IN RE: TIM BUBAN, DARRYL CONNELL, AND JEFF DEXTER, Protestors.
Protest Decision 2006 ESD 398
Issued: December 28, 2006
OES Case No. P 06 070-011706-MW
Tim Buban, member and principal officer of Local Union 200, Darryl Connell, member and president of Local Union 200, and Jeff Dexter, former local union contract administrator, 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 Fred Gegare, IBT vice president at large and Joint Council 39 president, engaged in a sustained pattern of retaliatory conduct against the protestors and Local Union 200 because of the protestors' political support for Tom Leedham as candidate for IBT General President.
Election Supervisor representatives Joe Childers and Jeffrey Ellison investigated the protest.
Findings of Fact
The protest, signed by Buban, Connell and Dexter, alleged the following:
We, members in good standing of Local Union 200, are filing this protest against the IBT and Fred Gegare and the IBT, for retaliating against Local Union 200 and us because of our political support for the Tom Leedham slate. One of us, Tim Buban, is a candidate for Central Region Vice President on the Tom Leedham Strong Contracts Good Pensions Slate.
On January 12, 2006, we discovered that the IBT and Gegare had actively intervened in and taken over our negotiation, administration, and jurisdiction over a construction trades contract, attempting to make Joint Council 39 the union party to Local 200's contract.
Local Union 200, based in Milwaukee, Wisconsin, is the third largest IBT local union in Joint Council 39, which is comprised of all Teamsters local unions in Wisconsin. Fred Gegare is IBT vice president at large and principal officer both of the joint council and Local Union 75 in Green Bay. At the time the protest was filed, he was an accredited candidate for reelection to the at-large vice president position on the Hoffa slate. He subsequently was nominated for that position and tallied sufficient votes in the general election to win re-election, subject to final certification by the Election Supervisor.
At the time the protest was filed, Buban was an accredited candidate for IBT Central Region vice president on the Leedham slate. He was also a candidate for delegate to the IBT convention. After the protest was filed, Buban won his delegate election and attended the IBT convention, where he was nominated for Central Region vice president. However, he was defeated for Central Region vice president, subject to final certification.
Buban and Gegare have been political adversaries for several years. In addition to his other duties, Gegare is a trustee for the Central States Pension Fund. Buban has heavily criticized the management of the fund in general, and Gegare's decisions there in particular.
Buban has been a TDU member since 1991 when he actively supported the candidacy of Ron Carey for IBT General President. He was treasurer of the Milwaukee chapter of TDU during the period 1992-1994. He has been a prominent spokesman for TDU and written articles for TDU's Convoy Dispatch on several occasions. Two of Local Union 200's contract administrators, Dan Campbell and Joe Fahey, were top officials of TDU who were recruited to come to Milwaukee by Buban to work for Local Union 200 after he assumed the position of principal officer. Gegare has heavily criticized Buban and TDU for positions they have taken on several issues, including the administration and management of the Central States Pension Fund.
Connell was a delegate candidate on Buban's slate and also a frequent critic of Gegare. Buban and Connell opposed Gegare's candidacy for International office and supported the candidacy of Buban and the other members of the Leedham slate.
Buban, Connell and Dexter allege that the IBT and Gegare attempted to strip Local Union 200 of jurisdiction over a construction trade contract important to its members in retaliation for the protected activity of Buban and Connell of supporting Leedham slate members and opposing Gegare and other Hoffa slate members.
The construction trade contract covered approximately 200 Teamsters jobs at the construction site for the Wisconsin Energy Corporation's Oak Creek Power Plant in Oak Creek, Wisconsin. The overall construction contract is covered by a Project Labor Agreement (PLA) between Bechtel Corporation and a building trades council comprised of several unions in Greater Milwaukee. Local Union 200 is the only IBT local that signed the PLA. Pursuant to the PLA, Bechtel was required to conclude a collective bargaining agreement with Local Union 200 covering wages, hours, and terms and conditions of employment for Teamsters jobs at the work site.
