Protest Decisions

IN RE: VERNON GAMMON, Protestor.
Protest Decision 2011 ESD 100
Issued: February 6, 2011
OES Case No. P-072-011011-AT

Vernon Gammon, member, secretary-treasurer, and delegate candidate in Local Union 391, 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 president Claude Gray violated the Rules by retaliating against business agents and organizers for forming and supporting an opposition slate.

Election Supervisor representatives J. Griffin Morgan and Maureen Geraghty investigated this protest.

Findings of Fact

1. Introduction: The Local Union 391 Executive Board
Reassigns Certain Business Agents

Local Union 391 held its nominations meeting for the delegates and alternate delegates election on Saturday, January 8, 2011. The previous day, the local union's executive board met and approved President Gray's motion to: (1) remove business agent Chip Roth from his assignments at MV Transportation, UPS Greensboro, UPS High Point and UPS Winston-Salem and reassign him to represent public sector employees, including Raleigh police officers, North Carolina police officers, Chapel Hill police officers, State Capitol police officers, and school employees in New Hanover County, Durham County, Wake County, Forsyth County, Guilford County and Rockingham County; (2) reassign MV Transportation to business agent George Phillips and hire Al Jones, a UPS Greensboro shop steward, as assistant business agent to cover UPS Greensboro, UPS High Point and UPS Winston-Salem; and (3) reassign B/E Aerospace West Point from business agent Wayne Gibbs to George Phillips. Also at this meeting, Gray stated that he would be looking at cost-cutting measures in the coming weeks to ensure that the local union was operating in the black after hiring the new assistant business agent. Those potential cost-cutting measures were understood to include laying off organizers Rachel Wells and JoCarolyn Wilkins. The executive board approved Gray's request 4 votes to 3. Voting against the proposal were secretary-treasurer Vernon Gammon, trustee Rick Armstrong and trustee Karen Mathews. Vice president Steve Bishop, recording secretary George Phillips and trustee Joseph Gardner voted in favor of the motion. Gray cast the deciding vote.

Gray, Bishop, Phillips and Gardner are candidates in the delegates election running on the Gray/Bishop Experienced Team ("Gray/Bishop"). Gammon, Armstrong, Matthews and business agent Wayne Gibbs are candidates on the Gammon-McGaha Team 391 ("Gammon-McGaha"). Business agent Chip Roth is known to be supporting Gammon-McGaha; he announced in campaign literature distributed before the executive board meeting that he would not be a candidate in the delegates election.

Protester Gammon and members of Gammon-McGaha alleged that Gray's motivation for reassigning business agents Roth and Gibbs and considering the potential layoff of organizers Wells and Wilkins was to retaliate against those four individuals for opposing him and his slate in the delegates election. Gammon further alleged that the reassignments and potential layoffs were motivated by a political calculation that the personnel decisions would benefit Gray/Bishop and harm the Gammon-McGaha in the delegates election. Gray and members of Gray/Bishop denied the reassignment of business agents was retaliatory or politically motivated. To the contrary, they contended the reassignments were made to improve representation of local union members and to stave off a decline in membership. They argued that the layoff of organizers - which has not occurred - might be required in the future to stabilize union finances and is unrelated to the delegates election.

2. Background: Local Union 391's Financial Difficulties;
Claude Gray Replaces Retiring President Jack Cipriani

Local Union 391 is one of the largest local unions in the southeast United States. Prominent past presidents include RV Durham, who ran for IBT General President in 1991, and his successor, Jack Cipriani, who served as IBT East region vice president and director of the brewery and soft drink workers conference. Cipriani retired as local union president in May 2009, several months after his Fall 2008 re-election.

In the months before Cipriani retired, the local union experienced financial difficulty. On January 9, 2009, members of the executive board, business agents, organizers and staff voluntarily agreed to assist the union by taking a 5% reduction in salary effective February 2009. In March 2009, YRC, a major employer of Local Union 391 members, implemented an anticipated change of operations. Between the merger of Roadway and Yellow Freight and the change of operations, the local union lost approximately 500 freight members in the 24 months beginning December 2008. Over the same period, it lost an additional 50 members laid off from Allied Systems, and 120 jobs were lost when Varco Pruden closed in December 2008. This lost membership translated into lost dues income that approached $400,000 annually.

