office was in the middle of December or early January, after Mims' and Richards' November termination. Hickman also stated that when he was informed by Redding and Stroud that the executive board was split 3-3, he did not know that Charron was the other candidate being proposed for the presidency of Local 728. Hickman states that he simply knew it was a 3-3 tie and did not know the identity of the other candidate.

Hickman also stated that he did not recall having a conversation with an attorney from the IBT on October 29. Hickman stated that he never said to anyone that he needed to get Mims out of the local. Hickman stated that he has spoken with IBT attorneys Gary Whitlen and Pat Szymanski regarding Local 728, but did not recall speaking with either of them on Friday, October 29.

Redding stated in his interview that after he walked out of the October 29 executive board meeting he went to speak with Hickman. Redding stated that he told Hickman it was hopeless, the three people opposed to Stroud were not going to change. Redding stated that Hickman knew the deadlock was between Charron and Stroud. Redding stated that he made clear that the executive board was equally divided before the October 29 executive board meeting and that they had been divided since October 25. Redding stated that the deadlock was between Stroud and Charron, with the caveat that the executive board talked about other potential candidates.

Trustee Robert Wood stated that he saw Charron meet with Hickman following the October 29 executive board meeting. Wood stated that Charron told him that "I have to meet with Vince". Wood then saw Charron walk into Paul Parker's office, which was the office that Hickman was using. Wood remained at the local union hall and gave Charron a ride to the airport after Charron met with Hickman. Charron's return flight to Savannah departed at approximately 1:30 p.m. that day.

Wood also stated that he spoke with Hickman in Paul Parker's office on October 29. He met with Hickman before the executive board meeting. In his meeting, Wood told Hickman he was supporting Charron for the presidency. Wood stated that Hickman told him that Local 728 needed to elect Stroud as its president.

Pat Szymanski, IBT General Counsel, stated that he had a telephone conversation with Hickman on October 29, 1999. Szymanski stated that he made the call to Local 728 and asked for Hickman. Szymanski believes that the phone conversation was toward the end of the day and that he was returning a phone call from Hickman.

Szymanski's recollection of the phone conversation with Hickman comes from a pad of paper he keeps on a daily basis on which he logs down in order the telephone conversations that he has had with various individuals during the day. On October 29, the log consisted of two pages. From looking at the two-page log, Szymanski stated that he thought the phone call took place at approximately 5:00 or 6:00 p.m., but it was hard to tell precisely because he does not list his written work, just his conversations and telephone work.

Szymanski's independent recollection of the phone conversation was that on October 29, Hickman reported to him that Hickman had been successful in getting the local together and the executive board had elected Stroud as the president. After reviewing his phone note which stated "[phone call] Vince Hickman, not official . . ." Szymanski speculated that not official meant that Hickman stated during the phone conversation it was not official, but it looked like it would get done and the executive board would not be split. However, Szymanski repeated that his independent recollection of the phone call had not changed and was that Hickman reported to him that Hickman had been successful in getting the local together and the executive board had elected or would elect Stroud as the president. Szymanski also stated that he only recalls one conversation with Hickman on the issue of the executive board split and Stroud being elected the president.

Szymanski did not recall any conversation about Mims during his conversation with Hickman. Szymanski stated that he would have been careful about any decisions being made regarding Mims. Szymanski was asked if Hickman could have made a comment about Mims that he did not recall. He stated that many people did make comments to him. He said that if Hickman had told him that Mims was responsible for the split in the Board that he may not recall such a comment. He then stated that if Hickman told him he was going to get Mims out of the local, that he would remember that comment. Szymanski stated that he would have responded that Hickman had no authority to do that as the General President's representative and he would have "laid down the law" to Hickman.

Based on the foregoing, we credit Charron's version of the conversation he overheard Hickman having in Paul Parker's office on October 29, and do not credit Hickman's denial of Charron's claim. In doing so, we rely particularly upon the fact that Charron reduced his version of the events to writing before the termination of Mims and Richards. We also rely upon Wood's testimony, which corroborates Charron's claim that he had a conversation with Hickman in Paul Parker's office that day, after the executive board meeting. Further, we note that Redding's testimony, while consistent with Hickman's claim that he spoke with Redding about the executive board deadlock on October 29, was inconsistent with Hickman's claims about his lack of knowledge about Charron's candidacy.

