Protest Decisions

IN RE: T.C. BUNDRANT, Protestor.
Protest Decision 2005 ESD 19
Issued: October 25, 2005
OES Case No. P-05-012-090705-SO

(See also Election Appeals Master decision 05 EAM 4)

T.C. Bundrant, member and principal officer of Local Union 549, 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"). The protest alleges that International representative Ricky Maxwell threatened that members of Local Union 549 would be forced, without a vote or other recourse, to transfer out of that local union, and that said threat was in retaliation for Bundrant's stated intention to run for International Vice President on a slate opposing the Hoffa 2006 slate.

Election Supervisor representatives Dolores C. Hall and Jeffrey Ellison investigated the protest.

Findings of Fact

Local Union 549 and several other Teamster local unions are and have been parties to a series of collective bargaining agreements with Land-O-Sun Dairies, Inc. The Land-O-Sun contracts cover a broad geographic area in the southern United States, including jurisdictions in Tennessee, Kentucky, Virginia, North Carolina, South Carolina, and Georgia. Prior to the events detailed below, the collective bargaining agreement stated that jurisdiction of Local Union 549, headquartered in Blountville, Tennessee, consisted of twenty-three locations in the following states: Tennessee (Greeneville, Johnson City, Kingsport and Morristown), Kentucky (Hazard, Middlesboro, and Whitesburg), Virginia (Big Stone Gap, Bluefield, Grundy, and Wytheville), North Carolina (Burlington, Charlotte, Greensboro, and Salisbury), and Georgia (Atlanta, Augusta, Bogart, Gainesville, Lawrenceville, Macon, Washington, and Winder). Jurisdiction over the remaining locations were divided among Local Unions 22 (one location), 28 (five locations), 61 (two locations), 509 (four locations), 592 (one location), and 822 (two locations).

Land-O-Sun has discontinued operations at many of the locations identified in the contract that expired September 30, 2004, and has established worksites with Teamster members at other locations. Thus, although Local 22 has been signatory to the succession of Land-O-Sun contracts, the one location under its jurisdiction has ceased operations and that local no longer represents Land-O-Sun members; Local 28's worksites have dropped from five to two, both in South Carolina; Local 61 has picked up two locations and now represents four, all in North Carolina; Local 509 has dropped from four to two, both in South Carolina; Local 592 still represents its single location in suburban Richmond, Virginia; and Local 822 represents two groups in Portsmouth, Virginia. With respect to Local 549, Land-O-Sun ceased operating all of its Kentucky locations, consolidated its Tennessee operations from four worksites to one, increased its operations in Virginia from four to five, limited its North Carolina worksites from four to one, and cut its Georgia sites from eight to one.

The preamble of the Land-O-Sun collective bargaining agreement that expired in 2004 stated that it was an agreement between Land-O-Sun "and Teamsters Local Unions 22, 28, 61, 509, 549, 592, and 822 and such other Local Unions affiliated with the International Brotherhood of Teamsters who may become party to this Agreement." The recognition provision of the expiring contract specified the particular locations in each local's jurisdiction.

The parties met to negotiate a successor collective bargaining agreement beginning in August 2004. The lead negotiator for the locals was IBT Vice President Fred Gegare. The parties agreed to delete the language from the recognition provision that specified the work jurisdictions assigned to each local union. Transcript of the bargaining session held August 4, 2004, shows the following exchange between Gegare and employer negotiator Steve Darden:

Gegare: Now I've got to get this understood, what local represents who. So I may be taking a position that I want to check these locals' charters. I can't keep having people all over the map. So I'm going to be working on that. But I think, and you should know, who is who and what local represents who. I'm confused.

Darden: Well, we'll hear from you on that.

Gegare: Yeah.

The discussion that immediately followed centered on transferring members between locals when the employer moves work from one location to another. The speakers are union negotiators Gegare and L.D. Fletcher (Local Union 509) and employer negotiator Dan Nix:

Fletcher: When you notify a local union, which do you notify; the one going to or the one leaving?

Nix: We would notify the union that it is being moved from. We transferred work to Portsmouth and Greeneville and the notice went to T.C. [Bundrant] because that is where the work was moving from.

