IN RE: FRED ZUCKERMAN, Protestor,
Protest Decision 2010 ESD 2
Issued: June 7, 2010
OES Case No. P-001-052810-NA
Fred Zuckerman, candidate for election to International office and current IBT national carhaul director, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that the IBT and General President Hoffa threatened, coerced, intimidated and/or retaliated against Zuckerman because of his candidacy.
Election Supervisor representative Jeffrey Ellison investigated this protest.
Findings of Fact
Zuckerman is principal officer of Local Union 89 and Joint Council 94 in Kentucky. He has served on various regional and national carhaul bargaining committees since 1994 and has been national carhaul director since 2005. In a letter dated May 25, 2010 addressed to General President Hoffa and General Secretary-Treasurer Keegel, he announced his candidacy for International office, viz.
Dear Sirs and Brothers,
As you know I have announced my intention to run for International Union Office at the 2011 IBT Convention pursuant to the 2011 IBT International Officer Election Rules. By way of this letter I announce that I will be a candidate for International Union Office.
Zuckerman emailed the letter to Meghan Wolff, an administrative assistant employed in the office of the General President after business hours on May 25; the earliest General President Hoffa likely would have seen or been advised of it is May 26.
The General President authorized issuance of a memo to Zuckerman, dated May 27, that stated the following:
Please be advised, I have appointed Kevin Moore, President, Teamsters Local Union 299 to be included in all National and Committee Meetings, Conference Calls, Employer Meetings, and all other meetings regarding the Carhaul Industry. Brother Moore can be notified of these matters at Teamsters Local Union 299 or on his cell …
Should you have any questions, please feel free to contact my office.
Moore is principal officer of Local Union 299 and an International Representative. His Detroit local union has 450 to 500 active members employed in the carhaul sector, the largest contingent of carhaul members in any single local union; Moore's local has an even larger number of carhaul members on layoff or otherwise inactive.
With the sharp downtown in auto sales over the past two years, carhaul has experienced dramatic reductions in membership and been compelled to give concessions under the National Master Automobile Transport Agreement. Some auto manufacturers have demonstrated the intention to shift away from unionized carhaul employers in an effort to reduce costs. The IBT, through the efforts of Zuckerman, International staff, and others, have responded to these circumstances with various initiatives to promote using skilled, reasonably compensated, unionized carhaul drivers on the road and has intervened directly with manufacturers to retain jobs. These efforts have born fruit but challenges remain.
For example, in 2007, Allied Automotive Group, the largest carhaul employer, obtained a reduction in wages of some 17% off NMATA rates. The IBT maintains that this wage concession was for a fixed duration and that wages were to "snap back" to NMATA scale at the end of May 2010. Early in that month, Allied sought and obtained a meeting with Zuckerman and the national bargaining committee concerning wages. The meeting was held May 20 at IBT headquarters in Washington, D.C. Zuckerman led a contingent of International and regional union officials for the IBT. General President Hoffa told us that, because of the importance of the Allied meeting and the sensitivity of the situation in carhaul nationally, he asked Willie Smith, his executive assistant, to attend the meeting as an additional observer. Smith was unable to attend, however, and President Hoffa requested that Smith ask Local Union 299's Moore to attend. Smith did so and Moore attended the meeting as part of the IBT's contingent.
One week later, President Hoffa issued the memo appointing Moore to be included in national carhaul meetings and related activities going forward. President Hoffa told us that he did not issue the appointment memo in response to Zuckerman's announcement of candidacy. Further, he stated that Zuckerman remains the national carhaul director with all the rights, responsibilities and duties of that position. Zuckerman's compensation as director is unaffected by the appointment of Moore, and Moore, an International Representative since 1999, has not been granted additional compensation because of the May 27 appointment. Finally, although the appointment memo states that Moore is to be included in all carhaul meetings, all witnesses agree that such meetings may proceed in Moore's absence if his schedule precludes attendance.