The protestors allege that while they were attempting to negotiate the collective bargaining agreement (CBA) with Bechtel, the IBT was having behind-the-scenes discussions directly with Bechtel without the knowledge of Local 200 officials. The protestors allege that Mark Hermann, chairman of the Building Trades committee within Joint Council 39 and a Gegare appointee, participated in a meeting with IBT International representatives and Bechtel negotiators held in a Boston, Massachusetts in summer 2005 concerning the CBA for the Oak Creek Power Plant. However, no one from Local 200 was informed of the meeting or invited to attend, and the protestors allege that this meeting was part of an effort to wrest jurisdiction over the Teamsters jobs at Oak Creek from Local Union 200 and place it elsewhere.
Investigation showed that for more than a year before the Boston meeting, Jeff Dexter, Local Union 200's contract administrator, had several bargaining sessions with Bechtel concerning the Oak Creek project. The project was initially scheduled to commence in late 2004. However, it was delayed by court challenges to its certificate of need for nearly a year. The Wisconsin Supreme Court made the final decision in favor of the project on June 28, 2005, and construction began three days later on July 1. As a result of this delay, Bechtel and Local Union 200 did not expect that Teamsters would be employed on the project until early 2006.
Although negotiations commenced informally in 2004, the delay in the project's start lowered the urgency of concluding a CBA. When Dexter proposed that Bechtel sign Local Union 200's "area wide agreement," Bechtel declined even though, according to the protestors, it had signed CBA's with every other union signatory to the PLA. With the area-wide CBA apparently a non-starter, negotiations between Bechtel and Local Union 200 came to near stand-still until Spring 2005, when the IBT's Construction Trades Division informed Local Union 200 that Bechtel was willing to sign a different agreement, known as the state-wide Heavy/Highway agreement. Dexter questioned the wisdom of permitting Bechtel to sign the Heavy/Highway CBA, but negotiations with Bechtel appeared headed toward impasse.
In July 2005, Local Union 200 acceded to the IBT's suggestion that Bechtel be permitted to sign the state-wide Heavy/Highway agreement. However, when it was discussed at the bargaining table, Bechtel refused to sign that agreement as well. The protestors alleged that Bechtel's unwilling to sign the Heavy/Highway was the result of "meddling" by the IBT. However, the protestors presented no evidence to support this allegation, and our investigation found none.
Hermann, Gegare's appointed chair of the joint council's building trades committee, supplied the Heavy/Highway as an alternative to Local Union 200's area wide agreement, but Bechtel's refusal to sign continued the impasse. Hermann was directed at the Boston meeting to settle the impasse between Bechtel and Local Union 200 and get a contract, but investigation showed that Hermann did little in the months following that meeting to do so. During the same time, Local Union 200 was making no progress in negotiating an agreement with Bechtel. Richard Stern, director of the IBT's Building Material and Construction Trade Division, admitted that even though the purpose of the Boston meeting had been to assure that members of Local Union 200 got the work at Oak Creek, neither he nor Chuck Gagnon, an IBT construction division official, spoke with any Local Union 200 officials after that meeting.
Teamsters work was scheduled to begin at the Oak Creek Power Plant construction site in January 2006. However, as there still was no signed CBA with Bechtel, Bechtel was in a position to assign Teamsters work to members of another union with which Bechtel already had a signed CBA. IBT officials Stern and Gagnon told our investigator that Bechtel called and alerted Gagnon that Teamsters work might have to be performed by another union, the Operating Engineers, unless an agreement could be worked out with the union. This warning left Gagnon with the impression that Operating Engineers had already done work that should have been performed by Teamsters. Gagnon told our investigator that he had been alerted by Bechtel nearly 2 years earlier that the project would involve hauling millions of cubic yards of dirt, work that should be done by Teamsters members.
In early January 2006, the IBT's Stern and Gagnon were concerned that Teamsters work was being performed by members of another union. While discussing what action to take at IBT headquarters in Washington, D.C. on January 4, they told our investigator that Gegare stopped by to say hello on his way to a meeting in the building. Stern and Gagnon reported that they immediately asked Gegare what he was going to do about the problem with Bechtel to assure that Teamsters work was performed by Teamsters. They warned Gegare that the IBT was going to lose that work if prompt action was not taken. Stern reported that it was his duty to notify the President of the Joint Council for Wisconsin, who was also an International Vice President, what was going on in relation to this project. Stern and Gagnon stated that upon telling Gegare about the dilemma, Gegare requested that Stern put something in writing. Stern did so. When Gegare left IBT headquarters that day, Stern handed him a letter dated January 4 that asserted that Teamsters members should have been working at Oak Creek since July 1, 2005 and that they had lost perhaps one-third of the available work because of the failure to obtain a CBA before the project began.
