Protest Decisions

IN RE: AMADEO BIANCHI,
Protest Decision 2002 EAD 554
Issued: February 20, 2002
OEA Case No. PT111411AT

(See also Election Appeals Master decision 01 EAM 107)

Amadeo Bianchi filed a post-election protest pursuant to Article XIII, Section 3(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") alleging that he was retaliated against for activity protected by the Rules when his discharge grievance was denied by the Southern Area Freight Grievance Committee.

Bianchi, a prominent Leedham supporter in his local union, was discharged by his employer for alleged misconduct. His grievance was denied by the joint committee while that of a similarly situated discharged member who was not politically active was granted. The protest attributes the denial of the grievance to duplicity involving one or more of the union designees on the joint committee, both of whom were Hoffa slate supporters.

Election Administrator representative Jeffrey Ellison investigated the protest.

Findings of Fact and Analysis

Bianchi's discharge. Bianchi worked for Roadway Express, Miami terminal, with a seniority date of January 3, 1978. He became union steward in 1984; he became chief steward the next year, a position he held through his discharge on October 30, 2001. Roadway fired him for an "act of dishonesty, being involved in and promoting fraud by reporting a personal illness or injury as an on-the-job injury."

Bianchi had not filed an injury report. Rather, he told Gerome Daniels, a Roadway employee at the Miami terminal, that if he had suffered an on-the-job injury he should report it to Roadway as such. Daniels did so; he too was fired for dishonesty.

Daniels' injury. Daniels, a 34-year-old with less than two years' full-time service, reported for work on the midnight shift October 12, 2001, "in great condition." Less than an hour into his shift, Daniels "developed a very painful sensation in [his] chest area" that he "thought … was heartburn." He reported the symptoms to Craig Henschel, a supervisor, and Henschel gave him antacids from the terminal's medicine cabinet. The antacids gave Daniels no relief, and he left work about an hour and twenty minutes into his shift to go home and rest.

After several hours at home, Daniels still experienced sharp pains in his chest. Concerned, he went to the local fire station and had them run an EKG. The paramedics concluded the test was normal. However, they instructed Daniels to consult with his physician or go to the hospital if his symptoms continued.

With the severe pain still present, Daniels went to the emergency department of North Shore Medical Center, a local hospital, the next day, October 13. Records show intake was done at 7:32 a.m. Daniels complained of heartburn, and the intake worker answered the question "Accident Work Related" on the intake form with "No."

An emergency department physician examined Daniels and ordered several tests, including a blood workup, another EKG, and chest x-rays. At 2:38 p.m. on October 13, an admission form shows that Daniels was admitted to the hospital with a diagnosis of "R[ule] O[ut] myocardial infarction." That day and the next, additional tests were conducted. The final diagnosis was that Daniels had not suffered heartburn or a heart attack but had pulled a muscle in the area of his heart.

While still in the hospital on October 14, Daniels telephoned Roadway to advise that he was unavailable for work. Daniels states he told the company's Henschel he had been diagnosed with "a badly pulled muscle over my heart" and that it happened at work. The company states merely that Daniels told them of his unavailability but did not relay the diagnosis.[1]

Daniels was discharged home on October 14 with a "no work" restriction and instructions to follow up with his primary care physician. On October 18, he contacted Don Marr, Local 390 secretary-treasurer and the business agent responsible for servicing Roadway, about obtaining compensation for his disability. According to Daniels, he told Marr that he had gone off work complaining of heartburn, that his condition had subsequently been diagnosed as a pulled chest muscle, and that the pull occurred at work.[2] According to Daniels, Marr replied that Roadway's terminal manager, Chris Clark, would not be happy with a claim of work-related injury and that it was too late to file an injury report in any event. Marr instructed Daniels to come into the hall and complete an application for sick leave benefits from Central States Health & Welfare Fund. Daniels made plans to do so the next day, October 19.

However, on the evening of October 18, Daniels spoke by telephone with Roadway employee Shawn Becker about a potential grievance concerning work conditions. On the October 12 shift when Daniels was injured, Daniels and Becker were unloading a trailer together until a supervisor directed Daniels to complete the job alone. Becker called Daniels to discuss filing a grievance over the supervisor's order. During that call, Daniels told Becker he "had injured the muscle over his heart" unloading the trailer. Becker states Daniels was certain his injury occurred while doing that task. According to Becker, he told Daniels -

that if one gets injured on the job that they need to inform their shop steward, which is Amadeo Bianchi, and I told him to inform the hall. So, I called Amadeo on three-way. This is when Amadeo found out that Gerome injured the muscle over his heart. Amadeo stated, "if you are injured on the job, then you must fill out on the job injury forms."[3]