Gegare: Who was losing the work? T.C.?

Nix: Yes.

Gegare: Larry [referring to Larry Coley, the employer's HR manager], send me a map of all the areas you have and what local represents them. I want to know what local is where. Can you do that for me? If I've got a guy from Green Bay representing a guy in Greeneville, [and] I don't have that on my charter, that shouldn't be.

The proposed changes in the recognition clause were addressed again at the November 22, 2004 bargaining session, as follows:

Darden [for employer]: Every time we negotiate this contract we are modifying this list. We are simply taking the approach that if a facility is in the bargaining unit as of October 1, 2004, then that's what the bargaining unit is. If any added then they would be assumed to be part of the bargaining unit too. It could happen by agreement of the parties or through an election. So if anybody has questions I will be happy to answer.

Gegare: What is the company's position if you buy an operation outside of the states listed here? Say you go to another state and buy an operation.

Darden: Well, let me just read it. Employer facilities in the bargaining unit as of October 1, 2004 in the states of Tennessee, North Carolina, South Carolina, Virginia and Georgia. That captures the ones as of now. Other facilities as may be added to or become part of the agreement. It does not preclude a facility outside these states.

The transcripts of this and subsequent bargaining sessions show no discussion concerning moving members from one local to another without a corresponding change in the location of the employer's work for those members.

The successor collective bargaining agreement as ratified contained no change in the language of the preamble quoted above. The recognition clause deleted the language that expressly identified the jurisdiction of the various local unions. The successor agreement was ratified on April 14, 2005.

Larry Coley, Land-O-Sun HR manager, told our investigator that the employer proposed the change in the recognition provision of the contract because many of the locations listed in the previous contract no longer existed. Coley recalled that Gegare said he was going to put the members of the locations "into their respective locals." However, no such statement is included in the transcripts of bargaining provided to us.

On September 15, 2005, some five months after ratification, Gegare wrote Coley to announce effective October 1 that members represented by Local 549 "will be represented by the respective local in the geographical area as per article 1 of the new collective bargaining agreement and per the Local Union's IBT Charter." The letter stated that members would be transferred as follows:

Big Stone Gap, Virginia location to Local 22
Claypool Hill, West Virginia [sic] to Local 22
Bluefield, West Virginia [sic] to Local 175
Roanoke, Virginia to Local 171
Atlanta, Georgia to Local 528
Charlotte, North Carolina to Local 71

The sole rationale stated in Gegare's letter as follows:

The Company is currently deducting dues at these locations and sending the dues to Local 549 again 549's charter does not cover the above locations and as of October 1, 2005 I want you to submit the names of your employees with the dues check off to the above Local Union.

Gegare's letter identified the Claypool Hill and Bluefield worksites as located in West Virginia although they actually are in Virginia. Except for Local 22, none of the locals designated to receive members from Local 549 has ever represented Land-O-Sun employees. Except for Local 22, none has ever been or is now a signatory to the collective bargaining agreement with Land-O-Sun. Local 175 is the only local union to receive members who represents any members employed in the dairy industry.

Local 549 held jurisdiction over each of the work locations listed in the predecessor contract since 1979 when Local 23, which previously had jurisdiction over the sites, was merged into Local 549. According to the protestor and Paul Bellamy, former principal officer of Local 23, Local 23 was chartered by the IBT as the bargaining representative of the Pet, Inc. Dairy Group employees at 23 locations in Tennessee, Kentucky, Virginia, North Carolina, and Georgia, and Local 549 absorbed this charter when Local 23 was merged into it. Pet is the parent of Land-O-Sun.

In contrast to Local 549's historical claim to jurisdiction, the locals to which Gegare transferred the Land-O-Sun worksites appear to have little jurisdictional claim to them. Local 175 principal officer Ken Hall told our investigator that his local's charter is limited to West Virginia; Land-O-Sun has no locations in West Virginia. Michael Hughes, principal officer of Local 22, told our investigator that he met with representatives of Locals 171 and 175 to discuss the transfer of members to their locals from Local 549. They examined a jurisdictional map of Virginia and concluded that, except for Claypool Hill, all of the Virginia worksites properly were within the jurisdiction of Local 549. According to the jurisdictional map, Claypool Hill belonged in Local 22; however, Hughes indicated that Local 549 should retain Claypool Hill because of its history of representing that group. The jurisdictional map was issued by Richmond Joint Council 83 on June 1, 1964 and divides Virginia among several local unions, including Tennessee-based Local 549.

