IN RE: JOHN PHILLIPENAS and MARK DEVILBISS, Protestors.
Protest Decision 2011 ESD 121
Issued: February 21, 2011
OES Case No. P-084-011811-GP & P-088-011911-GP
John Phillipenas, secretary-treasurer of Local Union 631 and delegate candidate, filed a pre-election protest in Case Number P-084-011811-GP 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 Mark Devilbiss retaliated against him and his slate for their candidacies by filing internal union charges against them. Devilbiss filed Case Number P-088-011911-GP against Phillipenas, alleging that Phillipenas' protest was retaliation for Devilbiss' candidacy; the protest alleged further that Phillipenas used the local union fax to file his protest.
These protests were consolidated for investigation and decision. Election Supervisor representative Bruce Boyens investigated them.
Findings of Fact
Phillipenas is a candidate for delegate on the Empowerment slate. Devilbiss was nominated for delegate on the Hoffa 631 Delegate slate at the nominations meeting held January 6, 2011 but was subsequently found ineligible for nomination. Eligibility of Treadwell et al, 2011 ESD (February 7, 2011).
Internal struggle for control of Local Union 631 has been ongoing. A trusteeship hearing was held December 19, 2010 to determine whether caused exists for trusteeship of the local union. That matter remains pending.
On or about January 14, 2011, Devilbiss filed local union executive board charges against Phillipenas, alleging that he had failed over an extended period to bond individuals responsible for handling funds and property of the local union. Phillipenas responded by filing the protest in Case Number P-084-011811-GP, alleging that Devilbiss' internal union charges were in retaliation for Phillipenas' candidacy in the delegates election. Devilbiss responded to Phillipenas' protest with his own protest, alleging that Phillipenas' protest was filed to retaliate against him for the internal union charges he filed. Devilbiss's protest also claimed that Phillipenas filed his protest using the union fax machine.
Analysis
Article VII, Section 12(g) of the Rules prohibit retaliation for activity protected by the Rules. Further, Article XIII, Section 1 permits any member to file a protest alleging noncompliance with the Rules, "free from any direct or indirect retaliation or threat of retaliation by any Union officer, member, candidate or independent committee, or by any other person or entity for such filing."
No evidence was presented that Devilbiss' internal union charges against Phillipenas were motivated by Phillipenas' candidacy or other activity protected by the Rules. Accordingly, we DENY Phillipenas' protest for lack of evidence.
A member who files a protest is protected by the Rules and may not be retaliated against because of that filing. However, a responsive protest likewise is protected and does not constitute retaliation in the context of the Rules, as it is an allegation only and does not impair any substantial right of membership, candidacy, or employment. Further, given the protection accorded protest activity, the use of union fax equipment to transmit a protest generally does not violate the Rules. Reyes, 2000 EAD 28 (September 27, 2000) (use of union fax machine to file protest no violation because it does not constitute support for a candidate or campaigning under the Rules); Koch, 2006 ESD 169 (April 3, 2006) (no violation where protest written on union-paid time and faxed from union fax machine). Accordingly, we DENY Devilbiss' protest as well.
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 121
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
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.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
Mark Devilbiss
916 Cascade Light Avenue
North Las Vegas, NV 89031
Devilbiss.family@live.com
John Phillipenas, Secretary-Treasurer
Teamsters Local Union 631
700 North Lamb Blvd.
Las Vegas, NV 89110
johnp@teamsters631.com
Kevin Hardison
7345 Rietz Can
Las Vegas, NV 89131
kevinandheather@embarqmail.com
Mike McElmury
25 Louisiana Ave., N.W.
Washington, D.C. 20001
mikemac@yahoo.com
Bruce Boyens
1326 S. Elizabeth St.
Denver, CO 80210
boyensb@aol.com
Mary Ann Campbell
13859 State Road E.
DeSoto, MO 63020
scdennis@aol.com
Maria Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org
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