Bianchi said it was not too late to file an injury report and cautioned Daniels that he could get into trouble with Central States by filing a claim for sickness benefits when the injury was work-related.[4] 

The next day, October 19, Daniels went to the local hall to see Marr. Marr was not present, so Daniels called him on his cell phone. Daniels told Marr of his conversation the previous evening with Bianchi. He stated he now knew it was not too late to file an injury report and thought because the injury was work-related he should do that rather than file a Central States claim. Marr told Daniels to call the company and ask that an injury report form be faxed to the hall. He did so, asking assistant terminal manager Mike Wilson to fax the form over. Wilson put the call on speakerphone so safety manager Bud Rowland could listen in. He then refused the request, telling Daniels that such reports had to be completed with the assistance of supervision.[5]Wilson instructed Daniels to come to the terminal to complete the form, if that is what he wished to do.

Wilson and Rowland then called terminal manager Clark, according to Clark, "to let [him] know that a week after leaving work with heartburn, Gerome was claiming a pulled chest muscle." Clark stated:

I called Don Marr (390 Business Agent) because Gerome had said he was told by the union to change this from lost time medical to a worker's comp claim. I questioned this advice to Don Marr. Don told me that he advised Gerome of his right to complete lost time form through his personal medical insurance on Thursday, 10/18/01. I asked Don who had told Gerome to change to a worker's comp claim and Don said, "A. Bianchi (721 Union Steward) called Gerome on Thursday evening and told him to file a worker's comp claim."

Without immediate notice to Daniels[6], Rowland that day prepared a three day disciplinary suspension of Daniels for "[c]ommitting an unsafe act. On 10/19/01 you notified the Company that you pulled a muscle in your chest while working on 10/12/01."[7]

On Saturday, October 20, Daniels went to the terminal. He asked terminal manager Chris Clark for an injury report form. According to Daniels, Clark replied that he did not know where the forms were and that he could not look for them because he had to leave. Clark reported that he was busy locking up for the day and told Daniels to return on Monday when Rowland could assist him with his request.

On Sunday, October 21, Daniels telephoned Bianchi at home to tell him the company had refused to fax the injury report form to the hall and could not locate the form when Daniels went to the terminal requesting it. Bianchi instructed Daniels to meet him at the terminal the next morning at 5:45 a.m.[8]and Bianchi would insure that Daniels was given the proper form.

The next day, Bianchi and Daniels met as arranged, Bianchi asked Lauren Findley for an injury report form, Findley produced the packet of injury materials, and Bianchi handed them to Daniels. Daniels then completed the form in the presence of Bianchi and Kai Wong, but without their assistance. While completing the form, Daniels asked two questions: "What is today's date?" Bianchi replied, "October 22, 2001." Daniels next asked, "What date should I put for the injury date?" Bianchi replied, "You have to put the date the injury actually happened."

Daniels completed the form and placed it in an envelope. He gave it to Bianchi, and Bianchi gave it to the company's Craig Michael without examining it.

Review of the form shows Daniels made two mistakes in completing it. First, he listed "10-12-01" as his date of birth.[9] Second, he listed the date the report was completed as "10-12-01" instead of October 22, 2001.

On October 23 and at Rowland's request, Daniels signed an authorization permitting Roadway to obtain his medical records from North Shore.

On October 30, Daniels was discharged for his "act of dishonesty with fraud in reporting a personal illness or injury as an on-the-job injury and completing injury documents on 10/22/01."[10] Bianchi was fired the same day for the cause previously quoted.

In a statement prepared November 1, the day after he received the discharge notice, Daniels wrote the following:

I have not been dishonest about anything[. I]t would have been fraud and dishonesty if I would have committed lost time with Central State[s] because this was an on-the-job injury. Roadway's managers are trying to intimidate me to fill out those lost time forms by discharging me. This injury was the most painful thing I've ever experienced in my entire life. Cr[ai]g [Henschel], Tommy and several of Roadway office staff seen the agony I suffered before going home. Many of the teamsters were aware of the way I felt and asked me are you ok. It was clear that this injury happened at work but I just didn't know my diagnosis.

Daniels and Bianchi promptly grieved, and their grievances were heard at local meetings on November 2, 2001 and were denied by the company. They were appealed to the next step of the contractual dispute resolution procedure, which was the multi-state joint committee, scheduled to convene in Deerfield Beach, Florida on November 13 through 16, 2001.

