IN RE: LOCAL 728 UNITY SLATE,
Protest Decision 2001 EAD 369
Issued: May 16, 2001
OEA Case No. PT050811AT
(See also Election Appeals Master decision 01 EAM 106)
The Local 728 Unity slate filed a post-election protest pursuant to Article XIII, Section 3(a) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). The protest alleges Local 728 president Don Scott retaliated against Jimmy Payne for his protected election-related activity by terminating him from his position as business agent.
Election Administrator representative Jeffrey Ellison investigated the protest.
Findings of Fact and Analysis
In Richards, 2001 EAD 328 (April 26, 2001), we determined Payne had misappropriated local union property for use in the campaign of the Local 728 Unity slate, on which he ran as a delegate candidate. In addition, we found he had obstructed our investigation by providing false evidence to our investigator. Among other remedies, we ordered Payne disqualified as convention delegate. The Election Appeals Master affirmed the disqualification on May 3, agreeing Payne "obstructed the investigation and gave conspicuously unbelievable and false statements in the course of his interviews by investigators." 01 EAM 63 (May 14, 2001).
On May 4, Scott terminated Payne's employment as business agent for Local 728 for "misappropriation of union resources," citing our and the Election Appeals Master's decisions.
The Unity slate contends Scott's asserted reason for Payne's termination, dishonesty, was a pretext for the real reason, his protected electoral activity. The slate supports its premise by arguing: 1) Scott did not conduct his own investigation of Payne's conduct and therefore has no proof of misconduct; 2) previous instances in which union resources were impermissibly used for campaigning at Local 728 went unpunished; 3) the penalty of discharge was disproportionate to the offense; and 4) the identity of Payne's replacement shows the discharge was improperly motivated.
Article VII, Section 11(g) of the Rules prohibits "[r]etaliation or threat of retaliation … for exercising any right guaranteed by … the Rules." To establish a violation of this provision, the protestor must show that conduct protected by the Rules was a motivating factor in the adverse decision or conduct in dispute. The Election Administrator 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. Higdon, 2001 EAD 325 (April 24, 2001); Hoffa Unity Slate, 2001 EAD 330 (April 27, 2001).
While the Unity slate argues Payne's discharge is related to his delegate candidacy and other electoral activity, it presented no evidence to buttress this claim. Our investigation demonstrates that Scott's discharge decision was motivated by the fact, as substantiated by the decisions of the Election Administrator and the Election Appeals Master, that Payne had misappropriated union assets and failed to tell the truth about it. Scott reasonably relied on our investigative findings in this regard; nothing required him to recreate the investigation in order to justify his decision to discharge Payne.
The Unity slate correctly notes that no disciplinary action followed our decisions in two previous instances where union resources were used in violation of the Rules. Thus, in Richards, 2000 EAD 5 (August 1, 2000), aff'd, 00 EAM 1 (August 14, 2000), the Stroud/Hoffa Re-Election Fund improperly used union resources to establish payroll deduction for campaign contributions from union officers and business agents. Waymon Stroud, at that time president of the local, authored the payroll deduction plan; following our decision, he did not fine, discipline, discharge, or file internal union charges against himself. Similarly, in Richards, 2000 EAD 7 (August 1, 2000), union officers and business agents used union-provided hot dogs and beverages to persuade members to sign accreditation petitions for the Hoffa campaign. Although Stroud had advance knowledge of this improper activity, he neither stopped it nor disciplined those who engaged in it. The essence of the slate's argument, based on these incidents, is that Scott's discharge of Payne is impermissibly retaliatory because Stroud established a binding practice that those who improperly used union resources would be treated benignly. We reject this argument. Stroud's refusal to take disciplinary action against himself or his slate's members does not impair Scott's right in this, a more serious case involving stealth and deception, to mete out the ultimate penalty of discharge for the offenses Payne committed. We note further that Scott previously has discharged employees who stole time from the union and lied about it, cases that are closer in point to Payne's.
Scott hired steward David Gilyard to replace Payne. The Unity slate argues Scott should have recalled Earl Parker from layoff. Scott demurs, stating he needed an agent with substantial UPS experience to fill Payne's responsibilities with that employer. Gilyard fit that requirement; Parker, a former city freight agent with no UPS experience, did not. We decline to read a retaliatory motive for Payne's discharge based on Scott's choice of a replacement.
Accordingly, we DENY the 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 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 369
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
IBT Local 728
2540 Lakewood Avenue SW
Atlanta, GA 30315
IBT Local 728
Attn: Don Scott
2540 Lakewood Avenue SW
Atlanta, GA 30315
Waymon Stroud, Sr.
3766 Occidental Way
Decatur, GA 30034
Jimmy Payne
110 Railroad Street
Rockmart GA 30153
James L. Hicks, Jr.
2777 N. Stemmons Freeway
Suite 1100
Dallas, TX 75207-2284
J. Griffin Morgan
Elliott, Pishko, Gelbin & Morgan
426 Old Salem Road
Winston-Salem, NC 27101
Jeffrey Ellison
65 Cadillac Square, Suite 3727
Detroit, MI 48226