We also conclude that Szymanski's phone call with Vince Hickman on October 29 was not the call that interrupted Charron's conference with Hickman and was not the conversation that Charron states he overheard. Charron left for the airport in the early afternoon of October 29. Charron was back in Savannah before 4:00 p.m., before the time Szymanski spoke with Hickman. That call could not be the conversation that Charron overheard.

Moreover, at the time that Charron states he met with Hickman, the executive board was still split 3-3 and Hickman could not have been reporting that the problem was solved (even unofficially), as Szymanski recalled. Instead, it was after Charron left for Savannah that Black spoke with Redding. Redding convinced Black that he could not save his own job or Mims' job if the local went into trusteeship. It was after this conversation, which both Black and Redding say occurred on the Overnite picket line in the afternoon of Friday, October 29, 1999, that Black began to shift his support from Charron to Stroud.

Given the content of Szymanski's note "not official", it appears that Hickman learned late in the day of October 29 of Black's change in position and told Szymanski that it appeared that the executive board deadlock would be broken in favor of electing Stroud president. This could not have occurred during the phone conversation that Charron overheard on October 29 before he left for the airport to fly back to Savannah.

Further, Karen Utter, an attorney for the IBT, stated that Gary Whitlen did not call Vince Hickman or Local 728 on Friday October 29, 1999. We thus cannot establish who was on the other end of the phone conversation that Charron overheard Hickman having early in the afternoon on October 29. For the reasons stated above, however, we find that the conversation occurred and transpired as stated by Charron. This finding supports our conclusion that the reasons offered by Stroud and Hickman for the termination of Mims and Richards are a pretext.

We also find that the reasons offered for the discharge of Mims and Richards were a pretext because of Stroud's shifting explanations for firing Richards. (On reinvestigation, Stroud asserted that Richards' job performance also played a role in the decision to terminate him.) It is important in understanding this point to relate some of the background in the hiring of Richards by the local.

Richards was employed by the Florida/Georgia Conference as an organizer. The Conference, Local 528 and Local 728 jointly paid his salary. At some point during his employment, Local 528 refused to continue to pay its share. Richards' salary was then split between the conference and Local 728. During the June 11, 1999 executive board meeting, trustee Gwenita Brown raised questions regarding Richards' status, how much union money he had spent and the number of new members he had brought to the local. A discussion followed on the benefit of organizing new shops versus getting employees in existing shops to join the union. On or about August 2, 1999, Richards was hired by then-president Scott as a full-time employee of Local 728 working mostly as an organizer and part-time as a business agent. At the August 11 executive board meeting, the hiring of Richards was announced. Trustee Brown's only question regarding the hiring was about Richards' car allowance. Trustee Wood questioned Scott about whether the members would understand the hiring of Richards. Scott responded that Richards had the highest organizing win ratio in the country. Richards had just reported to the board on the status of contract negotiations with three companies recently organized and the possibility of a strike at Overnite. Stroud raised no question and voiced no opposition to the hiring of Richards.

Mims and Richards were terminated on November 15, 1999. Stroud initially stated unequivocally that the only reason Richards and Mims were selected for lay-off was that they were the last two business agents hired, and that the local needed to cut expenses. In our original investigation, Stroud asserted that only these two considerations led to the terminations. In the re-investigation interviews, however, Stroud also stated that job performance was a consideration in the decision to terminate Richards. Stroud relied on the June 11, 1999 executive board minutes as evidence of the Board's dissatisfaction with Richards.

