IN RE: WILLIAM NELSON, GORDON FRAZIER, and NEIL BOTWRIGHT, Protestors.
Protest Decision 2006 ESD 317
Issued: July 9, 2006
OES Case No. P-06-292-060806-MW
Delegates William Nelson and Gordon Frazier and alternate delegate Neil Botwright, members of Local Union 328, filed a post election protest pursuant to Article XIII, Section 3 of the Rules for the 2005 2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged the following:
1. The IBT-appointed trustee of Local Union 328 repeatedly threatened delegate Frazier that he would not be permitted to attend the IBT convention because the local union had been placed in trusteeship;
2. Delegate Nelson received "hate" mail at his home that contained information obviously obtained from employees of Local Union 328;
3. The local union trustee held personal belongings of the protestors to silence their political views;
4. The trustee refused to answer the protestors' letters and requests;
5. The trustee, before assuming that post, assaulted delegate Nelson twice, causing physical injury each time;
6. A trusteeship was imposed upon Local Union 328 without investigation;
7. The acts of intimidation resulted from the fears of the trustee and other Joint Council 43 officers that delegate Nelson would run against them in the fall elections; and
8. Delegate Frazier was discharged as business agent because he was "too loyal" to delegate Nelson, who was the former principal officer of the local union.
Election Supervisor representative Joe Childers investigated the protest.
Findings of Fact
The protest first alleged that the appointed trustee of Local Union 328 interfered with the right of the delegates and alternate delegate to attend the IBT convention in Las Vegas, Nevada. The protestors alleged that the local union refused to process the travel and hotel reservations. The protestors further alleged that Greg Nowak, the appointed trustee of Local Union 328, told delegate Frazier that none of the protestors would be attending the convention because of the trusteeship.
IBT General Counsel Bradley Raymond, responding to the protest by e-mail, stated that the local union was placed into trusteeship but that the delegates and alternate delegate had been informed that they would be permitted to attend the convention notwithstanding the trusteeship.
Trustee Nowak expressly denied to our investigator that he told any delegate or alternate delegate that he could not attend the convention. Nowak said he understood that plane tickets had been issued for delegate Frazier and alternate delegate Botwright, paid for by the local union, and that tickets had been issued for two spouses or others to attend with them, paid for by Frazier and Botwright. With respect to Nelson, Nowak stated that Nelson had been suspended for 60 days before the trusteeship was imposed. Nelson asked General President Hoffa to stay the suspension; the request was denied. Nelson then appealed the suspension to the IBT General Executive Board, where it remains pending.
Nowak stated that the local union was placed in trusteeship on April 25, 2006, and that shortly after that date Nelson indicated he would be requesting a withdrawal card. Nowak said he then sent a letter to Nelson dated May 4 that stated that Nowak had attempted to telephone Nelson to tell him that by going on withdrawal he would be ineligible to attend the convention; the letter stated further that if this information about withdrawal status caused Nelson to change his mind about pursuing withdrawal, he should notify Nowak immediately. By letter dated May 30, Nelson told Nowak that he would pay his dues to remain in good standing and that he wished to attend the convention as a delegate.
Gary Witlen, of the IBT Legal Department, wrote Nelson by overnight letter on June 8, 2006 stating the following:
It is my understanding that prior to the imposition of the Trusteeship, travel arrangements were made for you and the Local's other delegate and alternate delegate to fly to Las Vegas to attend the Convention. Other than the charges for the airfare, the Local has not located any files containing additional travel details. The Local is in the process of making room reservations, assuming that no such reservations had been made previously. If rooms had already been reserved, you are advised that those reservations will be honored and the Local will pay the costs associated therewith.
Nelson acknowledged receiving the Witlen letter. However, he maintained that the letter contained false information, stating that no travel arrangements had been made for him. He stated that the tickets for the other delegate and alternate delegate, as well as their family members, were being "held" by the local union and not delivered to Frazier and Botwright. He further maintained that no hotel reservations had been made.
At our request, Witlen interceded with Nowak. Nowak stated that Botwright and Frazier made their own airline reservations while they were in office at Local Union 328. No reservation was made for Nelson at that time. However, on or about Thursday, June 8, 2006, James Blanchard, assistant to Nowak as trustee at Local 328, personally made the hotel reservations for all three protestors and made an airline reservation for Nelson. However, those hotel reservations, as well as Nelson's airline reservation, were deficient in that Nelson was not given the full six nights and seven days as required by an advisory issued by our office; further, the hotel reservations had all three men checking in on different days, with one check-in date falling after the start of the convention.
Frazier told our investigator that he personally made the airline reservations for himself, Botwright, and their two family members traveling with them at their own expense. He said no reservation was made for Nelson at that time because Nelson was not sure whether his wife would be traveling with him. Soon thereafter, Nelson was suspended and the local union was placed in trusteeship.