The January 4, 2006 letter started by informing Gegare that "Operating Engineers are performing Teamsters work ... in Oak Creek, Wisconsin. The letter stated further that Bechtel had always respected IBT jurisdiction in the past and that Local Union 200 would be the first local union in Stern's 22 years of experience to cede jurisdiction to another union under a Bechtel project. The letter concluded, "I recommend Joint Council 39 negotiate an agreement signed by you and the Joint Council supply the drivers." IBT representatives were forwarded copies of the January 4 letter. It was not, however, sent to any official of Local Union 200.
Upon his return to Wisconsin, Gegare wrote Hermann on January 9, 2006, instructing him to convene and chair negotiations between the joint council and Bechtel concerning Oak Creek. He also instructed Hermann to make sure that representatives of Local Union 200 "and any other Local Union that is involved in the State of Wisconsin" were at the bargaining table during negotiations. However, Gegare stressed that Hermann chair the negotiations. Gegare forwarded copies of his January 9 letter to Hermann to 6 IBT local unions in Wisconsin, including Local Union 200. He also enclosed a copy of Stern's January 4 letter.
The protestors allege that the January 9 letter was proof that Gegare was meddling in Local Union 200's jurisdiction and attempting to encourage other locals to "horn in" and get jobs that belonged to members of Local Union 200. Hermann explained to our investigator that many large construction jobs are too large to be manned entirely by the members of 1 local union; in such cases, other IBT local unions are called upon to supply extra drivers.
Hermann then wrote to Buban on January 12, asking that Buban arrange to provide him with all previous negotiation files. Hermann also requested that the local union officials responsible for negotiating with Bechtel contact him to discuss the negotiations and to arrange the logistics of the continuing negotiations. Hermann enclosed a copy of Gegare's January 9 letter, which had already been sent to Local Union 200 by Gegare. After receiving Hermann's letter, Jeff Dexter wrote directly to Gegare on January 19, protesting the involvement by Gegare and Hermann and stating that Bechtel would perceive the intervention as a waiver by Local Union 200 of its rights under the area wide agreement, which Dexter claimed provided superior terms to the state-wide Heavy/Highway agreement. The letter also stated that Local Union 200 refused to authorize Gegare to negotiate on its behalf with Bechtel.
In the meantime, on January 12, 2006, Darryl Connell, President of Local Union 200, went to the Oak Creek job site to investigate the assignment of Teamsters jobs to Operating Engineers. He learned that Operating Engineers were first assigned work that should have been performed by Teamsters on January 9, 2006. Investigation showed that Operating Engineers performed Teamsters work from January 9 to January 13, 2006. Upon learning this fact, Local Union 200 filed a grievance under the PLA for the project. Beginning January 16, 2006, Teamsters were employed to perform Teamsters work (i.e., the driving of wheeled vehicles at the site), even though no contract had yet been signed. On January 26, 2006, Bechtel and Local Union 200 officials signed the Local Union 200 area wide agreement, with an important addendum, that concluded the matter.
With respect to the allegation of retaliation, Gegare maintained that he was unaware of the Oak Creek power plant project or its promise of hundreds of Teamsters jobs before January 4, 2006, when Stern told him about it. However, Herrmann told our investigator that the project was a "high profile" project in Wisconsin from its earliest announcement. He said there was much excitement among Teamsters about the number of union jobs that would be provided by the project. Furthermore, Hermann stated that the construction committee within the Joint Council, which he chaired, heard numerous reports about the project from its inception, in 2003 and through and after court approval of the project in 2005. He then reported on the committee meetings, including the Bechtel project, at each Joint Council executive board meeting immediately following the committee meeting. Gegare chaired the Joint Council executive board meetings.