Gegare's distribution of Local 549's worksites impacted members' rights under the collective bargaining agreement. The members employed at Bluefield, Claypool Hill, and Radnor are listed on the same seniority roster, which is used for purposes of layoff, recall, and vacation selection. Equally, Big Stone Gap members are included on the seniority roster for Kingsport, Tennessee. Yet, Gegare's transfer of Local 549's members split the Bluefield/Claypool Hill/Radnor seniority list between Locals 175 and 22; the transfer also split the Kingsport/Big Stone Gap seniority list between Locals 549 and 22. Administration of a single seniority roster by two locals may cause confusion as to which local is responsible for grieving an alleged violation of contractual seniority rights, with consequent loss of those rights. On the other hand, if separate seniority rosters are created to correspond to the locals that represent the members, more senior members at one location will be exposed to greater risk of layoff after the split than before.

The IBT presented three reasons it contends justifies the transfer of Local 549's members to other locals. First, Gegare told our investigator that he had wanted for some time to "correct" the situation of Local 549 representing members in states other than Tennessee, where its hall is located. Second, he said that some members had complained that Local 549 could not effectively represent them when the local was so far away. Finally, the IBT asserted that few of the employees working at distant locations under Local 549's jurisdiction were dues-paying members, and the transfer of those work locations to geographically closer local unions was done to increase the membership rate.

With respect to the issue of representing members at work locations outside Tennessee, Local 549 has a 26-year history of doing so. Further, Local 175, to which the Bluefield, Virginia worksite was transferred, is headquartered in West Virginia but also represents members in Ohio, Kentucky, and Virginia. Similarly, Local 528, to which Local 549's Atlanta members were transferred, represents Teamsters across Georgia but also represents groups in Florida. Local 71, in Charlotte, North Carolina, represents members in North and South Carolina. Finally, Collinsville-based Local 22, located in south-central Virginia, represents a UPS work location in Johnson City, Tennessee. Of the 4 locals to which Local 549's members were transferred, only Local 171's membership is confined to one state; all of the other locals represent members in two or more states.

For the members to be transferred to Local 22, the distance from work location to local union hall was substantially further after the transfer than before. Thus, the distance from Big Stone Gap, Virginia to Local 549's hall is approximately 60 miles while the distance to Local 22 is 212; from Claypool Hill, Virginia to Local 549 is 67 miles, to Local 22, 164. The Bluefield, Virginia location is roughly equidistant between Local 549 and Local 175. The remaining members to be transferred are to be placed in locals in the cities of their work locations. Thus, the Roanoke, Virginia members were moved to Local 171 in Roanoke; the Charlotte, North Carolina group was transferred to Local 71 in Charlotte; and the Atlanta members were moved to Atlanta Local 528. The distance from Roanoke, Charlotte, and Atlanta to Local 549 are 157, 217, and 317 miles, respectively.

On the contention that members at distant locations had complained about inadequate representation by Local 549, no documentation was produced to substantiate such complaints. However, Local 71 president Ted Russell told our investigator that a petition was circulated among the Charlotte members of Local 549 "about a year ago" requesting that they be transferred to Charlotte Local 71. The petition stated that -

- the undersigned employees … wish to be represented by Teamsters Local 71. We believe that belonging to a local union based in our home community will give us better representation and a stronger voice in our wages, benefits and working conditions.

The petition garnered 19 signatures. Of those, 4 were employees who do not appear on the current seniority roster; 3 signatures were of non-members. Russell told our investigator that he sent his organizing director, Matt Emmick, to the Charlotte worksite with the petition in late summer or early fall 2004 to speak with routemen about the advantages of being represented by a local union in the same city. When Emmick returned with the petition signed, Russell states that he sent it to Robert Baptiste, his lawyer in Washington, along with additional documents. According to Russell, Baptiste reviewed the material and told Russell that he "didn't really have a leg to stand on" (Russell's recounting of the legal advice) with respect to gaining jurisdiction over Local 549's members because Local 71 had not organized the members originally. Instead, they had been organized by the dairy local out of Tennessee, and, according to Russell, Baptiste told him that is where the jurisdiction lay.