Organizing victories offset some of those losses. State Capitol police were added in April 2008, New Hanover County schools employees joined in December 2008, First Student employees came in in February 2009, and UPS Freight employees signed up in May 2009. The local union organized MV Transportation in September 2009, and added employees from the Raleigh and Chapel Hill police departments in November 2009. The dues income from these victories cut into the losses the local union experienced, but revenue was still down by more than $200,000 annually in December 2010 when compared with two years earlier.

The local union took action to weather this financial difficulty. In March 2009, the executive board authorized the local to borrow $190,000.00 from its benefit fund at 3.25% interest to purchase 11 vehicles for its staff. The union has repaid $66,044.88 and currently owes $123,756.14. In April 2009, the executive board approved a line of credit for $125,000.00 for reconstruction costs on a union hall that was damaged by a tornado, while the local fought with its insurance carrier regarding coverage. The union borrowed $60,000.00 from the credit line and currently owes $50,000.00.

Before Cipriani retired, business agent Chip Roth, with Cipriani's support, lobbied his fellow business agents and executive board members to be named the new local union president. Claude Gray, then serving as secretary-treasurer, also sought the position. Vernon Gammon, the most senior business agent not to hold a position on the executive board, lobbied to be named secretary-treasurer if Gray became president. The majority of the executive board and the business agents supported Gray.

Before the new local president was named, Cipriani and Gray reached an agreement concerning Chip Roth. Gammon and Roth assert that the agreement was that Gray would succeed Cipriani as local union president but would retire prior to the September 2011 officers and business agents election and support Roth as his successor. Gray asserts that the agreement was to continue to groom Roth as his possible successor.

At the May 8, 2009 executive board meeting, Cipriani formally announced his resignation as president of the local union, effective May 16, 2009. Cipriani then moved that the board appoint Gray to fill the vacancy as president for the unexpired term of office and, further, that the board appoint himself, Cipriani, as advisor to the board at a salary of $5,000 per year less than a business agent (approximately $67,000 per year after the 5% wage cut) plus expenses. The board unanimously approved the motion. Cipriani then moved that the board appoint Gammon to the secretary-treasurer position vacated by Gray. This motion too was approved unanimously. On May 16, 2009, Gray was installed as president and Gammon as secretary-treasurer. Cipriani worked as an advisor to the executive board until April 3, 2010.

3. 2009: Personnel and Salary Changes Under Gray's Leadership

The local union president customarily makes business agent assignments. Four weeks after his appointment as president, Gray informed the executive board that he had implemented new assignments for many of the business agents, changes he attributed to the new duties he and Gammon had taken on with their appointments. In July 2009, Gray reassigned executive assistant Stormy Fields to other duties within the union. Fields was Cipriani's executive assistant for many years, and Gray perceived that Fields would not implement his instructions without first checking with Cipriani. This reassignment resulted in a loud disagreement between Cipriani and Gray during work hours that was observed by several staff members of the local's staff.

In August 2009, the local union laid off two organizers, Moses Darden and Randy Conrad, because of the union's financial condition. The union continued to employ organizing director Steve Jones and organizers Rachel Wells and JoCarolyn Wilkins. Jones is primarily engaged in organizing and was responsible for organizing victories in 2010 at Alamo rental car and Red Cross. Neither employer is yet under contract. Wells and Wilkins assist Jones but are primarily responsible for servicing the local union's public sector members.

In September 2009, Local Union 391 ended the 5% reduction in salary for officers, business agents, organizers and staff. Around the same time, officers discussed whether the union needed to lay off a business agent. Opinion was split as to whether a layoff was necessary. If it was, some thought that Chip Roth should be laid off as the least senior business agent, while others said it should be Wayne Gibbs as the lowest vote getter in the 2008 officers and business agents election.

This discussion ended in November 2009 when business agent Donnie Brown died. Brown's major responsibility was representing members at UPS Greensboro, where he had previously worked. Given the local union's financial condition, the executive board decided not to replace Brown, also concluding that the lay-off of a business agent would not be necessary. Chip Roth, the union's newest business agent, volunteered for and was appointed by Gray to take on the business agent duties at UPS Greensboro.

On April 3, 2010, Cipriani retired from Local Union 391 and his employment as an advisor to the executive board ended. Effective the same day, he was hired as an independent consultant and advisor for the local union at a salary of $4,500.00 per month plus expenses.