Our investigator interviewed Bechtel labor relations manager Greg Glynn and project manager Dave Ross at the Oak Creek site. Ross stated that Bechtel was not involved with the "cleaning and grubbing" aspect of the project, the first earth-moving at the construction site after construction began in early July 2005. Hoffman Construction was the subcontractor for that phase. According to Ross, Hoffman traditionally employs Operating Engineers members to operate its heavy equipment. Included in the equipment used by Hoffman are state-of-the-art "belly dump" trucks. Hoffman's belly dump trucks were not licensed for use on the road and were classified as heavy equipment to be operated by Operating Engineers rather than Teamsters. According to Ross, the first work classified as Teamster work under the PLA and Bechtel=s employment occurred in January 2006.
Because there was no CBA in place with Local Union 200, Bechtel used Operating Engineers members on Teamsters work for one week in January 2006. Beginning January 16, 2006, Bechtel began using Teamsters largely as the result of the efforts of Lyle Ballisteri, president of the Milwaukee Building Trades Council. Through the combination of Ballisteri's assistance and Local Union 200's grievance under the PLA, Bechtel agreed to give the work to Teamsters before a CBA was signed.
Ross told our investigator that Bechtel had been frustrated in negotiations with Local Union 200 for over a year largely because the local union's negotiator had little experience negotiating construction agreements. The "area wide" agreement presented that Local Union 200 presented to Bechtel had been largely pieced together by Dexter from various freight agreements used in Illinois. Some counties in Illinois were in fact mentioned in the proposed Oak Creek contract, evidence of sloppy cutting and pasting from other agreements unrelated to Wisconsin-based jobs. The freight agreements from which the terms were pulled by Dexter were, according to Ross, totally inapplicable to the construction industry. Ross identified seniority and vacation provisions as objectionable, principally because construction jobs are of comparatively brief duration and such rights impose work rules that present problems for management. Ross stated that Bechtel did not want to set a bad precedent by signing the agreement. Ross described the negotiations with Local 200 as an "agonizing process."
Bechtel's Glynn told our investigator that he started to negotiate the CBA with Local Union 200 in 2003 or 2004. Glynn is in Bechtel's head of labor relations for the Oak Creek project. Glynn stated that a requirement of the PLA was to be a signatory to the collective bargaining agreements for the unions involved. Ballistreri asked Glynn to meet with the Teamsters and he was presented with the area wide agreement by Dexter, Connell and another official of Local 200. He immediately recognized that there were problems with the agreement, primarily related to seniority. A major problem was that the agreement presented to Bechtel, pieced together by Dexter, had not been signed by any other employer and was not a collectively bargained agreement.
Almost immediately after filing the protest, the protestors added an allegation that Gegare committed a second act of retaliation with his conduct concerning a Spancrete CBA. Because of the heightened scrutiny we apply to allegations of retaliation, we investigated this matter as well.
According to the protestors, Gegare refused to approve a tentative agreement between Local Union and WBC Corporation (referred to as "Spancrete") before a December 31, 2005 deadline. The deadline was important because contribution rates to the Central States Fund were scheduled to rise for contracts concluded on and after January 1, 2006. Any contract in place before January 1 would be governed by the existing contribution rates. Any contract that took effect January 1, 2006 or later would be subject to contribution rates 7% higher than 2005's rates. The protestors asserted that Gegare was aware of the importance of the December 31 deadline because he was knew from his own local union that fund contribution rates were going up for contracts effective after January 1, 2006. The protestors further asserted that Spancrete's economic offer assumed that the contract would be approved in 2005. If that deadline was missed and the new contributions rates applied, the company intended to deduct the higher contribution rates from wages, essentially meaning that a missed deadline would cost Local Union 200's members a pay raise.
Investigation showed that tentative CBAs had to be approved by the joint council before they could take effect. The purpose of this procedure was to insure state-wide uniformity in economics and terms and conditions of employment. To accomplish joint council approval, the normal procedure was that the contract had to be submitted to by the chair of the appropriate committee within the joint council. For Spancrete, a member of the construction trades, the joint council committee chair was Hermann. However, without explanation, Hermann told the protestors that Gegare insisted on reviewing the contract himself.
