Protest Decisions

Brian Lytle, member of Local Union 414, filed two protests.  The first, a pre-election protest filed January 4, 2011 pursuant to Article XIII, Section 2 of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election (“Rules”), alleged that he was retaliated against by his employer, Local Union 414, because of his declared candidacy for delegate in the upcoming delegates election.  The second, a post-election protest filed March 3, 2011 pursuant to Article XIII, Section 3 of the Rules, alleged that he was discharged from his business agent position on February 28, the date ballots were counted in the delegates election, because he headed a slate that ran against the slate led by Local Union 414 principal officer Dennis Arnold.

            Election Supervisor representative Joe Childers investigated these protests.  They were consolidated for decision.

Findings of Fact

            Protestor Brian Lytle is the son of the late Walt Lytle, who served as secretary-treasurer of Local Union 414 for 25 years and IBT central region vice president for 13 years.  Walt Lytle received a cancer diagnosis in October 2009 while serving as local union principal officer and IBT vice president; he died in February 2011. 

            Brian Lytle began his Teamster career in February 1989 as a rank-and-file member employed at Super Value in Fort Wayne, Indiana, which had a collective bargaining agreement with Local Union 414.  Since that time, he has been continuously employed under the local union’s jurisdiction, except for a brief period when he was employed by UPS and was a member of Local Union 710.  In January 2000, the protestor was hired by the Indiana Teamsters Safety Training Fund, operated by Joint Council 69 and based out of Local Union 414’s offices.  In that position, Lytle taught safety courses to Teamsters throughout Indiana.  Between 2000 and early 2009, he served both the joint council as safety instructor and Local Union 414 as an organizer and business agent, with the two organizations sharing his salary and benefits. 

            After Walt Lytle was diagnosed with cancer in October 2009, the daily responsibility for running Local Union 414 fell largely to Dennis Arnold, who was then local union president and the longest-serving business agent.  Arnold was hired when Walt Lytle became principal officer in 1985.  In late Fall 2010, Lytle nominated Arnold to succeed him as principal officer.  The local union executive board appointed Arnold as secretary-treasurer for the term ending December 31, 2011.  George Gerdes, a business agent and executive board member, was nominated to replace Arnold as president for the same term.

            In December 2009, a few months after Walt Lytle received his diagnosis, Arnold nominated Brian Lytle to the executive board as recording secretary, over the objection of Gerdes.  The protestor was elected to the executive board and assumed his duties for the term ending December 31, 2011.  About a year later, at the November 2010 executive board meeting, the members were polled as to their interest in attending the IBT convention as a delegate or alternate delegate.  Local Union 414 was entitled to elect two delegates and had decided to elect two alternate delegates as well.  Arnold planned to seek a delegate position.  In addition to Arnold, Gerdes and James Rice, a business agent, expressed their desire to go to the convention.  According to the protestor, when Kim Springer, another business agent, appeared non-committal about attending the convention, the protestor then indicated his willingness to attend as an alternate delegate. 

            In December 2010, Arnold and Gerdes began to put together a slate to run in the delegates election.  Arnold announced that the slate would include himself and Gerdes as delegate candidates, and Rice and Tim Gitary as alternate delegate candidates.  Protestor Lytle viewed the selection of Gitary as a slight.  Before the slate so constituted could be finalized, however, it was determined that Gitary was not eligible to run for alternate delegate.  Arnold then asked Kent Koester, a rank-and-file member, to run for alternate delegate on the Arnold-Gerdes slate, but Koester declined, opting instead to form his own Members For Change slate.[1]  Finally, on December 29, 2010, Arnold called protestor Lytle and Springer, who previously had been non-committal about the convention, into a conference room and informed them that he had chosen Springer to complete the Arnold-Gerdes slate as a candidate for alternate delegate.   Arnold told our investigator that he chose Springer over Lytle, both of whom were business agents, because Springer was responsible for more than 500 members at 35 employers, while Lytle represented members at only four employers.

            After he learned on December 29 that he would not be part of the Arnold-Gerdes slate, protestor Lytle told our investigator that he spoke with his father, Walt Lytle, that evening, who told him he either needed to run against Arnold and Gerdes in the delegates election or face being fired as a business agent of the local union.  The next day, Thursday, December 30, 2010, Brian Lytle walked into Arnold’s office and handed him a letter that stated:

I am writing you today to inform you of my intent to run as a delegate from Local 414 in the upcoming election.  I also intend to run for Secretary-Treasurer position in the fall of 2011.

By informing you of this I would expect no retaliation for my decision to exercise my rights under the By-Laws of Teamsters Local Union 414 and the International Brotherhood of Teamsters Constitution.   