4. 2010: Dissatisfaction With Gray's Leadership Among Certain
Local Union 391 Members, Business Agents and Officers

By July 2010, several business agents, executive board members and local union organizers were meeting to discuss their dissatisfaction with and concerns about Gray's performance as local union president. The first meeting took place at Cipriani's house; another occurred in August 2010 in Myrtle Beach, South Carolina during the Piedmont grievance panel hearings.

The August meeting was attended by most of the business agents, trustees and organizers, because Gray had sent the staff to the panel hearing to support business agent Wayne Gibbs in his election to be the union co-chair of the grievance panel. Gray was not present because he was attending the Teamster National Black Caucus conference with recording secretary George Phillips and trustee Joseph Garner.

According to Gammon and Roth, who participated in both meetings, much concern was expressed about Gray's ability to be the local union president. These concerns focused on their perception that Gray failed to attend meetings, was unprepared for contract negotiations or grievance hearings when he did attend, and was forgetful and might be having health problems that affected his ability to perform his job. Gammon stated that the decision reached at the August Myrtle Beach meeting was to address these concerns with Gray at the September 2010 executive board meeting.

Steve Bishop, local union vice president, was not present at the meeting at Cipriani's house but did attend the Myrtle Beach meeting. Bishop's view was that the individuals criticizing Gray were unable to provide specific and meaningful examples of Gray's supposed inability to perform the duties of local union president. Rather, Bishop believed the attacks against Gray were aimed at forming political opposition to Gray in the Fall 2011 officers election.

A week after the August meeting, Gammon and Bishop told recording secretary Phillips about the meeting and the complaints made by business agents and organizers. Phillips stated that he was upset that senior members of the executive board met with business agents and organizers to discuss Gray without informing Gray. Gammon, Bishop and Phillips agreed they would meet with Gray on September 7, 2010, the day after Labor Day.

The four met on September 7. Gray was told of the criticism being directed at him. Phillips stated that the plan of action coming out of the meeting was to have the disgruntled business agents and organizers meet with Gray.

Between September 7 and September 9, the Office of the Election Supervisor received written notification from several business agents and organizers that they intended to run for delegate but not on the Claude Gray team. Several of the individuals who sent the notification stated that they did so in order to protect their jobs and viewed such notification as analogous to identifying themselves as in-plant organizers during a union organizing campaign.

The executive board met on Friday, September 10, for two hours starting at 2:30 p.m.[1] At the end of the meeting, Gray addressed the board. He stated that he heard people wanted him to resign as local union president and that they would not run on the same slate with him. Gray then left the meeting.

The remaining members stayed and talked among themselves for another three hours. Many different opinions were voiced during this session. Some attempted to focus on how to help Gray be a better local union president and keep the executive board united on one political ticket. Others thought the better course was to persuade Gray either to resign or agree not to run in the September 2011 officers election. At the conclusion of the meeting, Gray's supporters (Bishop, Phillips and trustee Gardner) said they would speak with Gray about the concerns people had but that they would not recommend that he resign or agree not to run in the upcoming officer election.

Phillips called Gray and reported on the lengthy discussions that followed the board meeting. Gammon told our investigator that Gray then called Gammon at home and spoke of the need to put the team back together. Gammon and Gray agreed to meet at 8:00 a.m. the next day, ahead of the 10:00 a.m. membership meeting. Both Gray and Gammon reported that their Saturday morning meeting ended with their agreement to unite. Gammon stated he went to each member of his team and said, "We need to give Claude a chance to put this back together." Gray reported that he met that morning with several individuals, including Wayne Gibbs, Karen Mathews and Rachel Wells and he "thought everything was pulled together."

Local Union 391 conducts a shop steward seminar every other year in Myrtle Beach. In 2010, the shop steward seminar started on Thursday, September 30 and ended Sunday, October 3. The night before the seminar began, most of the local union's business agents and organizers, including Gray and Gammon, met to discuss the slate for the delegates election. At the conclusion of the meeting, Gray had the impression that they had a unified slate. However, by seminar's end four days later, the two groups again had splintered, both blaming the other for the split.

