IN RE: BLAIR KENNY, Protestor
Protest Decision 2010 ESD 49
Issued: December 2, 2010
OES Case No. P-049-110510-NE
Blair Kenny, member of Local Union 118, 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 Local Union 118 expelled Norm Reinhart from membership for activity protected by the Rules.
Election Supervisor representative Deborah Schaaf investigated this protest.
Findings of Fact
Reinhart is retired from Wegman's Markets and is drawing a pension. In addition, he continues to work part-time as a Saturday driver for Wegman's and maintains his active membership in Local Union 118 through that employment.
Over several years, Reinhart has actively opposed the local union leadership on issues of union governance, including, according to him, a dues increase implemented some 6 years ago. He has repeatedly voiced his objections on these issues at union meetings over that span.
In August 2010, Local Union 118 sponsored 4 meetings to address changes proposed in the New York State Pension Fund and obtain members' approval of those changes. According to local union witnesses, the changes would affect only those members who had not yet retired; retirees who continued to work part-time, such as Reinhart, would not be affected by the changes. Nonetheless, notice of the meetings was sent to all participants in the pension system, Reinhart included. The notice did not distinguish between employees who were not yet receiving pensions or those such as Reinhart who continued to work part-time while receiving a pension. The notice stated that the meeting was "mandatory."
Reinhart attended the meeting held Sunday, August 15, in a meeting room at Rick's Prime Rib in Rochester, NY. Chris Toole, secretary-treasurer and business agent for the local union, saw Reinhart in the parking lot before the meeting as both were headed indoors. Toole asked Reinhart why he was there, as the proposed pension changes would not affect him or his pension. According to Toole, Reinhart replied that he got a notice that described the meeting as "mandatory." Toole explained that the proposed changes would not affect Reinhart and that he could not participate in the discussion or vote on the changes, but that he could still attend if he wished. Toole told our investigator that Reinhart assented to those ground rules and entered the building.
Inside, Steven Mazza, president and principal officer of the local union, saw Reinhart at the refreshment table getting a danish and coffee before the meeting commenced. Mazza did not know that the meeting notice had been sent to retirees, nor did he know of the conversation Toole and Reinhart had just had in the parking lot. Mazza asked Reinhart why he was there. Reinhart replied that he got the notice. Mazza stated that he shouldn't have, that the proposed changes did not apply to him, and that he didn't need to be at the meeting. Mazza and Reinhart agree that Reinhart did not tell Mazza that Toole had given him permission to attend the meeting if he did not participate in the discussion or vote on the changes. Instead, according to Mazza, Reinhart became sarcastic and belligerent and said he was staying. Mazza said he told Reinhart that he didn't want trouble, repeating that the meeting did not apply to him. Mazza asked Reinhart to leave the meeting. According to Mazza, Reinhart replied, "No, fuck you. You are going to have to make me leave, so bring it on and let's take this outside so I can kick your ass." Mazza replied, "No, fuck you," and then directed Toole and Mike Maynard to remove Reinhart from the meeting.
Mazza then turned away. Reinhart, angry at the exchange, told our investigator that he threw his danish at the wall and swore at Mazza. Gene DeLorme, vice president and business agent, physically restrained Reinhart. Toole then intervened, telling Reinhart that he would call the police if Reinhart did not calm down and leave. According to Toole, Reinhart said, "Go ahead." Toole told our investigator that the proprietor then called the police, and Reinhart left before the police arrived and before the meeting began. No police report was filed and no prosecution occurred.
The next day, August 16, Mazza preferred internal union charges against Reinhart under the IBT constitution and local union bylaws for disrupting the meeting and threatening Mazza. Reinhart filed internal union charges against Mazza on August 31 for denying his right to attend a meeting of the local union. In addition, Reinhart filed a charge against the local union with the NLRB alleging that, "since February 17, 2009," the local union restrained and coerced Reinhart in violation of his Section 7 rights "by refusing to allow him access to a union meeting." The charge did not allege that Reinhart's expulsion from the union meeting was motivated by any activity protected by the Rules.
After investigating the charge, the Regional Director for the NLRB dismissed it. The Regional Director found that the matter was a "purely intraunion dispute" that did not impact Reinhart's relationship with his employer or "impair a fundamental policy of the Act." Reinhart did not appeal the Regional Director's decision.