Each panel at the multi-state level is comprised of two management and two union designees. The multi-state joint committee meets monthly and hears grievance appeals from across the IBT's Southern region. In discharge cases, the panel hears the company's evidence and then the union's evidence; it concludes the hearing with questions from the panel. Evidence is presented primarily by advocates of the parties reading witness statements into the record; less frequently, live witnesses are presented, but without cross-examination by the opposing side. Any panel member may ask questions of advocates or live witnesses. Following the oral hearing, the panel conducts an executive session to deliberate on the case. If the panel can decide the case, it does so and the decision is announced orally at the conclusion of the executive session. If the panel cannot decide the case, it announces its deadlock, and the case may be appealed to the next step of the contractual dispute resolution procedure, the area joint committee. The area committee is comprised of equal numbers of management and union designees and follows the same procedures as those of the multi-state joint committee. If the area committee deadlocks, the grievance may be appealed to tri-partite arbitration where a neutral arbitrator sits with a union and a management designee. By contract, decisions reached at either of the joint committee steps or at arbitration are final and binding on the parties.

Daniels' grievance was presented to the joint panel on Tuesday, November 13. Roadway argued that Daniels committed fraud by filing an injury report claiming that a personal injury was work-related. The company relied principally on four facts to support its claim that Daniels knew the injury report he submitted was false. First, Daniels left work on October 12 complaining of heartburn, which the company argued could not have resulted from work. Second, Daniels reported the same self-diagnosis upon admission to the hospital, and the admission form showed the injury was not work-related. Third, Daniels used his wife's health insurance upon admission to the hospital, an act the company argued was inconsistent with a claim of work causation. Finally, Daniels did not seek out the hospital intake worker to change the answer to the question about work-relationship after receiving the diagnosis of pulled chest muscle. Although in discharging Daniels the company made much of the fact that he dated his injury report "10-12-01" when he filed it, the company did not rely on this fact when presenting the case to the joint panel.

Marr presented Daniels' case to the panel. He argued that the panel could not make a medical determination concerning whether Daniels was injured at work. Instead, it could only assess whether Daniels had filed the injury report knowing it was false. On this score, Marr contended that although Daniels self-diagnosed his condition as heartburn, he was entitled to rely on the judgment of the physician who examined him at the hospital and diagnosed the condition as a pulled chest muscle. Accordingly, Marr argued Daniels' injury report was made in good faith reliance on medical opinion. Responding to the company's arguments about the claim of heartburn, the hospital admission form stating the condition was not work-related, and Daniels' use of his wife's health insurance, Marr argued that all of those statements and decisions were made while Daniels believed he had heartburn, before a physician diagnosed him otherwise. Marr argued Daniels had no duty to correct medical records or change the insurance information on the admission form. Medical records submitted to the panel showed the diagnostic assessment as "L[eft] chest pain - muscular pain" and "muscular pain to L[eft] chest."

Marr also maintained that Daniels did not know, even as late as the date the grievance was presented to the joint panel, whether he had sustained his injury at work or at home. Marr argued the panel should excuse Daniels' act of filing the injury report, contending several times that Daniels simply relied on the advice of his steward, Bianchi. This argument contradicted several written statements of Daniels and others; it also contradicted Daniels' testimony to the joint committee. Thus, Daniels told Roadway's Henschel October 14 from the hospital that he was diagnosed with a pulled chest muscle and that the pull happened at work. In addition, he told Marr October 18, as we previously found, that his injury was work-related. Further, Becker stated that when he spoke with Daniels the evening of October 18 (before Daniels spoke with Bianchi), Daniels was certain his injury occurred at work. Bianchi stated in writing and to the committee that Daniels told him October 18 the injury happened at work. Daniels told the company October 19 and again October 20 the injury happened at work. His injury report of October 22 stated that, while "lifting boxes, I develop[ed] a very painful sensation in my chest." In response to the three-day suspension the company issued him for performing the "unsafe act" that caused the injury, Daniels wrote:

The letter indicates that I [first] notified the Company [the injury was work-related] 10-19-01 which is untrue. I notified the Company on 10-14-01 while in the hospital. I spoke with Cr[ai]g Hen[s]chel because the injury happened 10-12-01, during this shift. I made him aware of the diagnosis which was a severely pulled muscle over my heart. I spent 2 days in the hospital 10-13 & 14-01. This was not an unsafe act[;] it could have happened to anyone. I request that this letter be removed from my file."

Finally, during his joint panel hearing, Daniels testified as follows:

When I got to work that day I felt great. … Once they found out my diagnosis, which was a pulled muscle over my heart, that was a good indication that everything happened to me occurred at work because I didn't do anything else, nowhere else. So that's what made me feel like everything happened at work. Now, I informed the company on the 14^th that I had a pulled muscle. You know, there are articles in here showing that I didn't call them until the 19^th, which is untrue, I let them know that I had a pulled muscle on the 14^th during the time that I was in the hospital.