When the protestor, T.C. Bundrant, learned of Local 71's activity and the petition in 2004, he contacted Russell to "find out why Local 71 was signing my members up." Bundrant states that Russell told him he had permission to do so from Gegare and Maxwell. Bundrant further states that he told Russell, "Just because you're friends with them and I'm running against them, that doesn't give you the right to take my members." Russell agrees that he had a conversation with Bundrant about the petition but denies that Bundrant said anything about his past or future candidacy. In addition, Russell states that he told Bundrant that the Charlotte members complained that Local 549 was not representing them sufficiently.

Bundrant states the exchange with Russell prompted him to contact IBT legal director Gary Witlen to tell him that Local 71 was trying to sign up his members and to ask whether any jurisdictional challenge had been made to his local. Bundrant states that Witlen told him no jurisdictional challenge had been filed and that Local 71 could not take his members merely by signing them up. Witlen corroborates Bundrant's recollection in this regard.

Russell stated that he told Gegare and Ricky Maxwell, IBT Southern Conference Dairy Director, that he wanted to represent the Charlotte Land-O-Sun employees. Russell states that both Gegare and Maxwell told him that they would address the matter in contract negotiations. Based on this assurance, Russell ceased attempting to sign up the Charlotte members in 2004.

Local 71's organizer, Emmick, returned to the Charlotte worksite in late August 2005, shortly before Gegare's letter to Coley announcing the transfer of members from Local 549 to the other locals. Emmick circulated membership cards among the employees. However, Russell subsequently learned from Maxwell that Emmick should have circulated dues check-off authorizations instead because, according to Maxwell's advice to Russell, the newly ratified contract allowed the transfer of members between local unions. Emmick's appearance caused a second petition to be circulated among Charlotte members of Local 549 requesting that they not be transferred out of Local 549. Ten signatures appear on the second petition, all of them dues-paying members; four members signed both the 2004 and the 2005 petitions. Chuck Maynard, a Charlotte routeman, presented this petition to Ted Russell; Russell responded by telling Maynard that members had no say in the local to which they were to be assigned, that it was governed by the new contract with Land-O-Sun.

Investigation of the third reason for the transfer, low rate of membership, showed the following. Each of the states involved here has a so-called "right-to-work" statute that prohibits contractual union security provisions. As such, employees covered by the bargaining unit are not required to join and maintain membership in the union as a condition of employment. Instead, union membership in such locales consists of those employees who elect to join and continue membership. Counsel for the IBT indicated that IBT negotiators "were generally aware … that there were comparatively low numbers of employees opting to become members in the non-Tennessee Land-O-Sun locations over which Local 549 had asserted jurisdiction. In Charlotte, for example, I understand that the number of employees who were members was roughly 5-6%." We investigated the membership percentages at the Land-O-Sun locations represented by Local 549 work locations within and outside Tennessee. A comparison of current seniority rosters, which contain all bargaining unit employees working at each location, with dues remittances for September 2005, the last month available, showed the following:

Overall, of the 200 Land-O-Sun employees within Local 549's jurisdiction, 152, or 76% were members in the last accounting period. Of the work locations transferred from Local 549 to other locals, a higher portion of the employees - 80% - were members in the month immediately preceding the transfer. In particular, the Charlotte location referenced by IBT counsel showed a membership percentage of 77%, significantly greater than the 5-6% membership rate cited.

The protestor, T.C. Bundrant, was a candidate for IBT vice president on the Leedham slate in the 2001 election. On July 9, 2005, the Committee for New Leadership convened a half-day meeting in Atlanta that focused on developing a slate of candidates to oppose the Hoffa slate for the 2006 IBT International Officer election. The meeting was announced in Convoy Dispatch, the newspaper of Teamsters for a Democratic Union and on TDU's website. Bundrant attended the meeting and declared there that he would definitely be on the slate of candidates to challenge the Hoffa slate for international office.