Local Union 200's negotiators concluded a tentative contract with Spancrete in late December 2005, ahead of the December 31 deadline. When they were informed by Hermann that Gegare insisted on reviewing the contract, Local Union 200 representatives forwarded the proposed contract to Gegare, who received it before December 31. However, although Gegare ultimately approved the contract, he did not do so until January 10, 2006.
Anticipating that Gegare's review might run past the December 31 deadline, Local Union 200 officials submitted the tentative contract to ratification by the affected membership before December 31. They recommended ratification but stated that, even if ratified, the contract would not become effective if Gegare did not approve it. Gegare's approval of the contract included approval of the contract's effective date, which was before the date that the increase in the contributions rate became effective.
Gegare maintained to our investigator that Local Union 200 waited until the "11th hour" to seek his approval of the contract and then expected him to drop everything to proof the contract. He stated that his local union (Local Union 75) was faced with the same deadline concerning Spancrete, and he was handling that matter when he was requested to drop what he was doing to review the Local Union 200 contract. He admitted that he knew about the problem with the added 7% contribution to the Central States fund if not ratified before the end of 2005 because several local unions were faced with the same dilemma. However, he denied that he asked to review the contract or that he did so in his capacity as chairman of Joint Council 39. Rather, he maintained that because his local was involved in negotiations with the same company, the chairman of the construction division committee, Mark Herrman, asked Local Union 200's representative to run the provisions of that contract by Gegare in order to promote uniformity in the various local unions' dealings with the company. Local Union 75 did not ratify a contract with Spancrete until April 2006, several months after the deadline. As a result, the 7% increase took effect at Local Union 75.
Mark Herrmann confirmed that he spoke with Frank Ardellini from Local Union 200 about the Spancrete contract and asked him to contact Local Union 301 at Waukegan, Illinois, and Gegare at Local Union 75, both of which had contracts with Spancrete. Local Union 301 had completed its negotiations with the company, and Herrmann was generally aware of the contract's provisions. Local Union 75, Gegare's local union, was still negotiating its contract and Herrmann wanted the provisions of all three to be substantially similar. Herrmann stated that his general practice is to go over changes to a contract with the business agent from a local union over the phone and to give his approval to the changes. However, when several local unions are involved in simultaneous negotiations with the same company, they are generally instructed to talk to each other in order to present a united front with the company. Herrmann stated that such was his intention in referring Ardellini to Gegare. He denied that the referral was for the purpose of obtaining joint council approval for the Local Union 200 contract.
Gegare acknowledged that he was upset when he learned that Local 200 had ratified the contract before he reviewed the contract. However, he denied taking any retaliatory action against Local Union 200 for doing so.
The protestors presented evidence of Gegare's motive for retaliating against them and Local Union 200. They asserted the following.
On September 12, 2005, Gegare met with protestor Dexter and Local Union 200 business agent Chris Hooser. Dexter and Hooser were attending a Freight Committee grievance panel meeting in Rosemont, Illinois. According to the protestors, while at the meeting, Walt Lytle, an announced candidate for Central Region Vice-President on the Hoffa 2006 slate, solicited campaign contributions from the two. Dexter and Hooser responded that they were not interested in supporting the Hoffa slate and complained to Lytle that Gegare was meddling in their local union's affairs. Lytle responded by arranging a meeting between the two Local Union 200 officials and Gegare for later that day in the hotel lobby bar, supposedly for the purpose of "clearing the air" about alleged joint council meddling.
Lytle told our investigator that he solicited campaign contributions from Dexter and Hooser both before the September 12, 2005 Rosemont meeting and while attending that meeting. According to Lytle, Dexter and Hooser told him they supported him and Hoffa but that they would have to check with their employers at Local Union 200 to see who they were supporting. They also complained to Lytle that Gegare had been meddling in Local Union 200's affairs. Lytle responded by offering to set up a meeting with Gegare for later that evening. He then reported the conversation to Gegare (including their purported statement that they were Hoffa supporters). Gegare agreed to meet Dexter and Hooser later that evening. Lytle denies speaking with Gegare about soliciting campaign contributions from Dexter and Hooser.