Accordingly, Marr's argument to the panel that Daniels was unsure how and where he injured himself was contrary to the facts. It obscured the incorrect advice Marr gave Daniels to file a Central States claim for a work-related injury, and it conveyed the wrong impression that Bianchi had pushed Daniels to file an injury report Daniels knew was false.

As remedy for the grievance, Marr argued that back pay was not owing because Daniels had been disabled for work continuously since he left the terminal on October 12; he remained disabled at the time of the joint panel hearing; and he would remain so until his primary care physician released him for work which, at the earliest, might be late November. Any compensation Daniels was due, therefore, would either be workers' compensation benefits or Central States sick leave benefits, depending on the ultimate resolution of his injury claim. Accordingly, the remedy Marr sought was reinstatement to employment upon a medical release.

After hearing evidence and argument, the panel deliberated in executive session and decided to grant the grievance. The secretary announced the result: "Decision in case number 184, based on the facts presented, return to work upon a full medical release."

Bianchi's case was presented to the same joint panel the next day. Roadway made the same arguments and Marr offered the same defenses they had presented in Daniels' case. For remedy, Marr requested reinstatement, lost wages, overtime and benefits.

The panel deliberated and denied the grievance, thus sustaining Roadway's discharge of Bianchi.

Bianchi filed this protest the same day as the panel's decision, alleging that "the Southern Area Freight Grievance Committee upheld the company's discharge case, with no evidence that I had committed a dishonest act. This committee was controlled by Hoffa Slate candidate Tyson Johnson. The motivation for upholding the discharge was to punish me for my outspoken support of Tom Leedham, and my filing of protests to enforce my rights under the rules."

Bianchi's electoral activity. Investigation shows that Bianchi was a vocal and prominent supporter of the Leedham slate in Local 390. Bianchi ran unsuccessfully for delegate to the 2001 IBT convention. He frequently campaigned for Leedham in employer parking lots and premises across the local's jurisdiction.

In addition, Bianchi had sought local union office, running for president four times over a decade. The last two times, his slate lost to the slate of current local union officers, President Gerry Pape and Secretary-Treasurer Marr. Further, his slate lost the 2001 delegate election to Pape and Marr.

Bianchi was the subject of a single election protest (OEA Case No. PR101214AT) that resulted in three decisions. In Hoffa Unity Slate, 2001 EAD 516 (October 22, 2001), we found Bianchi had violated the Rules by campaigning in a drivers' break room at the Miami terminal of Consolidated Freightways where, we found, he had no pre-existing right to campaign. In 2001 EAD 528 (October 28, 2001), we withdrew the decision for reinvestigation, based on evidence we had not previously known. We concluded the reinvestigation and issued 2001 EAD 539 (November 2, 2001), denying the protest. The protest relied on evidence supplied by Marr; he was the principal accuser of Bianchi, and he asserted that campaigning inside employer premises was prohibited at CF Miami and uniformly at worksites across the local. Contrary to Marr's assertions, our reinvestigation showed that "a pre-existing right, firmly established and of long standing, exists to campaign" in the drivers' break room at CF Miami. Further, despite his declaration that such conduct was prohibited, we found that Marr too had "engaged in such activity himself without challenge or objection. Given [Marr's] own conduct in this regard, we find it unfortunate that he has misrepresented the practice permitting campaigning and thereby misled the protestor into pursuing this protest." 2001 EAD 539.

The initial investigation of that protest occurred the same week Marr told Daniels to file a Central States claim and told Roadway's Clark that Bianchi had advised just the opposite. The reinvestigation of the protest, including repeated questioning of Marr, occurred in the same week that Bianchi was fired and his grievance was denied at the local meeting step of the grievance procedure.

Investigation of retaliatory animus. We questioned Marr concerning whether he sought, arranged, suggested or acquiesced in Bianchi's discharge. He denied doing so. He further denied seeking, arranging, suggesting or acquiescing in the joint panel's decision to deny Bianchi's grievance.

However, John Chase, a CF employee, reports that on November 2, the day Bianchi's grievance was discussed at the local level of the grievance procedure, Marr spoke by telephone with Chase's terminal manager, Tom Gurr, to cancel a scheduled meeting at that facility, stating that he had to "go over to Roadway in Miami to go through the motions of getting that motherf-cker Bianchi his job back." Chase was present when Gurr had the telephone conversation; when Gurr hung up, he repeated to Chase the words Marr had used. Marr denies making this statement and contends that he attended a meeting with Gurr that day. Gurr recalls a telephone call on an unspecified date during which Marr said he had to attend a meeting regarding Bianchi's discharge; Gurr states, however, that Marr did not use the language Chase claims Gurr reported to him.