The political split widened after October 12, 2010, when Gray notified Cipriani that he was terminating Cipriani's consultant contract. Public reaction to the decision came at the Raleigh membership meeting on October 16 that was attended by Elaine Marshall, Democratic candidate for U.S. Senate, and several other local politicians. During that meeting, Chip Roth stated that Cipriani's contract had been terminated by Gray at a time when Cipriani was an important progressive political figure in North Carolina. Roth publicly asked Gray to reconsider his decision to terminate Cipriani.

The membership meeting held the next week in Eden, NC was attended by Democratic congressman Brad Miller and other local politicians. After the politicians left the hall, Gammon read aloud his proposal that Gray table the decision to cancel Cipriani's contract and permit the executive board to make the decision about it. At this point the meeting became boisterous, with members in long lines to speak at the floor mike, mostly to complain about the termination of Cipriani's contract. Cipriani was present and was given permission to speak, but was instructed to address the chair of the meeting and not the crowd. Cipriani became upset; he left the floor and mounted the stage. He later returned to the floor mike and was allowed to finish speaking.[2]

5. November 2010: UPS and MV Transportation Members
Petition Gray to Remove Roth as Business Agent

At the November 13 Greensboro membership meeting, UPS Greensboro employee and shop steward Charlie Burr attempted to present president Gray with petitions signed by members at UPS Greensboro calling for the removal of Chip Roth as their business agent. President Gray refused to accept the petitions at the membership meeting. However, so many members from UPS Greensboro sought to address the meeting about their concerns that Gray requested they hold their comments until the end of the membership meeting and he would then immediately convene a special meeting for UPS members. At the UPS special meeting that immediately followed[3], Gray deflected the petitions by pledging to closely monitor Roth's grievance-handling and contract-servicing at UPS. Roth promised to handle grievances timely and protect members' rights. Because the petition was not accepted at the general or special membership meeting, it was delivered to Local Union 391 on November 15, 2010. The petitions contained 288 signatures requesting Roth's immediate removal as business agent at UPS Greensboro.

On November 17, Gray sent Roth a memo requesting that Roth: (1) compile a list of grievances and complaints that were outstanding when he assumed responsibility for UPS Greensboro and UPS High Point; (2) describe the nature of the complaints and their disposition; (3) provide a list of grievances submitted by members after Roth assumed responsibility for UPS Greensboro and UPS High Point; and (4) describe the nature of the complaints and their disposition. Prior to receiving the November 17 memo, Roth had worked with his administrative assistant, Stormy Fields, to compile a database of all grievances he had inherited when he assumed responsibility for UPS Greensboro and all the grievances that were filed thereafter. Roth said the database tracked each grievance from the time it was logged in until it was resolved. In response to the November 17 memo, Roth informed Gray that he had a database on the union's computer that contained the answers to Gray's questions. Roth said Gray never asked him for the data base and Roth does not think Gray ever reviewed it. Gray said he did briefly review the database but it did not contain the information he requested in his memo.

Also on November 17, Local Union 391 received a petition signed by members at MV Transportation asking that Roth resign as their business agent. The petition was signed by 29 of the approximately 40 members of the bargaining unit.

The next day, Gray sent Roth a memo requesting that he schedule a meeting with all stewards at UPS Greensboro, Winston-Salem and High Point on Saturday morning prior to the December 11, 2010 Greensboro membership meeting. Five days later, on November 22, Gray wrote to all stewards at UPS Greensboro, Winston-Salem and High Point requesting they attend a meeting at 8:30 a.m. on December 11 to discuss the issues raised at the November 13 UPS special meeting. On December 6, Gray wrote Roth requesting that he schedule a craft meeting with members employed at MV Transportation to discuss their concerns. He requested that the meeting be scheduled for 5:00 p.m. on Saturday, December 11.

A UPS stewards meeting was held before the membership meeting on December 11. The general tenor of the complaints against Roth was that he did not timely address grievances, did not communicate with or involve the grievant in the resolution of the grievance, and did not involve shop stewards in the resolution of local level hearings.

A craft meeting with MV Transportation employees was held the same day. Similar to UPS, these members complained that Roth excluded them from the grievance process and did not zealously represent their interests.