Dexter and Hooser reported that they spoke with Gegare in the hotel lobby bar for approximately 45 minutes about why they were not interested in supporting his campaign. After approximately 15 minutes, Gegare reportedly told the two that "matters could be worked out" if they would give him $10,000 for his campaign. Dexter and Hooser reported to our investigator that Gegare seemed to be fixated on Buban and Connell, and repeatedly stated that if those two did not quit "bad-mouthing" Gegare, they would "pay" and be "sorry." According to Dexter and Hooser, Gegare made it clear that he was a powerful man, and he referred to Buban and Connell as those "f-cking TDU Kool-Aid drinkers." According to Hooser and Dexter, this conversation occurred in the hotel lobby bar, not in the hotel's sports bar.
Finally, according to the protestors, Gegare allegedly stated that if Buban and Connell did not stop talking about him and trying to embarrass him, "they will pay - just like that TDU broad Maria." Dexter and Hooser took the comment about "Maria" to refer to Maria Martinez, a member of the TDU steering committee and member of the Leedham slate in 2001. Martinez was principal officer of Local Union 556, which allegedly lost a decertification election with its largest employer, Tyson Foods, after General President Hoffa appointed Gegare to be his personal representative to Local Union 556. Gegare then allegedly conducted an anti-Martinez campaign, which the employer seized upon to win the decertification election. Local Union 556 subsequently was abolished as an IBT local union.
Dexter and Hooser stated that they did not take Gegare seriously at the time because he tends to ramble and to make vague threats. Furthermore, they told our investigator that at the time, no one knew for certain that there would be an election of International officers. At the time of the Rosemont meeting, Hoffa was running for re-election without opposition. Leedham did not declare his candidacy until October 31, 2005.
To investigate this matter thoroughly, our investigator spoke with the participants in the Rosemont discussion several times. Since the first interview of Dexter, he has left Local Union 200 on less than amicable terms with principal officer Buban. Dexter no longer considers himself a Teamster, having officially taken a withdrawal card at the end of May 2006. In an interview with our investigator conducted after he left Local Union 200, Dexter stated that he has had problems with the local union over his health insurance, which was promised for six months and which he alleged was cancelled by the local union effective April 1, 2006. He now claims he is faced with extensive medical bills for his daughter's medical care, which he thought was covered under his IBT health plan. He stated that he does not want anything else to do with Teamster politics since he saw first-hand the political problems between the joint council and Local Union 200, and then experienced internal political problems at Local Union 200 which led to his departure. Nevertheless, Dexter did not withdraw any previous statement with respect to the September 12 Rosemont meeting with Gegare. He reaffirmed that Gegare asked the 2 Local 200 officials for $10,000 and made comments that Buban and Connell would pay if they did not get in line with Gegare.
Gegare told our investigator that Buban and Connell make up false charges against him and bad-mouth him all the time and that the Rosemont allegations typify this practice. He denied making any statement to Dexter and Hooser in Rosemont, Illinois in mid-September that Buban and Connell would "pay" or be "sorry" if they do not get in line with him. He categorically denied asking Dexter and Hooser for any campaign contribution. In further response to this allegation, Gegare stated he knew the limit on personal contributions was $2,000, so it would not be logical for him to have asked supporters of his known political opponents for $10,000. He suggested that Dexter and Hooser asked for the meeting with him, which was arranged through Lytle, because they wanted to "bitch" about Buban. He claimed that Dexter and Hooser pleaded with him to persuade Tom Millonzi not to run against Buban for the principal officer position in the 2006 officer election at Local Union 200. Gegare stated that he told them he would not do so, that they should talk to Millonzi directly. Gegare told our investigator that the conversation ended at approximately 8:00 p.m. on September 12, and Hooser and Dexter left the hotel around 9:00 p.m.