After consultation with our investigator, trustee Nowak agreed to change the hotel reservations for all three men and to change Nelson's airline reservation. Documentation was received by our investigator that confirmed that each of the protestors and their traveling companions had reservations to depart Escanaba, Michigan on Saturday afternoon, June 24, arrive Las Vegas that afternoon or early evening, and arrive at Escanaba by return flight on Saturday afternoon, July 1. Although Bally's Hotel, the convention site, was unable to provide accommodations for all of the protestors on the weekend preceding the start of the convention, all parties had reservations at Bally's for each night the convention was in session. Accommodations for the weekend of June 24 and 25 were provided at the Flamingo Hotel, which is a short walk from the convention site at the Paris Hotel.
The airline tickets for Frazier and Botwright were sent by UPS overnight mail to Frazier and Botwright, as were their per diem expense checks for the days they were to be in Las Vegas. The airline ticket for Nelson was issued as an electronic ticket and the itinerary for the trip was sent by UPS overnight mail to Nelson, as was his per diem check. In addition, the local union agreed to send to each protestor proof of his dues payments so that he could establish his eligibility to vote at the convention.
As to the remaining allegations of the protest, Nelson told our investigator that the hate mail he had received was received approximately two and one-half weeks before the protest was filed; Nowak assaulted him on two occasions, in October, 2005 and in March, 2006; he was told by Richard Leebove, a high-ranking consultant to the Hoffa 2006 campaign, in January 2006 that Nowak and other officers were scared that Nelson would run against them for Joint Council positions in the fall election; and Frazier was told by a union steward that Nowak mentioned that he fired Frazier because he was loyal to Nelson.
Nelson told our investigators that it is his belief that trustee Nowak was holding personal items that belonged to Nelson, including a desk, a hutch, a computer desk, pictures, and other belongings in an effort to silence him politically. He has requested return of these items on two prior occasions in writing and has received no response. When pressed on what evidence he had that linked the retention of these items to silencing him politically, he sole response was that he could think of no other reason that might motivate the local union to do so.
Nowak told our investigator that he has no intention of holding Nelson's personal items and that Nelson is free to retrieve those items at any time by coming to the local union hall. Nelson held out some hope that he might be rehired by the local union; however, the letter from Witlen to Nelson, dated June 8, 2006, informed Nelson he would not be rehired.
Analysis
The local union must pay for the expenses of its duly elected delegates and those alternate delegates for whom it has elected to pay expenses to attend the IBT Convention. This includes transportation, lodging, per diem expenses, and lost time from work. The trustee has satisfied us that all of the arrangements have been made to pay for these expenses. Accordingly, we deem this portion of the protest to be RESOLVED.
Article XIII, Section 3 of the Rules provides that post-election protests shall be concerned with election day or post-election day conduct. Furthermore, Article XIII, Section 3(a)(3) of the Rules states that post-election protests must be filed "within two (2) working days of the date when the protestor becomes aware or reasonably should have become aware of the action protested, when involving alleged improper post-election threats, coercion, intimidation, acts of violence or retaliation or the exercise of rights protected by these Rules." Based on the foregoing Rule, the protesters' allegations with respect to hate mail, the two alleged assaults of Nelson by Nowak, the acts of intimidation resulting from Nowak's and other Joint Council 43 officers' alleged fear that Nelson would run against them, and the discharge of Frazier because he was loyal to Nelson, are deemed to be either pre-election conduct or not timely filed. Accordingly, with respect to these allegations, the protest is DENIED.
As to the protestor Nelson's allegation that the trustee is refusing to release his personal property in order to silence him politically, the protestor has failed to produce sufficient evidence of retaliatory intent. In particular, no nexus has been established between the political activities of protestor Nelson related to his position as elected delegate and the allegedly prohibited conduct of the trustee. Moreover, it appears that Nelson believed, at least until June 9, that he might be rehired by the local union upon the completion of his suspension on June 15; this fact suggests that he did not seek to retrieve his bulky personal items from the union hall until after he was advised that rehiring would not occur. Trustee Nowak has stated that Nelson is free to retrieve his personal items. Accordingly, with respect to this allegation, the protest is DENIED as no Rules violation has been stated or proven.
Finally, the protestor alleged that the IBT imposed the trusteeship upon Local Union 328 without conducting an investigation. This matter is outside our jurisdiction because it raises no issue with respect to exercise of rights under the Rules; we therefore decline to address it. Accordingly, with respect to this allegation, the protest is DENIED.
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
885 Third Avenue, Suite 1000
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 Office of the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, Suite 1400, N.W., Washington, D.C. 20006, 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
2006 ESD 317
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
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
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
William Nelson, Gordon Frazier & Neil Botwright
c/o William Nelson, Secretary-Treasurer
IBT Local Union 328
5700 Pine Street 0.25
Gladstone, MI 49837
William Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com