Maxwell told our investigator that he was unaware of the Atlanta meeting, stating that he did not associate with "that bunch." In particular, he stated that he had heard nothing about Bundrant's intention to run for International office and believed instead that he planned to retire, a belief also held by Land-O-Sun's Coley. Bundrant denied to our investigator that he intended to retire and states he never spoke with Maxwell about retiring. Bundrant acknowledged speaking with Coley about transferring the leadership of Local 549 to Scott Armstrong, a Land-O-Sun employee. Bundrant states that Armstrong would take over if Bundrant were elected International Vice President. Bundrant spoke with Coley about protecting Armstrong's right to return to full-time Land-O-Sun employment if Armstrong determined that he preferred it to the post at the local. Coley presented a side agreement to Bundrant that preserved Armstrong's seniority right to return to Land-O-Sun employment after full-time service as local union officer; the agreement was contingent on Bundrant retiring by the end of 2005, and Bundrant refused to sign it for that reason. Armstrong and Local 549 bargaining team member Wally Gravely both state that never heard Bundrant speak of retiring; both also state that Armstrong would take over the local if Bundrant was elected to International office.

Our investigator sought to question Gegare concerning his knowledge of Bundrant's attendance at the July 9 Atlanta meeting and his intention to run for International office; however, Gegare failed to return several phone calls from our investigator. Our investigator sampled local union leadership in the Southern Region who are not involved in this protest to inquire whether they monitor TDU's website; the uniform response was that they do so in order to learn what TDU is saying and prepare to counter it. Investigation showed that Gegare has published material in Wisconsin Teamster responding to criticisms of IBT policy that have appeared in Convoy Dispatch and on TDU's website. In addition to his other duties, Gegare serves as the chair of the union trustees of the Central States Pension Fund and in performing those responsibilities is frequently criticized by TDU. Gegare's articles suggest that he has reviewed the TDU sources, and we find it likely that he was aware of the July meeting in Atlanta of the Committee for New Leadership that Bundrant attended.

When Bundrant learned that Gegare and Maxwell were behind the impending transfer Local 549's members, he first telephoned Gegare for an explanation; Gegare promised to return the call but, according to Bundrant, has yet to do so. Bundrant then telephoned Maxwell from his office speaker phone. According to Bundrant, he asked Maxwell why Maxwell was interfering in Bundrant's local, stating that he had never interfered in Maxwell's local. Maxwell responded that Bundrant indeed had interfered in Maxwell's local when Bundrant had campaigned for the Leedham slate in 2001. Bundrant replied that he had campaigned in Maxwell's local but had not tried to sign up Maxwell's members. Bundrant's account of this telephone conversation was corroborated by Ron Bonglio, current member of Local 667 and former member of Local 549, who was visiting the protestor at Local 549's hall and heard the entire exchange on Bundrant's speaker phone.

Maxwell agrees that the call took place. However, he recounts it as follows: Bundrant telephoned him and asked him if he was going to tell Bundrant what was going on regarding the transfer of members out of Local 549. Maxwell states that he told Bundrant that he was not going to tell him and asked Bundrant whether he had spoken with Gegare. Bundrant said he had spoken with Gegare, but he wanted to know whether Maxwell was going to tell him anything; Maxwell replied, "no."

Maxwell stated that Bundrant then asked him why he was meddling in Bundrant's local, stating, "I never meddled in yours." Maxwell replied that Bundrant indeed had meddled in Maxwell's local when he had campaigned at one of Maxwell's worksites in the last election. Maxwell asserts that the only reference to campaigning concerned the 2001 election; no mention was made of the current election or Bundrant's candidacy, which Maxwell asserted he was unaware of.

Investigation showed that Local 71 is the only local union that actively pursued Local 549's members. Interviews with the principal officers of the other locals uniformly showed that the first notice to these locals that they would receive members from Local 549 was Gegare's letter to Land-O-Sun's Coley transferring the members. Locals 71, 171, 175, and 528 were not parties to the collective bargaining agreement with Land-O-Sun and have not become signatories since the date of Gegare's September 15 letter.