Gegare stated that the Dexter and Hooser told him that Buban is a "loose cannon" and they do not want to be "painted with the same brush." Gegare further stated that Dexter and Hooser drank a large volume of beer during the meeting. As proof, Gegare presented a credit card slip from a bar at the Rosemont hotel, showing that 30 beers (29 Miller Lite and 1 Bud Light) were purchased. Gegare's handwriting appears on the bottom of the charge receipt, indicating that the expense was for a meeting attended by Gegare, Dexter and Hooser. We do not credit Gegare's claim that the charge receipt is for the meeting the 3 men held on September 12. Dexter and Hooser stated that the meeting occurred in the hotel lobby bar, yet the receipt is for a purchase in Maxie's Sports Bar, another establishment within the same hotel. Further, all 3 men stated that the meeting took place during the evening hours of September 12, yet the cash-out time on the receipt is 4:50 p.m.
According to Dexter, the 3 men may have drunk 3 beers each in the short time they were together, but certainly did not consume 30 beers, as Gegare contended. According to Dexter and Hooser, the meeting with Gegare occurred after the conclusion of the day's meetings, after 5:00 p.m. Gegare reported to our investigators that the meeting occurred around supper and that the meeting ended about one hour before Dexter and Hooser departed the hotel around 9:00 p.m. Lytle told our investigator that the meeting occurred in the evening, but he was not sure whether it was before or after he and his wife left the hotel for dinner. Our investigator obtained a copy of the agenda for the day's union-related sessions at Rosemont on September 12, 2005. That agenda indicated that a general session started at 4:00 p.m. Lytle told our investigator that he chaired that meeting and that while he does not remember how long the meeting lasted, those "GAC" meetings generally last between one-half hour and one hour. He stated that the meeting between Gegare, Hooser and Dexter took place after the conclusion of the GAC meeting.
We conclude that the thirty beers paid for by Gegare were consumed in the sports bar (not the lobby bar) by persons we could not identify, and that the receipt relates to a gathering that occurred prior to Gegare's meeting with Dexter and Hooser in the hotel lobby bar. We were not able to determine who was at the other gathering, how many persons it involved, or how many (if any) of the 30 beers Gegare bought he drank himself.
Our investigation also gathered and considered evidence on several other instances of alleged mistreatment of Buban, Connell or Local Union 200 by Gegare. These included the post-election challenge at Joint Council 39 to Buban and Connell's 2003 election as officers of Local Union 200, the joint council's order that the local union officer election be re-run, and Buban and Connell's victory in the re-run election; the alleged exclusion of representatives of Local Union 200 from various joint council committees; the joint council's employment as organizers of members of Local Union 200 who were politically opposed to Buban and Connell and the subsequent "interference" by those organizers in the organizing activities of Local Union 200; and the difficulty Buban-appointee Joe Fahey had in obtaining joint council approval of a "white paper" contract for a recycling employer. The protestors presented this evidence as proof of political animus by Gegare. We do not detail the evidence here because it does not relate directly to the allegations of retaliation with respect to the Oak Creek and Spancrete matters under consideration.
Local Union 200 conducted its delegate and alternate delegate election in February 2006. The slate headed by Buban and Connell won all positions for delegate and alternate delegate.
Analysis
Article VII, Section 12(g) of the Rules prohibits "[r]etaliation or threat of retaliation … by … any member of the IBT … against a Union member … for exercising any right guaranteed by this or any other Article of the Rules." This provision gives the protestors the right to participate in campaign activity, to support the candidates they choose, and to oppose any candidate, free from any threat of retaliation against them or their union constituents. Ostrach, 2000 EAD 57 (December 6, 2000), aff'd, 01 EAM 15 (January 19, 2001).
To establish retaliation, 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. Cooper, 2005 ESD 8 (September 2, 2005).
Two acts of retaliation are alleged here: 1) Gegare's intervention with respect to the Bechtel CBA negotiations; and 2) his delay in approving the Spancrete contract.
We find that Buban and Connell satisfy the first element of retaliation - protected activity - without difficulty. Buban in particular was an outspoken supporter of TDU and the Leedham slate (indeed, he was a member of the Leedham slate) and a frequent and severe critic of Gegare's leadership, particularly with respect to pension issues. Connell, as Buban's second in the local union, espoused many of the same positions that Buban advanced. Accordingly, we conclude without hesitation that the evidence shows substantial protected activity on the part of Buban and Connell.