Two days later, on Monday, December 13, Gray sent Roth a memo scheduling a December 21 meeting at MV Transportation with employees regarding the complaints received about his representation. On December 16, Gray sent Roth another memo instructing him "to get notification letters out to all the members that you will be investigating their grievances at your local level meeting scheduled at UPS and MV Transportation in January 2011. This practice will allow all affected members an opportunity to be in attendance when their grievances are discussed. It will also protect the local against failure to represent." Roth stated that he called and visited each member who had a pending grievance rather than write them as Gray instructed. In addition, Roth said he worked with the stewards on those grievances. Ross stated that he thought calling and visiting with the members was a better way to proceed then writing a letter to them.

6. December 2010: Members at B/E Aerospace Tell Gray of
Dissatisfaction With Business Agent Wayne Gibbs

B/E Aerospace in Winston-Salem has two facilities. The larger facility, Fairchild, employs approximately 235 members; West Point, the small facility, has 120. Fairchild has more jobs at a higher pay grade. The current contract, approved by only four votes, changed the job bidding procedure. Previously, jobs were bid across both plants, but the new contract sets job bids by plant, making it difficult for employees at West Point to bid on higher rated jobs at Fairchild. Many employees at West Point, unhappy with the current contract, have blamed business agent Wayne Gibbs for it.

On December 9, 2010, Gray met with 10 to 15 members from B/E Aerospace West Point, including a few stewards. Gibbs was not invited to the meeting. Gibbs said that Gray told him the members did not want Gibbs in the meeting. Gray then asked Gibbs to schedule a special meeting with employees at West Point.

Gray stated that he was scheduled to meet with only one West Point member and expected to meet only with that member. When the member showed up with several other people, and still others arrived soon thereafter, Gray said he told the members that Gibbs should be at the meeting as well; according to Gray, the members said no.

Frank Mays, a shop steward at West Point, told our investigator he did not initiate the December 9 meeting with Gray, but he and others decided to attend when Roger Conrad, another member, said it was scheduled. Mays said that members at the meeting were extremely upset and agitated, complaining that Gibbs rarely showed up at the facility. They also complained that Gibbs lost grievances they believed could easily be won and was not even advancing grievances to the Piedmont grievance council. They reported he was unprepared and did not fight hard enough for members. They complained that he had a short temper and did not respect them. They also complained about bidding rights between West Point and Fairchild. They asked Gray to remove Gibbs and give them another business agent. The members stated that if they did not get a new business agent, they would stop paying dues. Gray listened, and at one point early in the meeting stated, "With all due respect to Wayne, I think we need to have him come into this meeting." Some members flat out refused stating they did not want to speak openly in front of him because they did not trust him. At the end of the meeting, Gray stated he appreciated the input, he would look into the issues, but he would not promise a change in business agent.

A second meeting with B/E Aerospace West Point employees was held on December 18. This time Gray, Gammon, local union vice president Bishop, Gibbs, and trustee and B/E Aerospace chief steward Karen Mathews attended. Gibbs reported that the meeting lasted about 2 hours; he said the members were not happy and were venting their frustration. Many of the complaints focused on the May 2009 contract and the quality of Gibbs' representation. Gibbs reminded members that Gray and Cipriani were at the bargaining table for the May 2009 contract. Gibbs said he responded to employee complaints as best he could. He stated that Gray did not criticize him during the meeting but also did not openly support him. Gibbs stated that the December 18 meeting was the worst meeting he had ever attended during his years as a business agent, as the members were very critical of him.

Shop steward Mays said the issues discussed at the December 18 meeting were the same ones discussed at the December 9 meeting. He said it was an ugly meeting and people were shouting, overheated and very upset. Members expressed great dissatisfaction with the poor level of representation they felt they were getting from Gibbs. Members again demanded that Gibbs be removed.

On Tuesday, December 21, Gibbs, Gammon and Tony Scott visited the members at West Point again to follow up on the concerns raised at the December 18 meeting. On the same day, Gibbs wrote a memo to Gray requesting approval to add an additional steward at West Point. Gray did not think an additional steward was needed and did not respond to Gibbs' memo. Gibbs stated that since December 21, he not returned to West Point because he was on vacation and because the employees did not want him out there.

A petition, dated December 21, was circulated among the West Point members. It complained of the lack of leadership and representation provided by Gibbs, called for a committee to be convened to investigate Gibbs, and demanded his immediate removal as a business agent for B/E Aerospace West Point. The petition was signed by 67 of the approximately 120 union members at B/E Aerospace West Point and was delivered to Local Union 391 on January 6, 2011.