Article XII, Section 21 of the IBT Constitution states that when a dispute arises over jurisdiction, "such controversy shall be submitted for determination to the Joint Council Executive Board," which "shall conduct a hearing into any jurisdictional dispute in accordance with the [internal union trial] provisions" of the Constitution. Any party aggrieved by the decision may appeal for the appointment of a special committee, which shall hold a hearing and issue a report and recommendations to the General Executive Board on the issues raised. The GEB has constitutional authority to issue a final decision on the dispute. Neither Gegare, Maxwell nor Local 71 invoked this procedure before Gegare ordered the transfers.

On September 19, 2005, Local 549's attorney, Bruce Shine, wrote to General President Hoffa to protest Gegare's action in transferring Local 549's members to other locals. The letter asserted that the members are within the jurisdiction granted Local 549 and, by Constitution, may be removed only by action of the General Executive Board. No written response has been generated. However, because of oral advice from the IBT, Bundrant has now sent a substantially equivalent jurisdictional protest to the General President over his own signature.

The transfer of members from Local 549 has no effect on the number of delegates or alternate delegates to which it is entitled. However, loss of 200 employees from the local's jurisdiction, more than three-quarters of whom are members, will cause it to lose roughly one-third of its monthly dues income and, according to Bundrant, threaten its continued viability.

Analysis

Article VII, Section 11(g) of the Rules provide the following:

Retaliation 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 is prohibited.

As we said in Cooper, 2005 ESD 8 (September 2, 2005), to establish a violation of this provision, "the evidence must demonstrate that 1) the alleged victim engaged in activity protected by the Rules, 2) the charged party took adverse action against the alleged victim, and 3) the protected activity was a motivating factor in the adverse action."

Article VII, Section 11(a), among other places, identifies activity protected by the Rules, viz.

All Union members retain the right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.

Investigation shows that the protest easily satisfies the first two elements. Bundrant engaged in protected activity in at least two ways: he attended the July 9 Atlanta meeting convened for the purpose of developing a slate to oppose the Hoffa slate, and he declared his intention to be a candidate on that opposition slate. Further, the transfer of a substantial portion of membership of which Bundrant is principal officer constitutes adverse action here.

To establish a connection between the protected activity and the adverse action, we examine the investigative record for direct or indirect evidence that the action was motivated, at least in part, by the protected activity. "Direct evidence" is proof that establishes the existence of a retaliatory motive without the need for presumption or inference. For example, expressly linking the threatened action to the protected activity is sufficient direct evidence to prove impermissible retaliation. See, e.g., Ostrach, 2000 EAD 57 (December 6, 2000), aff'd, 01 EAM 15 (January 19, 2001) "Indirect evidence," in contrast, is proof that allows the fact-finder to infer a retaliatory motive from a determination that the rationale offered by the actor is not based in fact.

Here, the record shows that members were transferred from Local 549 because of Bundrant's protected activity. Thus, Maxwell, the Southern Conference Dairy Director, responded to Bundrant's complaint about transferring Local 549's members by asserting that Bundrant had "meddled" in Maxwell's local by campaigning for Leedham in 2001, a point Maxwell conceded to our investigator. Maxwell's express reference to Bundrant's past political activity would, absent other facts, be a non sequitur for it is, by its terms, unrelated to the issue Bundrant raised with Maxwell. However, Maxwell made his statement in the context of the new election cycle, after Bundrant attended the well-publicized Atlanta meeting convened for the purpose of developing a slate to oppose the Hoffa slate, and as the sole explanation Maxwell offered Bundrant for transferring Local 549's members.

The record is replete with indirect evidence of retaliatory motive. Each of the justifications presented by IBT representatives fails scrutiny. First, Gegare's statement that he made the transfers to "correct" the problem of Local 549 representing members at work locations outside of Tennessee, does not pass muster. All but one of the transferee locals represented members at work locations in several states, so the existence of that circumstance in Local 549 was not a unique matter that demanded "correction." This finding is reinforced by the fact that Local 549 has jurisdiction in Virginia, according to the 1964 jurisdictional map issued by Joint Council 83.