We find that Stroud's shifting rationale for Richards' termination undermines his claim that the termination was simply a financially driven personnel decision in which seniority was used to pick the candidates for elimination. When a party offers shifting explanations for his conduct, as Stroud has done here, it is reasonable to infer that he is trying to offer cover for another reason for his action. We conclude that this is so here.[5] 

Richards returned to work within the trade following his termination. He remains an active IBT member. After his discharge, however, Mims applied for the pension he was eligible for by virtue of his employment by the Union. He also attempted to remain an active employee by working off the referral list for motion picture work. He kept his membership active until he was given a withdrawal card on February 24, 2000, by secretary-treasurer Black. Mims filed no grievance, charge or protest with his local union, the Georgia/Florida conference, the IBT, the ethical practices committee, Election Officer Cherkasky, the Election Administrator or the IRB regarding his discharge or the issuance of the withdrawal card. He took no affirmative action to protect his membership status and his eligibility to run for International office. Furthermore, in order to receive the vacation pay to which he thought he was entitled Mims signed a waiver and release of any and all claims against Local 728 and its officers arising from his employment or discharge.[6]

Visit to Local 728 by Southern Region Vice-Presidents Johnson and Wood on March 9, 2000. In the last week of February 2000, there was a southern regional meeting in Orlando, Florida. At that meeting, IBT General Counsel Szymanski asked southern regional Vice President Johnson if he had heard of problems in Atlanta. Southern regional Vice President Wood also heard that Stroud was having some problems as a new president of a local, but does not recall from whom he heard of Stroud's problems.

Johnson and Wood stated that they went to Local 728 to offer their support and assistance to Stroud. Johnson also stated that there was a concern about a clash between Stroud and Hickman. Johnson recalled sitting in on a business agents' meeting and then meeting with Hickman, Stroud and Wood. Wood recalled meeting with Stroud, Hickman and Johnson, but did not remember sitting in on a business agents' meeting.

Johnson stated that he had received complaints from freight members regarding Sanders' job performance before arriving at Local 728. He discussed freight issues with the business agents responsible for freight during the business agents' meeting.

Both Johnson and Wood stated that the meeting with Hickman and Stroud was to encourage Stroud and advise him on the operations of the local. They both stated that they had heard that Stroud was getting isolated at the local and staying in his office. Their advice was to get out of the office and meet with the members. They further advised him to make sure that grievances were properly handled, but did not make a specific reference to Sanders. They told him to have a plan for the local and to share his plan with the staff and executive board. They said they told Stroud that he was the president and that he had to make the hard decisions, but did not discuss terminating specific individuals or terminating non-loyal business agents in general. Neither Johnson nor Wood recalled using the term "getting your house in order." "Getting your house in order" is the term Stroud used when reporting the meeting to others.

Termination of Greg Charron. Charron had worked as a business agent for Local 728 since June 1990. From June 1990 through his termination in March 2000, Charron was responsible for the membership in southern Georgia. He shared that responsibility with Dennis Moore, who worked the same region and had been hired on the same day as Charron.

Stroud and Hickman stated that the purpose for terminating Charron was because they did not believe that there was a need for two business agents to serve the approximately 700 members in south Georgia. Stroud stated that he chose Moore over Charron because Moore came from UPS and most of the members in southern Georgia were UPS employees. Moore only represented UPS employees in the Southern Region, and only has UPS experience. Charron worked for UPS for 14 years and worked for Yellow Freight for ten years. He represented members at UPS, freight and industrial employers in south Georgia.

Moore attended all the UPS grievance panel meetings along with Redding (UPS business agent for Atlanta) and was a substantially more active and experienced UPS agent than Charron. A review of Moore's work assignment shows that he represents 1,115 members (not 700) in the south Georgia region. Of that number, 976 work for UPS and 139 for freight and industrial employers. Charron has not been replaced.

Charron was the candidate who was nominated to run against Stroud in the executive board meeting that split the executive board in half. At the November 1, 1999 executive board meeting, Charron was the only executive board member to vote against Stroud. After Stroud became president of the local, Charron was nominated by Stroud to succeed him as vice president. The executive board unanimously approved the motion.

Following his termination, Charron and Hickman got into a shouting match prior to an executive board meeting at the local union hall. Charron filed charges with the IRB and criminal charges with the Atlanta police department against Hickman as a result of this altercation. Charron also filed charges with the Florida/Georgia conference regarding his discharge.

