IN RE: MELODY MINER,
Protest Decision 2005 ESD 1
Issued: May 27, 2005
OES Case No. P-05-001-051205-SO
Melody Miner, a member and former employee of Local 373, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). She alleges that she was discharged from her employment with Local 373 because of her stated intention to run for election as delegate and principal officer of the local.
Election Supervisor representative Dolores C. Hall investigated this protest.
Findings of Fact
Miner, a 19-year employee of the local union, was discharged on May 3, 2005, by Stacy Fox, the local's newly appointed secretary-treasurer. Miner contends that Fox discharged her because she "made it VERY clear that [she] would like to have the principal officer job and made it even more clear that [she] would be running for delegate to the 2006 convention."
Fox denies that he was aware of Miner's desire to run for delegate or that he discharged her for that reason; further, he states the discharge is unrelated to any rights Miner may have exercised under the Rules.
Miner was hired as secretary in 1986 by her father, Ott Rogers, who was then principal officer of the local. When Rogers retired in 1991, he exacted a promise from his successor, Randall Sanderson, that Sanderson never fire Miner, a promise Sanderson kept for the 14 years he held office.
On April 17, 2005, Sanderson convened a special meeting of the local's executive board to announce his retirement. The executive board proceeded to appoint Fox, the existing president, as principal officer.
Miner, who was not a member of the executive board, nonetheless knew that Sanderson's retirement was approaching. According to Sanderson, Fox, and assistant business agent Terry Shaffer, Miner expressed many times over the course of the year preceding Sanderson's retirement her wish to be appointed principal officer. Indeed, she asked Sanderson to arrange her appointment as secretary-treasurer upon his departure.
Although Miner desired the principal officer position, she eventually recognized that Fox would get it. Understanding this, she told Shaffer that she would do nothing to help Fox in his new position and would "just sit back and watch him fall on his face." Similarly, she told Fox that she would do only the job she was paid for, implying that he would have to do his without her assistance. Then, upon Fox's installation as secretary-treasurer, Miner commenced what was described to our investigator as "a morning ritual" of walking into her office at the start of each day, slamming the door, and remaining there with the door closed all day. Miner did not deny closing her door but said she did so because Fox was a smoker.
The relationship between Miner and Fox became difficult in 2000, when Fox determined that Miner's engagement to marry a sitting trustee of the local presented an impermissible conflict of interest. Fox told Miner that her employment with the local would be jeopardized if the conflict were not resolved. As a result, Miner's then-fiancé resigned his position as trustee, but promptly instituted internal union charges against Fox. Although the charges were dismissed, the relationship between Miner and Fox suffered.
According to Fox, Miner told him the day after he was appointed principal officer that she should have gotten the job. Thereafter, in addition to the "morning ritual" described above, Miner showed a repeated lack of cooperation with Fox by providing him with insufficient information to perform his job effectively. When Fox told Miner that they needed to get along, Miner replied that she need only do her job.
On the morning of May 2, Fox suspended Miner, according to Miner, for being rude to a member. The next day, he discharged her.
Miner responded in several ways. Thus, she filed a grievance against the local, claiming that her discharge violated the National Master Freight Agreement and a collective bargaining agreement between the local and a sister local.[1] Further, she wrote Southern Region Vice President Tyson Johnson, seeking his intervention. In her 5-page letter to Johnson, Miner attributes her discharge to two issues: the 2000 conflict-of-interest matter involving her then-fiancé and her desire to be named principal officer of the local. The letter makes no reference to delegate candidacy. Finally, she filed the instant protest, asserting that her discharge was because of her Rules-protected activity of seeking election as delegate.
Miner served as delegate to the 2001 IBT convention. However, Fox and Sanderson both stated that they had not heard prior to Miner's discharge that she intended to run for delegate to the 2006 Convention. Although Miner alleges that she made her delegate candidacy clear, she identified only three persons, aside from her husband, as corroboration. The first, UPS employee Bob Highfill, stated that Miner initially told him of her delegate candidacy the day after her discharge. Judy Latshaw, a close friend, was uncertain but believed that Miner first spoke of her delegate plans in the week prior to her discharge. Miner also thought she told assistant business agent Shaffer "at one time or another" prior to her discharge, but she was unsure that she did so. Shaffer denied to our investigator that he knew of her candidacy, stating that her allegation that she was fired for such candidacy was "off the wall."