Mays said that Gray did not encourage the uprising against Gibbs. Mays said he had been warning Gibbs for over a year that there was widespread discontent and Gibbs ignored him and it spun out of control. Mays said Bill Fraser, a vocal and active critic, wrote the petition and it was carefully and secretly circulated among members. According to Mays, Fraser started the petition shortly after the craft meeting because he was impatient and wanted something done immediately. Mays stated Fraser is a pusher and once his mind is made up, he just gets things done.

7. January 2011: On Gray's Motion the Local Union 391
Executive Board Votes to Reassign Business Agents Roth and Gibbs

On January 7, 2011, Gray made his motion to the executive board to hire Al Jones as an assistant business agent representing UPS Greensboro, High Point, and Winston-Salem and to reassign Chip Roth from UPS to public sector bargaining units. In addition, Gray's motion removed Roth from MV Transportation employees and Gibbs from B/E Aerospace West Point employees; both were replaced by business agent George Phillips.

During his interviews with our investigator, Gammon acknowledged that Gray and the local union had a problem at UPS Greensboro. Gammon was not opposed to replacing Roth at UPS Greensboro with another business agent. Gammon stated that Roth had failed to build the necessary relationship was shop stewards. "I agreed that with the environment at UPS it was the right thing to do to move Chip out." However, Gammon opposed hiring Al Jones as a new business agent if it required laying off the local's two organizers. "I told Claude I would support hiring Al Jones but not if it was linked to laying off the organizers." Gammon thought that another business agent, such as Tony Scott, should be transferred to UPS Greensboro.

Gammon did not believe that Gibbs' transfer from B/E Aerospace West Point was justified. He thought Gray orchestrated the hostility to Gibbs there, but he had no proof to support his belief. At the January 7 Executive Board meeting Gammon volunteered to replace Gibbs at West Point.

Trustee Rick Armstrong stated that every executive board meeting addresses how to cut costs. "It is an ongoing problem." Armstrong stated that in such meetings before January 7, 2011, Gray had discussed the possibility of laying off JoCarolyn Wilkins because the local union could not afford her.

A week or two before the January 8, 2011 nominations meeting, Armstrong learned from organizing director Steve Jones that Chip Roth had decided not to run as a candidate in the delegate election. Jones told Armstrong that Roth thought it might be damaging to the ticket because he had become a political liability. Armstrong stated that he was not strongly opposed to Roth being transferred, but he also did not strongly favor it because Gray had told the UPS Greensboro members in December 2010 that he would give Roth 60 to 90 days to improve and he gave him only 30. Armstrong stated that his real opposition was to hiring Al Jones if it meant terminating the organizers. Armstrong proposed that existing business agents, such as Gammon, Scott and Phillips, be reassigned to cover Roth's former assignments rather than hire someone new.

Armstrong stated that he was not familiar with the situation involving Wayne Gibbs and B/E Aerospace West Point, therefore he did not have an opinion regarding Gray's proposal to remove Gibbs from B/E Aerospace West Point. It was Armstrong's recollection of the January 7 executive board meeting that neither Gammon nor anyone else was opposed the reassignment of Gibbs from West Point.

Further at the January 7 executive board meeting, Armstrong proposed specific cuts the local union could make without terminating the organizers. Armstrong stated that he recommended another 5% wage cut to last for six months, similar to what the union had done in 2009. He also recommended the union terminate its contract with lobbyist Ron Black[4]. Armstrong stated Black provided a valuable service but he supported eliminating a contractor before laying off employees. Armstrong, a police officer, believes that the union's future growth is in the public sector. He opposed laying off organizers Wells and Wilkins because although labeled organizers they serve as business agents to the public sector employees.