Tyson Johnson states that he was in Washington, D.C., the week the joint committee met on the Daniels and Bianchi grievances. He states his first knowledge that Bianchi had been discharged came when he received the protest in this case.

Ken Bryant and Dale Healea were the union designees on the joint panel that decided the Daniels and Bianchi grievances. We took their depositions.[11]

Bryant is a member and assistant business agent of Local 745, Dallas, the local of which Southern Region Vice President Tyson Johnson is principal officer. Bryant also is co-chair of the Southern Region multi-state joint committee. He was appointed to this post in 1998 by General President Hoffa on the recommendation of Johnson. Bryant campaigned for and contributed financially to the Hoffa and Johnson campaigns.

Healea is a member and business agent of Local 878, Little Rock. He has served on joint panels for the past three years and is most often paired with Bryant as the union half of the committee. Healea contributed financially to the Hoffa and Johnson campaigns as well.

Both asserted that the Daniels and Bianchi grievances were decided on their respective merits. Each denied that he voted to reject Bianchi's grievance because of any political or retaliatory consideration; each also denied that Marr or any other person at any time or in any way suggested that Bianchi's grievance be rejected.

At his deposition, Healea demonstrated that he recalled most of the particulars of the Daniels and Bianchi hearings. He recalled the symptoms Daniels complained of; his self-diagnosis of heartburn; the treatment, including hospitalization, he sought for the symptoms; the diagnosis the physician rendered; his conclusion that he pulled the chest muscle at work; his decision, after consulting with Bianchi, to file an injury report; and the effort he made to obtain the proper form before finally securing and filing it. On these facts, Healea stated that the panel decided to reinstate Daniels upon obtaining a full medical release. Healea stated the panel did not impose any disciplinary penalty against Daniels.

Healea agreed the panel was not enjoined to determine whether Daniels had heartburn or a pulled muscle but rather whether he knowingly filed a false injury report. He stated that the panel reinstated Daniels "because his intentions weren't to defraud the company and file a false claim."

Bryant, the other union designee to the panel, testified Daniels was reinstated because Bryant "kept badgering" the management panel members until one of them agreed to reinstate.[12]

Turning to Bianchi's discharge, Healea agreed that Roadway fired Bianchi for assisting Daniels in filing the injury report. Given the panel's determination that Daniels did not engage in dishonesty in filing that report, Healea explained the decision to discharge Bianchi for dishonesty as follows:

[W]hat we determined was the fact that ... he [Daniels] seeked the guidance from his steward and … I thought that maybe he [Bianchi] was encouraging him to file something that wasn't necessarily ... there was no proof; there was no witnesses that Mr. Daniels was injured at work. At the time, he wasn't aware that he had done anything [to injure himself].

Bryant asserted he and Healea initially voted to reinstate Bianchi. However, "because the company felt strongly," Bryant "agreed with the company that we would discharge him." Of Healea, Bryant stated, "I think him and I talked about it together and we both agreed that we would have to cave on this one." Bryant explained the outcome as follows: if the case deadlocked and was appealed further in the grievance procedure, the company would "basically present the same set of circumstances; the same documents; same evidence. And if we can't win it at the multi-state level, then how would we be able to win it at the deadlock level, which is the area? In every case that I look at, I look at it like, if I'm the wing man with the arbitrator and the arbitrator sits in there and he's got a company wing man and a union wing man, if I'm the wing man, how am I going to convince this arbitrator that this man is not guilty of dishonesty, and I didn't feel that I could do that."

When asked to articulate why the panel reinstated Daniels and discharged Bianchi, Bryant stated Daniels was a relatively new employee who filed the injury report "under Bianchi's direction after he received the phone call from Bianchi."

Don Marr, in denying he manipulated the process to secure Bianchi's discharge, declared he had no reason to do so. He stated the international officer election was over at the time of the panel's decision and the Hoffa slate had won. There was no need, therefore, to "settle scores" because the only score that mattered had been settled by the voters. Second, Marr did not view Bianchi as a political threat. Each election Bianchi entered he lost overwhelmingly, so Marr had no need to eliminate Bianchi politically. Finally, Marr asserts he could have benefited politically by gaining Bianchi's reinstatement because he would have gained credit for fair dealing and skilled advocacy with the members loyal to Bianchi. "If I had gotten him back, I would have been a hero" to that constituency.