We find, however, that the second element of a retaliation case has not been established. In particular, we cannot conclude that Gegare took adverse action against Buban, Connell, or Local Union 200. We do not find that Gegare (or for that matter the IBT) engaged in any activity with respect to Oak Creek contract negotiations to interfere with, impede, or undermine Local Union 200's effort to obtain a contract with Bechtel. Although members of another union performed Teamsters work briefly, they did so for only 4 days and, important to this case, such out-of-jurisdiction work did not appear to result from anything Gegare or the IBT did or failed to do. Moreover, Gegare's delay in approving the Spancrete contract did not result in any adverse action against or impact upon Buban, Connell, or the membership of Local Union 200.
We also find that the third element of retaliation has not been established. We explain the basis for this conclusion in some detail.
This protest was filed in January 2006, and the allegations tied events close in time to the protest to a bar meeting that had occurred almost 4 months earlier. By the time of the protest, candidates aligned with Tim Leedham had received pre-convention accreditation, and political alignments for the International Officer campaign were taking shape. In September 2005, however, Leedham and others later associated with him were not even candidates and, as Dexter and Hooser told our investigators, when asked to contribute to Lytle's campaign they wanted to first find out who their local leadership supported.
Weighing all the accounts, we find that Gegare met with Dexter and Hooser on September 12, 2005; that the meeting took place in the lobby bar after 5:00 p.m.; that Gegare told Dexter and Hooser that he opposed Buban and Connell because of their association with TDU; and that the language Gegare used was, in substance as Dexter stated. The bar receipt provides no support for Gegare because it comes from a bar and reflects a quantity of beer consumption that is completely at odds with all witness accounts of those matters. Dexter and Hooser told Lytle either that they were Hoffa supporters or were not aligned as of September 2005, so Gegare (advised by Lytle) could have asked them for financial support: Gegare's explanation that he would not have requested support from members known to support his opponents in the International Officer election is not credible in light of Lytle's and Dexter's accounts. At the time he was interviewed for the protest, Gegare may well have projected Dexter and Hooser's later political position back in time to the September 2005 meeting.
With all that, however, Gegare's September 2005 statements do not establish a link between Buban and Connell's political positions in the union and Gegare's conduct months later in connection with the Bechtel and Spancrete matters. The statements are evidence that Gegare stood opposed politically to Buban and Connell, but that fact is well-known and, on the record here, are not threats of retaliation. Retaliation requires evidence of a palpable threat of actual harm. Here, we conclude that Gegare's remarks fall short of this Rules threshold for two reasons. First, Dexter and Hooser, the persons who heard the statements and could evaluate every nuance of their delivery, did not take Gegare seriously. No protest was filed in response to Gegare's remarks, suggesting that those to whom Gegare's remarks were communicated did not regard them as actionable threats. If they had seriously thought Gegare was threatening retaliation in September 2005, the time to protest was then and not four months later. Second, the circumstances of the Bechtel and Spancrete issues are fully and logically explained by facts unrelated to Gegare's political animosity towards Buban and Connell and, as noted, no adverse action actually occurred.
Gegare occupies a position of power and if that authority is abused, what would otherwise be words of political opposition can become evidence linking abuse to a retaliatory motive. Here, had Gegare committed adverse action against Buban, Connell, or any segment of Local Union 200, his statements at the September 2005 Rosemont meeting could provide proof corroborating the adverse action as retaliation for Buban and Connell's protected right to express their own political views within the union. Given the particular circumstances of the statements, the 4-month gap between the statements and any alleged retaliation, and the absence of actual retaliation, that link is missing in this case.
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
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 398
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
Tim Buban
4220 S. Katherin Drive
New Berlin, WI 53151
Darryl Connell
S15 W371714 Willow Springs Drive
Dousman, WI 53118
Jeff Dexter
501 Dennis Avenue
Bradley, IL
jcdexter@comcast.net
Fred Gegare
IBT Local Union 75
1546 Main Street
Green Bay, WI 54302
Frederick Perillo
1555 N. RiverCenter Drive, Suite 202
Milwaukee, WI 53212
fp@previant.com
Joe Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Bill Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
ellisonesq@aol.com