Trustee Karen Mathews told our investigator she thought Gray abused his power at the January 7 executive board meeting because he cast the tie-breaking vote to hire Jones. Matthews stated that she thought Roth was doing a good job reducing the number of outstanding grievances at UPS Greensboro and that it was local union policy not to recognize petitions filed against business agents by disgruntled members. However, she stated that it was a good decision to pull Roth out of UPS because they needed someone there with more UPS experience. Matthews thought that Bishop could have helped Roth at UPS, but she did not know if Roth had requested Bishop's help. Matthew stated that she, Gammon and Armstrong were not totally against hiring Jones, but they were opposed to linking his hiring with terminating Wilkins and Wells. She recalled that they suggested transferring Bob Brown to UPS Greensboro and having Tony Scott work in the eastern part of the state. Currently Brown represents UPS and freight in eastern North Carolina and Scott represents freight in and around Greensboro. They also suggested assigning Scott to cover UPS Greensboro with Bishop helping him.

Matthews said that Gray told the board he was transferring Gibbs out of B/E Aerospace West Point because the members there were unhappy. Matthews thought the transfer was unnecessary because the members were unhappy with the current contract and changing business agents will not change the contract. Like Gammon, Matthews suspected that Gray encouraged the dissatisfaction of members, but she had no evidence to support her suspicion.

Matthew stated that she did not know about the problems at MV Transportation and had no opinion regarding Roth being removed from there.

Roth maintained he did excellent work at UPS Greensboro and that he was proud of it. He claimed the attacks against him had become personal, were not based on the merit of his work, and originated with a few disgruntled UPS feeder drivers who were able to influence others. Because of these personal attacks, Roth agreed it was in the best interest of the local union to remove him from UPS. He stated: "There is a sizable enough portion of dissatisfied workers that it is not in the local's interest for me to be at UPS." He elaborated, "I do not think it is in the members' interest for me to continue as the business agent at UPS Greensboro. There is now a credibility issue at UPS Greensboro." Roth said he anticipates that Jones will be a competent business agent at UPS.

As noted, the decision of the executive board, on Gray's motion, was to hire Al Jones as assistant business agent to service UPS Greensboro, Winston-Salem, High Point, to reassign business agent Roth exclusively to the public sector, to remove B/E Aerospace West Point from business agent Wayne Gibbs' responsibility, and to assign business agent George Phillips to B/E Aerospace West Point and MV Transportation. No decision was made on whether to retain organizers Wells and Wilkins. Likewise, no decision was made on Armstrong's proposals to implement a salary reduction or to terminate the services of Ron Black.

Gray stated he believed the local union would lose members at B/E Aerospace, MV Transportation and UPS if he did not make changes in the assignment of business agents. He stated that he believed the UPS Greensboro members would be more receptive to a shop steward they knew well and respected than to another business agent. He assigned Phillips to MV Transportation and B/E Aerospace West Point because Phillips had the smallest workload of all the business agents and because his experience was with industrial plants and with an employer, First Student, that was very similar to MV Transportation.

Members of the executive board supporting Gammon-McGaha met with the business agents and organizers supporting that slate to inform them of the decisions that had been made. Gammon-McGaha made a political decision to rally support for Wells and Wilkins at the membership meeting the next day. That night they encouraged public sector employees to attend the membership meeting. They held a strategy meeting with Cipriani and the public sector employees the next morning prior to the membership meeting. At the membership meeting[5], trustee Rick Armstrong told the members that Claude Gray was considering terminating Rachel Wells and JoCarolyn Wilkins.

In the week after the executive board meeting and the membership and nominations meetings, Wells asked Gray when he was going to get rid of her. According to Wells, Gray responded "that as long as we stay in the black, you will have a job."

Analysis

Article VII, Section 12(g) of the Rules prohibits retaliation or threat of retaliation by a local union against any union member, officer or employee for exercising their political rights in a local union delegates and alternate delegates election.

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.

Roth, Gibbs, Wells and Wilkins satisfy the first element of the retaliation claims because they actively engaged in activity protected by the Rules by opposing the Gray/Bishop Experienced Team and by announcing their own candidacy or support for the Gammon-McGaha Team 391 slate in the local union delegates election.

Turning to the second element - adverse employment action - we have previously held that discharge, removal from appointed position, and 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). 

In this case, neither Roth nor Gibbs was terminated from his position as business agent and neither saw a change in salary or benefits. Further, although each experienced a transfer of membership from his responsibility, Roth's reassignment gave him access to 2,500 public sector employees he did not previously represent, while Gibbs lost responsibility for only approximately 120 employees but continued to represent the remainder of his units. These facts present a close question of whether the reassignments constituted adverse employment action. However, we find it unnecessary to decide this issue, given the analysis that follows.