Marr agreed that the panel's decision to reinstate Daniels indicated he had not been dishonest. Marr asserted that the panel's decision to deny Bianchi's grievance was explained by Daniels' testimony during Bianchi's hearing that his injury was work-related. According to Marr, Daniels did not make such statements during his own hearing because he did not know whether his injury was work-related. This testimony, according to Marr, caused the panel to conclude that Bianchi had put Daniels up to making an injury claim when Daniels was unsure whether his injury was work-related.

As noted above, the record does not support Marr's assertions. In addition to the previously quoted statements by Daniels that he knew his injury was work-related as soon as he got the diagnosis, Marr himself read into the record of Daniels' hearing the following:

I was admitted to the hospital for two days, October 12, 2001, and October 14, 2001. On October 14, 2001 while I was still in the hospital, I called Roadway and informed Cr[ai]g Hen[s]chel that the problem was not heartburn, it was a pulled muscle, and I hurt myself at work.[13]

The Rules, at Article VII, Section 11(g), prohibit "[r]etaliation 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." 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 protestor 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 union officer or entity would have taken the same action even 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); Ruscigno, 2001 EAD 105 (January 26, 2001); cf., Wright Line, 251 NLRB 1083 (1980), enf'd, 662 F.2d 899 (1^st Cir. 1981), cert. denied, 455 U.S. 989 (1982).

In particular, proof must show the member engaged in Rules-protected activity, that he suffered adverse employment action, and that the two are connected. The retaliatory nexus may be established by direct or indirect evidence or inference.

We find the evidence establishes both direct and inferential connection between the joint panel's decision to sustain Bianchi's discharge and his electoral activity. In reaching this conclusion, we find that Bianchi's discharge was not for just cause and that the joint panel lacked a legitimate basis for holding otherwise.

Roadway's decision to discharge Bianchi can only be understood as derivative to its decision to discharge Daniels. Accordingly, our discussion begins with Daniels' case.

The undisputed facts show that Daniels experienced a sudden onset of pain in his chest after starting work on October 12. He believed he was experiencing heartburn, a self-diagnosis he held to until a North Shore emergency doctor told him otherwise two days later. Until the physician rendered that diagnosis, Daniels behaved consistent with a person experiencing the gastric upset of heartburn: he took antacids and rested. Even when the symptoms pushed him to go to the hospital on October 13, he still reported to the intake worker his belief he was suffering heartburn, perhaps reassured by the negative EKG the fire department paramedics had done October 12. He also used his wife's medical insurance, believing that his work did not cause the heartburn.

The undisputed facts also show that the emergency department physician ruled out heart attack and heartburn, diagnosing the condition as a pulled chest muscle in the area of Daniels' heart.

We credit Daniels' statement that, when he called his employer from the hospital on October 14 to state he was unavailable for work, he also reported that the physician ruled out heartburn and diagnosed a pulled chest muscle which Daniels attributed to work. We find it implausible that Daniels would have withheld information from his employer about his diagnosis, especially where he believed it was work-related and where the symptoms he experienced when he left work had convinced him of a substantially different cause.

We also find as facts that Daniels told Marr on October 18 his injury was work-related; that Marr wrongly told Daniels to file a Central States claim; that Bianchi, after hearing Daniels' assertion that the injury was work-related, told Daniels in that case he had to file an injury report rather than a sickness claim with Central States; that Marr then told Roadway that Daniels was claiming his injury was work-related because Bianchi told him to do so; and that Marr defended Daniels' discharge before the joint committee by arguing that Daniels merely did what his steward had directed.

The reason Marr directed Daniels to file the Central States claim on October 18 is beyond the scope of this decision. He may have doubted that Roadway would recognize an injury claim made six days after the incident, or he may have sought to protect Roadway from a disability claim that likely would have been of short duration in any event. However, we find Marr knew Daniels claimed to him on October 18 the injury was work-related, a claim Daniels first asserted October 14 to his employer and never wavered from. By stressing to the joint panel that Daniels was unsure of the source of his injury, Marr justified his own advice to Daniels that he should file a Central States claim. He also shifted the responsibility for the claim of work-related injury from Daniels to Bianchi with the argument that Daniels merely did as he was told by his steward. Notably, both Bryant and Healea claimed this argument was the reason they voted to discharge Bianchi.

In the first instance, Marr should not have advised Daniels to file a Central States claim. But especially when Marr saw his steward, Bianchi, ensnared by Marr's improper advice, Marr should have reverted to the truth that Daniels had asserted his injury was work-related from the moment of physician diagnosis, that the medical evidence supported that assertion convincingly, that Bianchi had given correct advice to file the injury report, and that Marr himself had been wrong to advise the Central States course. However, when Marr adhered to his position, he effectively caused Bianchi to be portrayed as an overreaching steward attempting to gain a member a benefit Bianchi knew the member did not merit.

