IN RE: THOMAS BOOTH, Protestor.
Protest Decision 2006 ESD 347
Issued: September 8, 2006
OES Case No. P-06-323-082506-FW
(See also Election Appeals Master decision 06 EAM 71)
Thomas Booth, a member of Local Union 896, 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 alleged that he was replaced as chief shop steward in retaliation for his delegate candidacy.
Election Supervisor representative Michael D. Four investigated this protest.
Findings of Fact
Booth ran as an independent candidate for delegate in the Local Union 896's delegate and alternate delegate election, held March 24, 2006. The Rene Medrano slate won the election. Medrano is the local union's secretary-treasurer. Two months later, on May 25, Medrano wrote Booth to advise that he was being replaced as chief shop steward by action of the executive board. Booth contends that he would not have been removed as chief shop steward had he not run for delegate.
Booth filed this protest August 25, 2006, 3 months after he was removed from his position.
The only evidence Booth presented to support his claim of retaliation was a statement he claimed Medrano made sometime in 2004 to the effect of "you may want to think about running for delegate and what will happen to you." Medrano has denied making such a statement.
Analysis
Article XIII, Section 2(b) of the Rules requires that protests "must be filed within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or such protests shall be waived."
Precedent establishes that the protest time limit is a prudential restriction rather than a jurisdictional requirement. Ruscigno, P144 (October 4, 1995), aff'd, 95 EAM 25 (October 18, 1995). Accordingly, we may, in the exercise of discretion, waive the time limit if circumstances warrant that we do so.
In Sole, P95 (September 20, 1995), the Election Officer considered the merits of a protest that was untimely filed because of heightened concern over the subject matter of retaliation. However, some reasonable explanation must be presented for the delay in filing. The short time limit the Rules provide for lodging protests is intended to settle alleged violations quickly. Here, Booth has offered no justification for his 3-month delay in filing this protest. Accordingly, we DENY the protest as untimely filed.
Were we to consider the protest on its merits, we would deny it on that basis as well. Article VII, Section 11(g) prohibits "[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 the Rules.
To establish a violation of either of these provisions, 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.
The evidence Booth presented on the third prong of the test is contradicted by Medrano, is remote in time to the date of the alleged adverse action, and is not supported by any other proof of a retaliatory motive.
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 Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, 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 347
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
Thomas M. Booth
22115 Michale Street
West Hills, CA 91304
Rene Medrano, Secretary-Treasurer
IBT Local Union 896
3303 Wilshire Blvd., Suite 300
Los Angeles, CA 90010
Jack Cipriani
President, Local 391
3100 Sandy Ridge Road
Colfax, NC 27235
Joint Council 42 Executive Board
818 South Oak Park Rd.
Covina, CA 91724
Michael D. Four
Schwartz, Steinsapir, Dohrmann & Sommers, LLP
6300 Wilshire Blvd., Suite 2000
Los Angeles, CA 90048-5202
Christine M. Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
cmm@wmblaw.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com