On the critical third element of the retaliation analysis, the protestor has not demonstrated - and we have not found - that protected activity was a motivating factor in the decision to reassign Roth or Gibbs. In contrast, protestor Gammon and trustees Armstrong and Matthews agree that the decision to remove Roth from his business agent responsibilities at UPS was justified. Even Roth agrees that it was not in the members' best interest for him to remain as the business agent at UPS. With respect to Roth's remaining assignment in the private sector, the 40 members at MV Transportation, they had voiced similar complaints about Roth's representation. We find these complaints about Roth's performance were the motivation for the decision to reassign him to other responsibilities.

Regarding Gibbs' reassignment from B/E Aerospace West Point, protestor Gammon and trustee Matthews believe that Gray engineered the members' dissatisfaction with Gibbs and that without Gray's involvement there would have been no petition filed or hostile special meeting on December 18, 2010. The suspicion that the dissatisfaction West Point employees expressed against Gibbs was fueled by Gray appears to originate with the December 9 meeting Gray held with them that Gibbs did not attend. However, shop steward Frank Mays' account of the December 9 meeting corroborates Gray's statement that he had expected to meet with only one person and, when a group showed up he attempted to include Gibbs in the meeting. The December 9 meeting, as described by May, was similar in tone to the December 18 meeting, as described by Gibbs. We find it implausible that Gray could foment opposition to Gibbs among members with whom he had no working relationship. The protestor has presented no proof - and we found none - that the decision to remove Gibbs from his duties at West Point was motivated by his alignment with Team 391 and not by the concerns raised by the membership.

Rachel Wells and JoCarolyn Wilkins have not suffered adverse employment action. However, a threat made by a local union president to get rid of employees of a local union based on their political opposition has the purpose or effect of inhibiting the exercise of protected activity. Such a threat is anti-democratic because it suppresses political opposition.  Aloise, 2010 ESD 22 (August 27, 2010).

In this case, it is not disputed that Gray discussed the potential need to terminate Wells and Wilkins to cut costs. The local union has at least a two year history of struggling financially. It has lost a substantial number of members that pay at the highest dues rate and has offset that loss only in partby organizing new members, many of whom pay dues at a much lower rate. The local union responded to the financial shortfall in a variety of ways: officers, business agents, organizers and staff voluntarily took a pay cut; two organizers were laid off; the union borrowed money, for which it is still in debt; and the union decided not to replace a business agent who died. When deciding whether to hire a new business agent under these circumstances, it is rational to discuss whether other employees will need to be laid off in order to make the budget. The protestor has made no showing - and we have found none - that Gray's purpose in discussing the potential need to lay off Wilkins and Wells was to inhibit them from exercising their political rights. Likewise, we have found no indication that Gray intended or believed his discussion in the executive board meeting would discourage either organizer from being a candidate in the delegate election or from supporting the candidates they choose.

Rather, it was members of the board from Gammon-McGaha that informed Wells and Wilkins of the layoff discussion. Gray did not threaten them with layoff. Likewise, Gammon-McGaha members and supporters decided to inform the membership of Local Union 391 of the discussion that took place in the executive board meeting and to use that information to apply political pressure to Gray by encouraging public sector employees to attend the membership meeting and to speak in support of Wilkins and Wells. When asked directly by Wells about her employment, Gray linked her employment to the finances of the union and not to her political stance. We find no facts to demonstrate that Gray threatened to terminate Wells and Wilkins because of their opposition to his candidacy in the delegates election.

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, 1801 K Street, N.W., Suite 421 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
        2011 ESD 100

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 Hall 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
1555 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53213
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

Claude Gray, President
Teamsters Local Union 391
P.O. Box 35405
Greensboro, NC 27425
cgray65663@aol.com

Vernon Gammon, Secretary-Treasurer
Teamsters Local Union 391
3910 Teamsters Place
Colfax, NC 27235
vgammon@teamsterslocal391.org

Mike Webb
1200 Oak Grove Church Road
Wake Forest, NC 27587
d2h2w2@yahoo.com

J. Griffin Morgan
Elliot Pishko Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.com

Maureen Geraghty
426 Old Salem Road
Winston-Salem, NC 27101
mg@geraghtylawfirm.com

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com