Marr's actions in these discharge cases coincided with statements he made to our investigators in Case No. PR101201AT that campaign activity was not permitted in a drivers' break room, statements he knew were false because he had campaigned there himself. Marr made these statements in an effort, initially successful, to convict Bianchi of a violation of the Rules. Close reinvestigation of Marr's statements came the week Bianchi was fired. Notice of our decision exonerating Bianchi of the Rules violation and finding Marr had misled us about the facts came immediately after the local level meeting on the grievances and a week before the joint panel hearings.

In sum, Marr played a critical role in the contemporaneous protest investigation and discharge cases by presenting evidence and argument that had the purpose or effect of disparaging Bianchi before those tribunals. Those actions compel us to conclude he was motivated by retaliatory animus against Bianchi, a conclusion further supported by his statement to CF's Gurr that he was going to "go through the motions" to get "that motherf-cker Bianchi his job back."[14]  He breached his duty to represent Bianchi fairly by presenting evidence and argument he knew were false and knew or should have known would cause the panel to view Bianchi's conduct unfavorably.

The only other plausible explanation for the result in Bianchi's case is collusion between Marr and one or both union designees to the panel, a conclusion substantiated by the irrationality of the panel's decision. Roadway fired Bianchi for dishonesty, yet no evidence was presented that Bianchi did or said anything that was dishonest. The panel members nonetheless attempted to justify their decision to deny Bianchi's grievance by asserting a lack of proof that Daniels sustained a work-related injury. Yet the record evidence - most notably Daniels' steadfast assertion that he hurt himself at work as corroborated by unrebutted physician diagnosis - exposes this justification as spurious.

At bottom, Bianchi was fired for telling Daniels to report a work-related injury as such. Bianchi, the union's man-on-the-ground at Roadway, was simply doing his job of representing the union's member there. Under these circumstances, it is inexplicable that the union panel members would feel the need, in Bryant's words, "to cave on this one." They were most unbelievable when they testified at deposition that they could not come up with a single convincing argument for reinstating Bianchi, for they had to be blind to all of the following:

That Bianchi's advice to Daniels was proper because when Daniels said he got hurt at work the only appropriate course was to file an injury report;

That Bianchi could not be convicted of dishonesty because the panel the previous day found Daniels, the one who stood to benefit from the injury report, not dishonest, and Bianchi's case arose from Daniels';

That Bianchi did not witness Daniels' injury and could rely only on Daniels' statement as to how it happened, so if the source of the injury was in doubt (and in reinstating Daniels the panel found it was not), that doubt weighed against Daniels and not Bianchi;

That Bianchi was engaged in concerted activity protected by Section 7 of the Labor-Management Relations Act when giving that advice;

That Bianchi's discharge was an overreaction by Roadway, which could protect itself against what it viewed as a suspicious claim simply by denying it, thereby making Daniels pursue the benefits through the Florida workers' compensation agency if he really wanted them;

That Bianchi's discharge was predicated on Roadway's uncompromising effort to quell claims of work-related injuries, as demonstrated first by its suspension of Daniels for performing the act that caused his injury and then by discharging him for claiming the injury was work-related at all;

That Bianchi had a good record over 24 years' employment (17 as steward or chief steward) and, absent grave misconduct not established here, there is no precedent for upholding discharges of good employees with such seniority.

Yet despite the union panel members' protests that they have "union blood" coursing their veins, they sustained Bianchi's discharge simply for doing his job as steward. This decision can only be explained as motivated by a willingness to punish Bianchi for some other perceived offense. We find that Bianchi's "offense" - his protected political activity - is the only rational explanation for the joint panel's decision denying his grievance.

We do not, as the IBT argues, simply substitute our judgment for that of the joint panel. Rather, we have examined two nearly identical cases, one where the grievant was reinstated, the other where he was not. We have found that the only significant difference in conduct between the two is that the employee whose grievance was denied engaged in considerable protected activity in behalf of candidates opposed by the local's leadership. Neither the company, the union, nor the panel has articulated a legitimate, non-discriminatory reason for Bianchi's discharge, and we find that the prima facie case of retaliation Bianchi states has not been rebutted. Contrary to the IBT's view, the decision of the joint panel is not simply imponderable, it is irrational, except as explained by retaliatory animus which we have found and will not allow to stand.

Accordingly, we 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.

This is a post-election protest. Under Article XIII, Section 3(b), a post-election protest alleging "retaliation for exercising any right protected by these Rules shall be considered and remedied without regard to whether the alleged violation affected the outcome of an election." United States v. IBT, 896 F.Supp. 1349, 1360-61 (S.D.N.Y. 1995).

