IN RE: BOB HASEGAWA,
Protest Decision 2001 EAD 382
Issued: June 5, 2001
OEA Case No. PR052311WE
Bob Hasegawa, a delegate from Local 174 and a candidate for International office, 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 Jerry Halberg and the IBT retaliated against him for his Rules-protected activity by reinstating an appeal of an internal union charge Halberg had previously made against him.
Election Administrator representative Jeffrey Ellison investigated the protest
Findings of Fact and Analysis
In Fall 1993, Halberg filed charges with the U.S. Department of Labor (DOL) and IBT Joint Council 28 alleging Hasegawa and other executive board members of Local 174 had violated the Labor-Management Reporting and Disclosure Act and the IBT constitution by loaning the sum of $2,261.70 to a staff director and failing properly to report the loan on Form LM-2. The advance exceeded the $2,000 statutory maximum a labor organization may permissibly loan an employee. In December 1993, DOL declined to take action on the charge because the loan had been repaid and an amended LM-2 filed. In the parallel proceeding before the joint council, Hasegawa and the other board members were found in violation of the IBT constitution and ordered to reimburse the local for interest lost on the loan and to mail copies of the joint council decision to the local's membership. Hasegawa appealed the joint council decision to the IBT's General Executive Board (GEB), which vacated the lower body's decision on July 12, 1994. Halberg timely appealed the GEB decision to the 1996 IBT convention. However, the convention took no action on Halberg's appeal or those of some 20 other properly docketed cases.
On March 16, 2001, IBT General Secretary-Treasurer C. Thomas Keegel wrote Halberg and the other 20 appellants advising that their appeals were still pending and inquiring whether they wished to pursue the cases at the 2001 convention. Keegel's letter directed that "[y]our response as to whether you will proceed with or withdraw your appeal … should be addressed to this office and received on or before Friday, March 30, 2001." (Emphasis in original.)
Halberg responded on March 23 advising, "I do not wish to proceed with the appeal referenced in your letter."
On April 2, Keegel wrote Hasegawa and the other executive board members, with copy to Halberg, advising that Halberg had withdrawn the appeal. The letter concluded: "Accordingly, the July 12, 1994 decision of the General Executive Board is considered final."
On May 3 and again on May 7, Halberg telephoned the IBT legal department seeking to reinstate the appeal. These calls produced another letter from Keegel on May 16, advising Hasegawa and the others to "disregard my earlier letter to you dated April 2, 2001. Brother Jerry Halberg has advised this office that he intends to proceed with his appeal to the International Convention. As such, the appeal will be presented to Convention delegates for consideration …"
Hasegawa brought this protest, arguing the reinstated appeal "is harassment and retaliation against me because of my political support for … Tom Leedham and my candidacy on Leedham's Rank & File Power Slate. It is also a political attempt to publicly discredit my candidacy."
Halberg told our investigator he withdrew his convention appeal in March because the case was very old and the circumstances giving rise to it were "water under the bridge." However, after the appeal was withdrawn and the GEB decision declared final, Halberg learned of political activity of Hasegawa that prompted him to change his mind and pursue the appeal. The circumstances follow.
Hasegawa narrowly lost a re-election bid as principal officer of Local 174 to Scott Sullivan. Sullivan assumed office January 1, 2001. Thereafter, the local fell two months in arrears in its per capita assessments to the King County Labor Council, the AFL-CIO affiliate in greater Seattle. On March 7, the council voted to suspend the local's affiliation because of the per capita arrearage; several other local unions were suspended the same day. On March 16, Local 174 requested special consideration for reinstatement, notwithstanding the arrearage. The council granted the requested dispensation on March 21. Hasegawa was on council premises on March 21 leafleting and urging that the local's request be rejected. Hasegawa's leaflets blamed Sullivan for the local's suspension from the council. Hasegawa did not confine his activity to the council, however. Instead, he and his supporters broadened the leafleting to worksites under the local's jurisdiction and combined it with an appeal for support in the delegate election.
Halberg is on staff with the IBT and travels extensively for his work. He learned of Hasegawa's leafleting activity on the labor council issue some time after it occurred and after he withdrew his appeal of the GEB decision. Halberg told our investigator he was angry that Hasegawa had made the local's suspension from the labor council an issue in the delegate campaign. After speaking with friends and associates, Halberg decided to request reinstatement of his appeal.
Halberg insists the decision to seek reinstatement of the appeal was his alone. In particular, he denies he was solicited by any person associated with the Hoffa campaign to pursue the appeal. Through counsel, the IBT states its "understand[ing] that Halberg had no contact with General Secretary-Treasurer Keegel or General President Hoffa concerning the appeal."
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 the actor 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).
We GRANT the protest. Halberg's stated motivation for reinstating his convention appeal was Hasegawa's leafleting activity surrounding Local 174's suspension from the King County Labor Council. Such activity occurred in the context of the delegate election and was coupled with an appeal for support in that election. Accordingly, Hasegawa's activity was protected under the Rules, and Halberg was barred by Article VII, Section 11(g) from retaliating against him for exercise of those political rights. Halberg's improper animus is substantiated both by the affirmative statements of motivation he made to our investigator as well as his failure to cite any proper motivation for his action.
In light of our finding with respect to Halberg and the remedy we order below, we deem it unnecessary to investigate and make a finding on Hasegawa's contention that the IBT participated in the retaliation by reinstating the appeal without explanation, an action it took after setting a deadline for Halberg to decide whether to pursue or withdraw the appeal, receiving Halberg's withdrawal, and then declaring the GEB decision final.
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 a restoration of the status quo that existed per the terms of General Secretary-Treasurer Keegel's April 2 letter, which advised that Halberg had withdrawn his appeal and declared "the July 12, 1994 decision of the General Executive Board is considered final."
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 382
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
Jerry Halberg
7903 S. 124th Street
Seattle, WA 98178
IBT Local 174
553 John Street
Seattle, WA 98109
C. Thomas Keegel
IBT General Secretary-Treasurer
25 Louisiana Avenue NW
Washington, DC 20001
James P. Hoffa
IBT General President
25 Louisiana Avenue NW
Washington, DC 20001
Teamsters for Democratic Union
7437 Michigan Avenue
Detroit, MI 48210
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
Jeffrey Ellison
65 Cadillac Square, Suite 3727
Detroit, MI 48226