Termination of Benny Stephenson. Stephenson was hired as a business agent for Local 728 in September 1996. He was employed as such until he was terminated by Stroud in March 2000. Stroud and Hickman state that Stephenson was terminated for poor job performance. Stroud stated that Stephenson had been lying to the members and that many members had complained about Stephenson. When asked for the names of members or copies of any written complaint, Stroud did not produce any documents nor recall any specific names.

One month before his termination, on February 29, 2000, Stephenson attended a Yellow Freight meeting along with several organizers working on the Overnite campaign. The purpose of the meeting was to encourage Teamsters working at Yellow Freight to assist with the Overnite campaign. After the meeting was over, the four organizers and Stephenson went to breakfast. One of the organizers, Ron Goulet, then rode back to the union hall with Stephenson. On the ride back, Goulet questioned Stephenson about the political situation in Local 728. Stephenson's response was to state that he kept his nose out of politics and just did his business agent job. Goulet then stated that "brother Hoffa is trying to clean things up. The IBT is going to clean up Local 728 and get rid of the TDU bastards." Stephenson, who is a member of TDU, did not respond to Goulet's comment. Stephenson wrote down the comment immediately and told numerous friends at Local 728 about it.[7]

Secretary-treasurer Black did not corroborate Stroud's view that Stephenson was doing a poor job. Black stated that Stephenson did a great job as a business agent. Tyson Johnson also did not corroborate Stroud's statement that Stephenson was doing a poor job. Johnson was specifically asked in his interview if he had received any complaints regarding Stephenson. He stated that he had not received complaints about Stephenson. Earl Parker, who had been working as an organizer following the termination of Richards and Mims on November 15, 1999, replaced Stephenson.

Termination of Doris Sanders. When Mims became southern regional Vice President in January 1992, Robert Stanifer was hired as a business agent to represent the road drivers. Stanifer worked as a business agent until January 31, 1999, when he retired. Byron Wise, who was employed as a business agent in March 1994 and worked until March 1998, assisted Stanifer. Wise was not Stanifer's equal as a business agent; he did mostly clerical, computer and office work. When Wise retired in March 1998, Sanders, who began her employment as a business agent in March 1998, replaced him.

On December 9, 1999, approximately 3½ weeks after Mims was terminated, Sanders wrote a letter to Local 728 President Stroud expressing her inability to properly do the job of representing road drivers, which historically had been represented by two business agents.

When Hickman read Sanders' December letter, he immediately recommended to Stroud that she be terminated. Hickman recommended that Stephenson, who was representing the mechanics and city drivers under the National Master Freight Agreement, replace her. Stroud did not follow Hickman's recommendation.

Stroud stated that Sanders worked well with him at first, and that even after he received the letter he was hoping that she would work out. However, he stated that after she wrote the letter, she did very little work except for suspensions and terminations. Secretary-treasurer Black, who stated that Sanders' work performance was not so great and that she basically laid down on the job after writing the December letter, corroborated Stroud's perception of Sanders' work performance. Southern regional Vice President Tyson Johnson, who is the southern regional freight chair, received complaints from members regarding Sanders. Sanders was terminated in March 20, 2000, her first day back from sick leave, and replaced by new business agent Jimmy Walker.

Analysis and Conclusion

The Rules protect the right of IBT members, including those employed by the International Union or any IBT subordinate body, to run for International office and to support the candidates of their choice for such offices, as well as the correlative right to refuse to support the candidacy of any person. As the Election Officer has stated:

Since the Rules protect campaign activity as a personal right of members, the exercise of that right cannot be interfered with by labor organizations or employers, including the IBT as an employer.

Hoffa, P812 (August 16, 1996). Therefore, the IBT and all IBT subordinate bodies, including Local 728, are prohibited from using the electoral preferences or activities of its employees as factors in any employment-related decision. Article VII, Section 11(g) of the Rules states this protection: "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."