The Rules give us the authority to "requir[e] reinstatement of an employee or rescission of other disciplinary penalties." Article XIII, Section 4(x).

We find that, but for the retaliation committed against Bianchi, he would have been reinstated to his employment and made whole for economic loss he suffered by his unjust discharge. We order that relief. Specifically, we direct Roadway to reinstate Bianchi forthwith to the position and shift he held on October 30, 2001, the date of discharge. We also direct that Bianchi's seniority show no break or interruption attributable to the October 30 discharge and that the discharge letter be removed from his file.

We further order that Bianchi be paid the wages he would have earned but for the discharge, including any overtime for which he would have been eligible. Bianchi received unemployment compensation following his discharge. If because of the back pay we order he is obliged to repay the unemployment compensation to the agency paying it, no offset shall be taken against the back pay award for unemployment compensation received. If no repayment of unemployment compensation is required, we will permit offset.

We further order that the benefits Bianchi would have enjoyed but for the discharge be paid. If Bianchi incurred COBRA expense following his discharge, that expense shall be reimbursed to him.

We apportion the payment of compensation as follows. We direct Roadway to pay wages, overtime and benefits from date of discharge through and including the date of the joint panel's November 14 decision. We direct Local 390, of which Marr was agent, to pay Bianchi the wages, overtime and benefits from and after the date of the joint panel's decision up to the date Bianchi is reinstated. We make this apportionment based on Bowen v. United States Postal Service, 459 U.S. 212 (1983), and its progeny, finding that the discriminatory animus the union displayed at the joint panel hearing shifted responsibility for damages to the union as of that date. See San Francisco Pressmen, Local 4 v. NLRB, 794 F.2d 420 (9^th Cir. 1986).

We recognize that, but for the retaliatory conduct we find here, the joint panel may have deadlocked, requiring that the case be appealed to the area committee and, if deadlock there, to arbitration. If Bianchi's grievance were sustained at any of those later steps of the grievance procedure and back pay awarded, Roadway alone would have been responsible for the remedy. It is also possible, however, that had the retaliatory conduct against Bianchi not occurred, his grievance may have been sustained at the November 14 hearing. Because of the union's retaliation against Bianchi, we decline to penalize Roadway anything more than the reinstatement and lost compensation for which it would have been responsible had the panel in Bianchi's case reached the same conclusion of no misconduct that it reached in Daniels' case a day earlier.

We reject Roadway's argument that it is not subject to our remedial order because of the absence of proof that its decision to discharge Bianchi was connected to his Rules-protected activity. Our finding is that Roadway improperly benefited from the retaliatory conduct attributable to the union in the grievance procedure; we will not permit Roadway to retain that undeserved benefit.

We also reject Roadway's argument that it is not subject to our remedial order because it is not party to the Election Agreement. We find we have sufficient authority under the Rules, the Consent Decree and the All Writs Act to require Roadway to comply with our decision. United States v. IBT (Star Market), 954 F.2d 801, 807-10 (2d Cir. 1992), cert. denied, 505 U.S. 1205 (1992).

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, 30515 Timberbrook Lane, Bingham Farms, MI 48025 (facsimile: 248-593-5128), all within the time prescribed above. Please note this change of address. A copy of the protest must accompany the request for hearing.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy

2002 EAD 554

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 3060

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

Todd Thompson

209 Pennsylvania Ave., SE

Washington, DC 20003

Matt Ginsburg

30 Third Avenue

Brooklyn, NY 11271

James L. Hicks, Jr., P.C.

Suite 1100

2777 N. Stemmons Freeway

Dallas, TX 75207

James McCall

IBT Legal Department

25 Louisiana Ave. NW

Washington, DC 20001

Jack E. Peak

Assistant General Counsel

Roadway Express, Inc.

1077 Gorge Boulevard

Akron, OH 44309

Todd Dawson

Baker & Hostetler, LLP

3200 National City Center

1900 East 9^th Street

Cleveland, OH 44114

IBT Local 390

12365 West Dixie Highway

North Miami, FL 33161

Amadeo Bianchi

1201 SW 128 Terrace

E-409

Pembroke Pines, FL 33027

Andrew Schilling, AUSA

United States Attorney for Southern District of New York

1 St. Andrews Plaza

New York, NY 10007

Charles Carberry

Chief Investigator

Independent Review Board

17 Battery Place, Suite 331

New York, NY 10004

Q    But you persuaded at least one of them to vote with you; right?

A    Yes.

Q    And how did you do that?

A    Just kept after him.  Sometimes they just give up.

Q    And you kept after him how?

A    Just kept badgering him.  "Put him back to work."