Second, our investigation uncovered no member complaints that had been made about Local 549's representation at distant worksites. At Charlotte, where two petitions were circulated, the first, produced by Local 71, requesting transfer of representation and the second, generated by members, seeking status quo, we place greater reliance on the second because it was comprised completely of dues-paying members employed at the location and was contemporaneous with the transfers at issue here. We therefore conclude that member dissatisfaction did not justify the transfers.

Finally, the contention that membership rates at locations distant from Local 549's hall are comparatively low is sharply contradicted by the facts.

Aside from the lack of factual support for the stated justifications for the transfers, several reasons support the inference that the transfers were motivated by retaliation. Thus, most of the locals were unaware that the transfers were even to take place; most locals receiving the members were not signatories to the Land-O-Sun contract; and most had no current experience in the dairy industry. Two of the transfers split seniority rosters, thereby impacting members' rights. The transfers were neither required nor suggested by the changes negotiated in the recognition clause of the Land-O-Sun agreement. Finally, although the IBT Constitution has a procedure for resolving jurisdictional disputes between local unions, neither Gegare, Maxwell, nor Local 71 (the only local that sought the members) invoked the procedure to claim the members. Rather, Gegare ordered the transfers on his own authority and sidestepped the constitutional procedure altogether.

At bottom, although Gegare and Maxwell contend they gained the authority for the transfers by contract, the change in contract language neither expressly nor implicitly authorized transfers of worksites between local unions without a corresponding transfer by the employer of work from one worksite to another. Moreover, despite Gegare's claim that the right to transfer members between locals was long sought, he did nothing immediately upon the contract being ratified but rather waited five months before ordering the transfers. The event closest in proximity to Local 71's late August reappearance at the Charlotte worksite - a reappearance authorized by Gegare and Maxwell that presaged Gegare's September 15 letter to the employer - was Bundrant's July attendance at the Atlanta meeting convened to form an opposition slate.

In sum, we GRANT the protest, finding that Bundrant engaged in protected activity within the meaning of the Rules and suffered adverse action as a result.

Remedy

When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
We order that the decision of IBT Vice President Fred Gegare, taken September 15, 2005, to transfer worksites from Local 549, be vacated and that all such worksites be returned to the jurisdiction of Local 549. To effectuate this remedy, we direct Gegare, within two (2) working days of this decision to advise Land-O-Sun Dairies in writing that the worksites identified in his September 15, 2005 letter are to be returned forthwith to the jurisdiction of Local 549 and that all dues remittances attributable to members at said locations are to be transmitted to Local 549. To the extent that dues from the work locations at issue here have been remitted to any other local, each such local is to transfer said dues to Local 549 within two (2) working days of this decision or the date the local receives the remittance, whichever is later.
A decision of the Election Supervisor takes immediate effect unless stayed. Lopez, 96 EAM 73 (February 13, 1996).
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, 1725 K Street, N.W., Suite 1400, 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
2005 ESD 19

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 

David J. Hoffa
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com 

Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net 

Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org 

T.C. Bundrant
Teamsters Local Union 549
2857 Highway 11-W
Blountville, TN 37617-3607
TLU549@aol.com 

Fred Gegare
1546 Main Street
Green Bay, WI 54302

Ricky Maxwell
P.O. Box 310
Taylors, SC 29687

Michael Hughes
Teamsters Local Union 22
97 Belmont Street
P.O. Box 368
Collinsville, VA 24078

Ted Russell
Teamsters Local Union 71
P.O. Box 560248
Charlotte, NC 28256

Roosevelt Via
Teamsters Local Union 171
2015 Melrose Avenue, N.W.
Roanoke, VA 24017

Ken Hall
Teamsters Local Union 175
P.O. Box 4405
Charleston, WV 25364

Don Toney
Teamsters Local Union 528
2540 Lakewood Avenue, S.W.
Atlanta, GA 30315
dtoney@local528.com 

Larry Coley
Land-O-Sun Dairies
Southeast Region
3300 The Plaza
Charlotte, NC 28205

D. Bruce Shine
Shine & Mason
433 East Center Street
Suite 201
Kingsport, TN 37660
bruceshine@chartertn.net 

Dolores C. Hall
1000 Belmont Place
Metairie, LA 70001
Hall1000@bellsouth.net 

Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com