In cases where Article VII, Section 11(g) (formerly Article VIII, Section 11(f)) applies, to prevail on an improper retaliation claim, a protester must show that conduct protected by the Rules was a motivating factor in the adverse decision or conduct in dispute. The Election Officer will not find retaliation if he concludes that the union officer or entity would have taken the same action even in the absence of the protester's protected conduct. Gilmartin, P32 (January 5, 1996), aff'd, 95 EAM 75. See Leal, P51 (October 3, 1995), aff'd, 95 EAM 30; Wsol, P95 (September 20, 1995), aff'd, 95 EAM 17.

We cannot find that Local 728's termination of Mims violated Article VII, Section 11(g) of the Rules. Our reinvestigation of this protest has led us to conclude that Mims did not intend to run as a candidate for International officer or delegate in the 2000-2001 elections at the time of his discharge by the local.[8]  Thus, although Mims claimed that he had made his candidacy intentions known before his termination, the release signed by Mims subsequent to his termination, along with his retirement and his failure to internally protest his discharge or the local's issuance to him of a withdrawal card, and even the fact that it was Pope, and not Mims, who filed this protest, are all, in our view, inconsistent with Mims' claim that he had intended to be a candidate in the 2000-2001 elections and had made this intention known. Mims' actions in the period following his termination were simply not the actions of a person who then intended to run for International Vice-President, and whose termination (and the loss of membership which ultimately followed due to his failure to work within the jurisdiction of the local) would mean that he would lose his candidate eligibility.

In reaching this result, we conclude, as explained above, that the reasons offered for the termination of Mims and Richards were a pretext. Thus, consistent with those findings, we conclude that Hickman was a driving force in the discharge of Mims, given the statement that Charron overheard Hickman make to the effect that Mims had his nose in everything and that Hickman would see him out no matter what. Moreover, we remain skeptical that the financial reasons given for the discharge of Mims and Richards contributed to their discharge, although we do acknowledge that Local 728's finances were not completely healthy. Finally, as explained above, Stroud's shifting justification for the discharge of Richards also supports our finding that the reasons offered for the November 15, 1999 discharges were a pretext for the real motivation.

However, given the new evidence offered during the reinvestigation which has led us to conclude that Mims did not intend to be a candidate for International office in 2000-2001, we conclude that Hickman's statement about Mims is, at the most, evidence of his hostility towards Mims and his role in local union politics. What is missing, however, and what is necessary in order to conclude that a Rules violation is present here is sufficient evidence that Mims was discharged in retaliation for his 2000-2001 candidacy intentions. Simply put, we cannot find that evidence on this record because Mims conduct in reaction to his discharge is not that of a member who had decided to run for election as an International Vice-President and was then deprived of that opportunity by the actions of his political enemies.

We have also found that Local 728 was not entirely candid about the reason for its termination of Mims. In our view, Mims was fired because he was seen by Stroud and Hickman as a political adversary within the local, who would be opposed to and would undermine Stroud's administration. In other words, Mims was fired just as Stroud was after he dared to challenge Scott in June 1999.

But the record here does not establish that Mims was terminated in retaliation for his candidacy plans, for the simple reason that the record upon reinvestigation does not establish that Mims intended to be a candidate, or was seen by his political adversaries as having such plans. It may be that the termination of Mims is privileged under Finnegan v. Leu, 456 U.S. 431 (1982), and its progeny, under which elected officers of a union may terminate appointed officials such as Mims because their continuance in office is seen as antithetical to the ability of the elected officers to carry out their program. On the other hand, it may be that Mims can state a claim in another forum concerning the alleged impropriety of his November 1999 termination (just as Stroud successfully mounted a claim against his termination by Scott), a matter about which we express no opinion. We cannot, however, find that the termination of Mims violates the Rules for the simple reason that the record upon reinvestigation does not support the conclusion that the termination was motivated by Mims' exercise of his right to run for International office in the 2000-2001 election.[9]

We deny the remaining protest allegations because we find insufficient evidence of improper, electoral-related retaliation. First, the sole basis for our finding in 2000 EAD 1 that the discharge of Richards was improper was that his discharge, as a person who had less seniority than Mims, was carried out in order to establish a pretext for the discharge of Mims, namely, Local 728's claim that the two least senior agents were discharged. Having now concluded that the local's discharge of Mims was not in retaliation for Mims' candidacy intentions, and thus not in violation of the Rules, we must also conclude that Richards' termination was not a Rules violation.