After adjournment of a September 15 hearing date, the internal union charges filed by Mazza against Reinhart and by Reinhart against Mazza were heard by a committee of the local union executive board on October 27, 2010. Protestor Kenny acted as Reinhart's representative at the hearing. Serving on the committee were Toole and Maynard, both of whom were witnesses to and took action at the August 15 meeting. Their service on the panel may have violated Article XIX, Section 1(a) of the IBT constitution, which states: "In no event shall any involved officer or member serve on a hearing panel … or participate in the decision making process of the trial body." Absent from the hearing minutes is any argument or evidence from Reinhart contending he was charged because he campaigned for Pope.
In separate letters signed by Toole dated November 1, 2010, the hearing committee dismissed Reinhart's charges against Mazza and sustained Mazza's charges against Reinhart. As penalty in the latter case, the hearing committee wrote the following:
Your membership with Local 118 and the International Brotherhood of Teamsters is hereby revoked immediately. You shall remain an employee with your current employer of Wegmans Food Markets. You shall retain your seniority in your present classification and shall remain eligible for representation on any issues arising from your employment with Wegmans.
Local 118 will not accept, nor request any future dues payments from you. You will be suspended from Local 118 effective November, 2010. You will no longer be eligible for any benefits from Local 118, be allowed to vote or participate in contract negotiations or to run for or hold Union office.
Reinhart appealed the local union's decision to the Joint Council on November 9 and requested that General President Hoffa stay the expulsion pending the outcome of the appeal. Hoffa granted the stay by letter dated November 16.
The protest here alleged that Reinhart was ejected from the August 15 meeting, subjected to internal union charges, and expelled from the union because he collected accreditation signatures for Sandy Pope, is a TDU member, and actively supported protestor Kenny's candidacy for delegate.
Pope announced her candidacy for General President on October 11, 2010. Reinhart did not solicit accreditation signatures for Pope before the date she announced. Nominations for Local Union 118's delegates and alternate delegates election are to take place January 5, 2011, with ballots mailed February 4 and counted February 25. Mazza and Toole denied knowledge that Reinhart had engaged in any activity protected by the Rules.
Reinhart told our investigator that he was expelled from union membership to prevent him from speaking out about union issues, especially the dues assessment, something Reinhart said he had been doing for a long time. When our investigator asked him directly whether he believed his support for Pope's candidacy was a factor, he replied, "That was part of it too."
Analysis
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. Zuckerman, 2010 ESD 2 (June 7, 2010); Gilmartin, P32 (January 5, 1996), aff'd, 95 EAM 75; Leal, P51 (October 3, 1995), aff'd, 95 EAM 30; and Wsol, P95 (September 20, 1995), aff'd, 95 EAM 17.
We find no evidence to establish that the local union retaliated against Reinhart for activity protected by the Rules and therefore DENY this protest. We find that the local union's action was motivated by the events of the August 15 union meeting, which occurred before Pope became a candidate and before Reinhart engaged in any activity in support of that candidacy. Although Reinhart solicited accreditation signatures for Pope after she became a candidate in October, we find that neither Mazza nor the hearing committee was aware of his activity, that Reinhart and Kenny did not raise the activity as a motivating factor at the October 27 hearing, and that the hearing committee took its action without regard to it.
Our finding of no Rules violation should not be construed as agreement that the penalty of expulsion is appropriate under the circumstances presented. Reinhart's recourse for what appears to us to be an unduly harsh penalty lies with his internal union appeal and not with us.
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 49
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
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
Previant Goldberg
155 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Blair Kenny
276 Ridgedale Circle
Rochester, NY 14616
bkenny1@rochester.rr.com
Norm Reinhart
55 Millrace Rd.
E. Rochester, NY 14445
(by UPS overnight)
Steven Mazza, President
Teamsters Local Union 118
130 Metro Park
Rochester, NY 14623
mazza118@rochester.rr.com
Christopher Toole, Secretary-Treasurer
Teamsters Local Union 118
130 Metro Park
Rochester, NY 14623
ctoole@teamsterslocal118.org
Deborah Schaaf
1118 Coddington Road
Ithaca, NY 14850
debschaaf33@gmail.com
David Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com