Zuckerman contends that the appointment of Moore is in response to Zuckerman's announcement of candidacy. In addition to the timing of the appointment, Zuckerman asserts that the IBT earlier this year cut costs in carhaul by compelling the retirement of the only International Representative assigned full-time to the division. The representative, Paul Houck, retired through a special early window that granted him retiree health benefits he would not otherwise merit until he had accrued additional years of service. The IBT did not replace Houck, citing budgetary restraints. Zuckerman claims that the IBT's appointment of Moore is inconsistent with its earlier claim of financial unwillingness to replace Houck. In response, the IBT states that the only financial impact of Moore's appointment is in the travel budget; as Moore is already an International Representative, the IBT will incur no additional salary expense as a consequence of the appointment.
Moore told our investigator that he repeatedly asked Zuckerman in the past year to include him in carhaul meetings because of his local union's large contingent of carhaul members. Moore said he made his requests by phone and email but that Zuckerman did not comply. Moore believes that President Hoffa made the May 27 appointment because Zuckerman had not responded to Moore's direct requests to Zuckerman. In response, Zuckerman denies that Moore called or emailed him about being included in carhaul meetings. Zuckerman stated that Moore is not a regional carhaul chairman (Earl Walker, principal officer of Local Union 614 in Pontiac, Michigan, President Hoffa's home local, is the regional chairman for the region that includes Moore's local union); further, Moore is not even a current member of the national carhaul bargaining committee. Under these circumstances, Zuckerman would not anticipate that Moore would request to be included in carhaul meetings and bargaining sessions, and he denied receiving any such requests. Our investigator asked Moore to produce the email messages he claimed to have sent to Zuckerman; nothing was produced.
Analysis
The Rules protect the right of eligible IBT members to run for International office. As the Election Officer has stated:
Since the Rules protect campaign activity as a personal right of members, the exercise of that right cannot be interfered with by labor organizations or employers, including the IBT as an employer.
Hoffa, P812 (August 16, 1996). Therefore, the IBT is "prohibited from using the electoral preferences or activities of its employees as factors in any employment-related decision." Pope, 2000 EAD 39 (October 17, 2000), aff'd, 00 EAM 11. Article VII, Section 12(g) of the Rules states this protection: "Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or any other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules is prohibited."
To prevail on a claim of retaliation, "the 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). The Election Supervisor will not find retaliation if he concludes that the union officer or entity would have taken the same action even in the absence of the protestor's protected conduct. Gilmartin, P32 (January 5, 1996), aff'd, 95 EAM 75. See Leal, P51 (October 3, 1995), aff'd, 95 EAM 30; Wsol, P95 (September 20, 1995), aff'd, 95 EAM 17.
Here, Zuckerman satisfies the first element of his retaliation claim because he engaged in activity protected by the Rules by announcing his candidacy for election to International office.
With respect to the second element - adverse employment action - we have previously held that discharge, removal from appointed position, and the transfer of membership from one representative to another can satisfy the adverse action element of a retaliation claim. Williams, 2001 EAD 152 (February 8, 2001); Thornsberry, 2001 EAD 172 (February 16, 2001); and Bundrant, 2005 ESD 19 (October 25, 2005), aff'd, 05 EAM 4 (November 15, 2005). Here, we find that Zuckerman has not suffered the adverse action necessary to make out a retaliation claim. The May 27 appointment of Moore to be included in all carhaul meetings does not constitute action adverse to Zuckerman. Zuckerman remains national carhaul director with the same rights, responsibilities and duties he had before Moore's appointment was announced. Further, Zuckerman's compensation and the terms and conditions of his IBT employment are unaffected by Moore's appointment. Moore has not assumed, or been delegated, any right to represent members previously delegated to Zuckerman's stewardship. Accordingly, we find that General President Hoffa's appointment of Moore to be included in all carhaul meetings does not constitute adverse action against Zuckerman.
Given our conclusion that Zuckerman has not suffered adverse action, we find it unnecessary to evaluate the third element of this retaliation case, i.e., whether the IBT would have taken the same action of appointing Moore in the absence of Zuckerman's candidacy for International office.Accordingly, we DENY the protest.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Supervisor in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1801 K Street, N.W., Suite421 L, 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
2010 ESD 2
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington,D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com