Analysis
The Rules protect the right of eligible IBT members to run for delegate. As the Election Officer has stated:
Since the Rules protect campaign activity as a personal right of members, the exercise of that right cannot be interfered with by labor organizations or employers, including the IBT as an employer.
Hoffa, P812 (August 16, 1996). Therefore, the IBT and all IBT subordinate bodies, including Local Union 373, are "prohibited from using the electoral preferences or activities of its employees as factors in any employment-related decision." Pope, 2000 EAD 39 (October 17, 2000), aff'd, 00 EAM 11. Article VII, Section 11(g) of the Rules states this protection: "Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or any 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 is prohibited."
To prevail on a claim of retaliation, the protestor must show that she engaged in activity protected by the Rules and that such protected activity was a motivating factor in the adverse decision or conduct in dispute. The Election Supervisor 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.
Here, Miner claims that her protected activity was her candidacy for convention delegate. The Rules define "candidate" as:
any member who is actively seeking nomination or election for any Convention delegate or alternate delegate position or International Officer position. The term includes any member who has accepted any campaign contribution as defined by the Rules or made any expenditure, where the purpose, object or foreseeable effect of the contribution or expenditure is to influence the election of that member to any such position.
Rules, Definition 6. In Martin, P10 (August 17, 1995), aff'd, 95 EAM 18, the Election Officer instructed that, to determine whether a member is "actively seeking nomination or election," one must examine the indicia of candidacy, including "a declaration or announcement of candidacy or other statement of intent to seek a delegate, alternate delegate, or International officer position." In Pope, 2000 EAD 4 (August 1, 2000), aff'd, 00 EAM 3, the Election Administrator held a member to be a candidate because he made a "classic 'stump' speech," even though his candidacy was otherwise undeclared. In Guzman v. SEIU 32B-32J, 158 LRRM 2971 (2d. Cir. 1998), the Court held the plaintiff a candidate because he "made noises like a candidate."
Despite the low threshold for establishing candidacy, Miner has not done so. Far from her assertion that she had made her intention to run for delegate "very clear" prior to her discharge, Miner was not able to provide evidence that her intentions were well-known to others before her termination. Of the persons Miner cited as available for corroboration, two contradicted Miner's contention and the third was "uncertain" whether Miner had mentioned an interest in the delegate election before the termination. Most importantly, there is no evidence that Fox or any other officer or employee of the local was aware of Miner's delegate candidacy at the time of her discharge. Accordingly, Miner cannot establish that she engaged in activity protected by the Rules.
Even were she able to show protected activity, Miner cannot substantiate that such activity was the motivation for Fox's decision to discharge her, for the plain reason that he was unaware of it. Further, Miner's statements and conduct in the aftermath of Fox's appointment as secretary-treasurer bear out Fox's stated rationale for her dismissal. Finally, Miner's protestations to Tyson Johnson attributing the discharge to other factors undercut her claim that she was discharged in retaliation for her delegate candidacy.
As a final point, the Election Supervisor has no jurisdiction over Miner's claim that her discharge was also in retaliation for her desire to be appointed principal officer. The preamble to the Rules states that the Election Supervisor's authority to supervise the electoral process "is limited to the nomination and election of International Convention delegates and alternate delegates and nomination and election of International Officers. These Rules are not applicable to elections of IBT subordinate body officers." The Election Supervisor therefore has no authority over selection of local union officers, Jordan, 2001 EAD 76 (January 3, 2001); Collett, 2000 EAD 66 (December 19, 2000); Hale, 2000 EAD 61 (December 12, 2000), or other non-election conduct, McPherson, 2000 EAD 33 (October 6, 2000).
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 Supervisor 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 the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, c/o Orrick, Herrington, & Sutcliffe LLP, 3050 K Street, N.W., Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2005ESD 1
[1] Miner's employment does not appear to be covered by the National Master Freight Agreement nor is there any contract in place between Local 373 and any other union.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
pszymanski@teamster.org
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
braymond@fwslaw.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net
Melody Miner
Route 4, Box 188
Muldrow, OK 74948
redlandmel@aol.com
Stacy Fox
Secretary-Treasurer
IBT Local 373
P.O. Box 6268
Fort Smith, AR 72906
teamsters373@cox-internet.com
Dolores C. Hall
1000 Belmont Place
Metairie, LA 70001
hall1000@cox.net