Protest Decisions

IN RE: Raul Rodriguez,
Protest Decision 2001 EAD 277
Issued: March 28, 2001
OEA Case No. PR020711WE

Raul Rodriguez, member of Local 630 and candidate for delegate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). He alleges that Fishking Processors, Inc. ("Fishking") removed Nina Panameno from her position as uniform monitor in retaliation to her nomination for delegate.

Election Administrator representative Dolly Gee investigated this protest.

Findings of Fact

Rodriguez filed this protest on behalf of Panameno who ran for delegate on his slate. Panameno has been a utility worker on the production line of Fishking at its Fish I plant in Los Angeles since 1976. She also assisted in the warehouse, where she ordered and transmitted brochures for salesmen.

Around July 1998, Panameno was given the additional assignment of uniform monitor for Fish I. As uniform monitor, Panameno arranged for the cleaning, distribution and return of uniforms from departing employees on a daily basis. She would rotate back to her regular duties on the production line when she completed her uniform monitor duties.

As part of her uniform monitor tasks, Panameno regularly requested attendance lists and lists of new, terminated and temporary employees from Jesse Gil, an assistant with the Human Resource department. In addition, supervisors would sometimes give her this information verbally. She would also review invoices from the uniform company. Panameno submitted copies of some of the lists that she received. She used these lists to arrange for the provision and retrieval of uniforms to new and departing employees. Panameno also maintained her own handwritten list of employee names for her own use in keeping track of the uniforms.

In May 2000, Panameno was asked to work for two to three hours per day performing clerical duties in the office. In November 2000, she was asked to work full-time in the office on a temporary basis.

Panameno was never active in the union before her candidacy in the current delegate election. On January 6, 2001, she was nominated, and by January 10 the nomination results were posted at her workplace.

On January 11, Panameno's supervisor, Alex Rodriguez, told her that she would cease work in the office. Panameno claims that an office co-worker, Edith Ortiz, asked her whether she had anything to do with the union and then stated that Alex Rodriguez had told her that because Panameno had become a strong supporter of the union, she could no longer work in the office. Ortiz denies this.

On January 12, 2001, Alex Rodriguez told Panameno that she would no longer be needed at the warehouse. Panameno returned to her position as uniform monitor. However, the company did not respond to her requests for the status of certain employees. Since Gil left the company in December 2000, Panameno had requested this information from human resource generalist Alicia Sandoval. Alex Rodriguez told Panameno that Sandoval had sent him an email ordering him not to give her information.

On February 9, 2001, Panameno was removed from her duties as uniform monitor and returned to the production line as a utility worker. Alex Rodriguez gave her prior notice of this on February 7, 2001, and told her that she had done a good job, but added that the position of uniform monitor "doesn't exist" and "was invented."

Panameno filed a grievance against Fishking. In a letter dated February 22, 2001, to Local 630 divisional representative Jesus Gonzales, Sandoval cited the following reasons for Rodriguez's actions: (1) Panameno's office assignment was only temporary; (2) bargaining unit employees had complained that she repeatedly locked herself in the uniform room with co-worker, Marco Ochoa; and (3) she repeatedly requested an employee roster, listing all employees for all plants. Notably, Sandoval wrote:

[I]n the history of Fishking, we have never received this type of request from a Uniform Monitor …somehow, the other five Uniform Monitors have managed to keep track of all 409 employee uniforms for the past 30 years without the use of an Employee Roster. Could this possibly have something to do with her choice to run for delegate? Fishking Processors, Inc. is not in the practice of providing employee lists to bargaining unit employees.

Both Panameno and Elizabeth Panduro, another uniform monitor, stated that the requests for employee information, made after the nomination results were posted, were no different than the requests made before the posting. Panameno denies that she ever requested an employee roster for all employees at all plants.

Both Panameno and Ochoa deny that they spent any time together in the uniform room. Panduro stated that she spends practically the entire day with Panameno and has never seen Panameno in the uniform room with Ochoa. In her letter, Sandoval admits that no formal complaints were lodged with regard to this matter and that the company did not investigate the allegations. Sandoval stated that Alex Rodriguez felt that a change would be necessary to prevent any more problems.

Local 630 did not pursue the grievance. Gonzales explained that this was so because there was no contract violation and because Panameno retained her utility worker status and lost no wages or benefits.

