IN RE: HOFFA UNITY SLATE,
Protest Decision 2001 EAD 330
Issued: April 27, 2001
OEA Case No. PR032111AT
The Hoffa Unity Slate 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"). The protest alleges that Earl Parker was discharged from his position as Local 728 business agent in retaliation for exercise of his rights under the Rules, including his delegate candidacy.
Election Administrator representative J. Griffin Morgan investigated the protest.
Findings of Fact and Analysis
In October 1999, Donald Scott, president of the local, was suspended from office and membership in the IBT for a period of one year by IBT General President James P. Hoffa. Following Scott's suspension, the local's executive board elected Waymon Stroud to serve as president. Stroud hired Parker as a business agent in November 1999.[1] Scott's suspension ended by its terms in October 2000, but he was not permitted to resume the presidency of the local. He brought suit in U.S. District Court and, on February 8, 2001, obtained an injunction requiring his restoration to that office. Immediately after resuming office, Scott rehired Greg Charron as business agent for southern Georgia; Charron had previously served in that capacity but had been fired by Stroud in March 2000.
Scott's return to office and resumption of duties as an agent servicing contracts in the Atlanta area resulted in a surplus of agents there. In mid-March, Scott asked the executive board to approve a redistribution of the work among officers and business agents and a reduction by one in the appointed staff, that one being Parker. Of the local's agents, Parker had the least experience, with slightly more than one year's service. Moreover, Parker's knowledge was limited to freight city contracts. The executive board adopted Scott's recommendation four votes to two, one member not voting.
As principal officer of the local, Scott had bylaw authority to appoint, suspend or discharge business agents at any time. Despite this authority, he presented the reorganization plan to the executive board for approval. Moreover, he delayed the presentation until after the delegate election had concluded in order to avoid any effect on the election.
The Hoffa slate and Parker contend that Parker's layoff was in retaliation for his delegate candidacy and his outspoken support for the Hoffa slate. We have previously held that "to prevail on an improper retaliation claim, a protestor 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 protestor'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." Pope, supra, 2000 EAD 39 at p. 15. See also Hart, 2001 EAD 189 (February 23, 2001), aff'd in relevant part, 01 EAM 45 (March 16, 2001).
To support his claim of retaliation, Parker argues two points. First, he claims he was the agent most vocal in his support for the Local 728 Unity and Hoffa Unity slates. This fact, he asserts, requires the inference that the adverse employment action he suffered at the hands of an executive board dominated by his political opponents was the result of his Rules-protected activity. However, we reject any standard that dispenses with the necessity of a causal link between the protected activity and the adverse action. Here, there is no proof that the protected activity motivated the layoff. In particular, Parker offered no evidence attacking the fact that Scott's reinstatement by the federal court resulted in a surplus of agents in the Atlanta area. Further, Parker does not argue that one of the other Atlanta-area agents should have been laid off instead of him. All appointed business agents - Jimmy Payne, Paul Parker, Earl Parker, Jimmy Walker, and Johnny Gabriel - were candidates on the Local 728 Unity slate and all were elected, leaving Scott no alternative but to lay off an elected delegate. Of these Atlanta-area agents, Earl Parker had the least seniority and experience.
Second, Parker argues that Charron, a political ally of Scott, was rehired just a month before Parker was laid off. Parker contends these events demonstrated political activity, not merit, motivated his layoff. In response, Scott asserted two reasons for rehiring Charron. First, he believed the southern region of Georgia required more than the one existing business agent to service it properly; retaining Atlanta-based Parker while laying off Charron would not have addressed this issue. Nor would transferring Parker to the south have imbued him with Charron's 10 years of experience as an agent there or familiarize him with the UPS and freight contracts to be serviced in that region. Second, Charron had a pending suit against the local [2], and Scott asserted his rehiring would stop the accumulation of back pay for which the local might eventually be held responsible.
We DENY this protest. We reject the contention that Parker's layoff was in retaliation for activity protected by the Rules. We find the redistribution of work and consequent layoff of Parker was unrelated to Parker's candidacy and partisan activities. Further, because Charron had considerably greater experience, we find that retaining him in the south while laying off Parker in Atlanta does not constitute evidence of retaliatory animus.
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 15th Street NW, Tenth Floor, Washington, DC 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 330
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Earl Parker
129 Fletcher Ford Road
Fayetteville, GA 30215
IBT Local 728
2540 Lakewood Avenue SW
Atlanta, GA 30315
IBT Local 728
Attn: Don Scott
2540 Lakewood Avenue SW
Atlanta, GA 30315
J. Griffin Morgan
Elliott, Pishko, Gelbin & Morgan
500 West Fourth Street
Winston-Salem, NC 27120