The other three terminations took place approximately nine months after the southern rerun election and four months after Stroud became president of Local 728. Those terminations also took place approximately one year before Local 728's delegate elections. There is no clear nexus in time between the terminations of Charron, Sanders and Stephenson and protected election activity. There is also no clear nexus in time between the terminations of Charron, Sanders and Stephenson and Stroud's acquisition of the authority to terminate them.

The termination of Sanders does not appear to have been motivated by retaliation for her support of Mims in his past and planned future campaign activity, or of other dissident candidates. Nor does her termination appear to be motivated by an attempt to chill opposition to the Hoffa campaign. Sanders was retained in November 1999, when Mims was terminated. Sanders was retained by Stroud in December 1999, after she wrote her letter stating that she could not perform the job by herself, and her termination was recommended by Hickman. Black corroborated the reason provided by Stroud for her termination: poor work performance. The evidence adduced in our investigation does not establish that Sanders would not have been terminated even in the absence of her support for anti-Hoffa candidates in the upcoming elections.

The evidence fails to show that the terminations of Charron and Stephenson would not have occurred but for protected activity. There is no protected activity on their part closely related in time to the discharge. Against this, we do not find the visit of Tyson and Wood to Local 728, and their advice to Stroud to "get your house in order," establishes a Rules violation. As with Sanders, there is a significant distance in time between the discharges and either (1) the 1999 southern rerun election or (2) the 2001 delegate elections. Thus, it is difficult to conclude that the terminations were based on activity protected under the Rules and would not have occurred because of non-protected Local 728 and IBT political motives.[10]

Accordingly, the protest is DENIED in its entirety.

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 Administrator 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

Suite 1000

885 Third Avenue

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 Administrator for the International Brotherhood of Teamsters, c/o International Brotherhood of Teamsters, 25 Louisiana Ave., NW, Washington, DC 20001, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.

 

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

 

cc: Kenneth Conboy

J. Griffin Morgan

2000 EAD 39

 

DISTRIBUTION LIST VIA UPS NEXT DAY AIR:

 

Alexandra Pope 322 North Fullerton Avenue Mountclaire, NJ 07042	Doug Mims 1645 Brantford Drive Tucker, GA 30084
Waymon B. Stroud, Sr. President, Local 728 2540 Lakewood Ave., S.W. Atlanta GA 30315	Vince Hickman International Representative 25 Louisiana Ave., N.W. Washington, DC 20001
J. Douglas Korney Korney & Heldt 30700 Telegraph Rd. Suite 1551 Bingham Farms, MI 48025	Greg Charron 345 Oak Pointe Dr. Richmond Hills, GA 31324
Doris Sanders 287 Greenwood Lane Peachtree, GA 30269	Jimi Richards 2875 Ackworth Due West Rd. Kennesaw GA 30152
Patrick Szymanski IBT General Counsel  25 Louisiana Ave. NW Washington, DC 20001	Benny Stephenson c/o Alexandra Pope 322 North Fullerton Avenue Mountclaire, NJ 07042
Bradley T. Raymond Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman 32300 Northwestern Hwy.  Farmington Hills, MI 48334	Paul Alan Levy  Public Citizen Litigation Group 1600 20th St. N.W. Washington, D.C. 20009-1001
Barbara Harvey Suite 1800 Penobscot Building 645 Griswold Detroit, MI 48226	Betty Grdina Yablonski, Both & Edelman Suite 800 1140 Connecticut Ave. N.W. Washington, D.C. 20036
Robert M. Baptiste Baptiste & Wilder, P.C. 1150 Connecticut Ave. N.W. Suite 500 Washington, D.C. 20036