Analysis

Article VII, Section 11(f) of the Rules prohibit "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" when directed toward the exercise of any election-related right. See Parisi, P1095 (December 2, 1991). A protest claiming retaliation cannot be sustained unless a threat or an actual act of retaliation is established. Giacumbo, P100 (October 13, 1995), aff'd, 95 EAM 27 (October 25, 1995).

To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the decision or the conduct in dispute. The Election Administrator will not find retaliation if he concludes that the same action would have been taken in the absence of the protected conduct. See Gilmartin, P32 (January 5, 1996), Leal, P51 (October 3, 1995), aff'd, 95 EAM 30 (October 30, 1995); Wsol, P95 (September 20, 1995), aff'd, 95 EAM 17 (October 10, 1995). Cf., Wright Line, 251 NLRB 1083 (1980), enf'd, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).

Here, within a day after the notice of her nomination for delegate was posted, Panameno's employer began reducing her responsibilities at the plant. We credit Panameno's testimony concerning Ortiz's comments about Alex Rodriguez's admission as to the motivation for these acts, which we find to be corroborated by the timing and lack of credible explanation for the employer's actions. We thus conclude that Fishking's actions were motivated by Panameno's delegate candidacy. This conclusion is further bolstered by Sandoval's February 22, 2001 letter, in which she acknowledges the company's concern that Panameno's request for employee information was connected to her decision to run for delegate.

We also conclude that that there is insufficient evidence that Fishking would have taken the same action in the absence of Panameno's protected conduct. There is no evidence to support the allegation that Panameno requested an employee list for the purpose of campaigning, or that her post-nomination actions were inconsistent with actions taken by her prior to her nomination. We also find that there is no evidence to support the allegations that Panameno locked herself in the uniform room with a co-worker, and conclude that this reason for the employer's action is pretextual.

For these reasons, we find that Fishking improperly retaliated against Panameno for her involvement in Local 630's delegate elections and GRANT the protest.

Remedy

When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interference with the election process.

We order Fishking to immediately reinstate Panameno to her position as uniform monitor and reimburse her for any economic loss she may have suffered due to this violation. We also order Fishking to cease and desist from further retaliation in violating the Rules, and to post the notice attached hereto on all bulletin boards in its facility for a period of thirty days, beginning April 3, 2001. Affidavits attesting to the initiation and completion of that posting, and identifying each posting location, shall be filed by Fishking with the Office of the Election Administrator by April 6, 2001 and May 7, 2001, respectively.

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 all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15^th

Street, N.W., 10^th Floor, Washington, D.C. 20005 (fax: 202-454-1501), all within the time 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

2001 EAD 277

DISTRIBUTION LIST (BY UPS NEXT DAY AIR UNLESS OTHERWISE SPECIFIED):

NOTICE TO ALL LOCAL UNION 630 MEMBERS EMPLOYED BY FISHKING PROCESSORS

The Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") provide that IBT members are to be free from employer retaliation for activity protected under the Rules, including the right to run for IBT convention delegate, and the right to campaign for IBT delegate and International officer candidates.

The Election Administrator enforces these provisions of the Rules. After an investigation, the Election Administrator has determined that Fishking improperly transferred employee and IBT member Nina Panameno from her prior job assignment as uniform monitor in retaliation for her protected right under the Rules to stand as a candidate in the Local 630 delegate election. As a remedy for this violation of the Rules, the Election Administrator has ordered Fishking to immediately reinstate Panameno to her position as uniform monitor and reimburse her for any economic loss she may have suffered due to this violation. The Election Administrator has also ordered Fishking to cease and desist from any further retaliation against its employees in violation the Rules, and to post this notice for thirty days beginning April 3, 2001.

No one, including any employer, may retaliate or threaten to retaliate against you because of your exercise of any right under the Rules, including your right to stand as a candidate or your right to support or not support any candidate.

Any attempt to interfere or retaliate against you because of your political activity in connection with the International officer or convention delegate election should be reported to William A. Wertheimer, Jr., Election Administrator, at 727 Fifteenth Street, NW, Tenth Floor, Washington, D.C. 20005; (800) 565-VOTE.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

This is an official notice from the Election Administrator for the International Brotherhood of Teamsters that must remain posted for thirty (30) consecutive days, and must not be altered or defaced in any manner, or covered by any other material.

[1]    The protestor has not sought relief under Article XIII, Section 4(u).