           

Arnold told our investigator that when Brian Lytle handed him the letter on December 30 announcing his candidacy for delegate, it “was like a knife in my back.”  In response to the letter, Arnold stated that he told Brian Lytle that his father Walt had always said that the officers should not fall apart and should stick together. 

            Approximately four years earlier, the local union’s business agents had been issued laptop computers for their business use.  In early 2010, after Arnold assumed day-to-day operation of the local union, he instructed the business agents that their computer passwords had to be given to Deb Horvath, a local union clerical, to be kept in a locked safe at the hall.  Lytle told our investigator that in November 2010, he changed the password on his computer because he often took the computer home and wanted the additional security in the event it were lost or stolen.  He said he forgot to give the new password to Horvath because of what he termed “strained family issues.” 

            On Monday, January 3, 2011, the first workday after Lytle announced his delegate candidacy to Arnold, Arnold went to Lytle’s office before the latter’s arrival, removed Lytle’s computer and printer and took them to his office.  When Lytle arrived at work that day and found his computer missing, he was called into Arnold’s office and was told they needed his password to check his computer “due to everything going on.”  According to the protestor, he was also told they needed to check his computer for campaign material.  According to the official response filed by Local Union 414, “[t]he Union confiscated the computer and printer from Lytle’s use because Lytle had changed the password on the computer without recording a new one.”  The official response denied that Arnold told Lytle they needed to search for campaign material and sought to justify the confiscation of the computer as being for a “valid business purpose,” without actually stating the business purpose.  The computer and printer were never returned to Lytle.  He later purchased his own computer for use at work. 

            Arnold ordered a forensic examination of Lytle’s computer, which determined that no campaign material was found on it, although some other personal items were saved on the computer.  Lytle told our investigator that there was no policy that prohibited personal use of the laptop, and other business agents had used their laptops for personal purposes.  Further, Lytle stated that before the January 3, 2011 seizure of his computer, no business agent’s laptop computer had been confiscated and searched.

            On January 4, Lytle filed his pre-election protest, alleging that the confiscation and forensic examination of his work computer were retaliation for his delegate candidacy.

            Ballots in the delegates election were mailed on February 4 and counted on February 28, 2011.  All candidates on the Arnold-Gerdes slate won the positions they sought.

            On February 28, when the count had concluded, Arnold called Lytle into his office and discharged him as a local union business agent.  Arnold gave Lytle a letter stating the following:

It is apparent that you do not share views and goals in common with this administration concerning the operation and policies of this Local.  Therefore, effective immediately, you will cease to be a Business Agent for this Local Union. Although you will remain as Recording Secretary until the end of the term on December 31, 2011, you are no longer permitted to hold yourself out to members, employers, or the public as having any representative function for this Local Union. Your responsibilities are now limited to those set forth in the By-Laws for the office of Recording Secretary.

Three days later, on March 3, Lytle filed his post-election protest, alleging that his discharge constituted retaliation prohibited by Article VII, Section 12(g) of the Rules.  The protest stated the following, in part:

I was relieved of my duties as a Business Agent on February 28, 2011 by Dennis

Arnold (see enclosed).  On December 30, 2010, I hand delivered a letter to Mr. Arnold explaining to him that I was going to run as a delegate for Local 414 as well as run against Mr. Arnold in the fall for the Secretary-Treasurer position. Kim Springer was present at the time I delivered this letter.  During the January 4, 2011 Executive Board meeting, Mr. Arnold made an open ended threat to my job duties by saying I had 60 to 90 days to organize a new group.  At the March 1, 2011 Executive Board meeting, Mr.  Arnold handed out new keys to the building, including outside board members.  I did not receive a new set of keys.  Mr. Arnold has never had a disciplinary meeting with me over the last 12 months.

            Arnold told our investigator that he made the decision to discharge Lytle as a local union business agent in December.  He claimed that Lytle was caught that month copying a membership list and that he used gasoline purchased with a union credit card to attend a Gegare-Zuckerman fundraiser in Detroit at the end of November.  While Local Union 414 pays for nearly all of gasoline used by its business agents, it does not pay gas for vacations taken out of town.  Arnold said that when Lytle offered to pay the back the cost of the gasoline used to attend the Gegare fundraiser, Arnold refused the offer, telling Lytle it was not necessary.  Arnold told our investigator that when Lytle was nominated for delegate on January 4, Arnold had discussions that same day with the local union’s attorney, Fred Towe, and with an attorney for the IBT, Gary Witlen, about firing Lytle.  Arnold said that Witlen advised him to wait until after the conclusion of the delegates election, and Arnold decided to wait until the ballots had been counted.  

            Arnold advanced a further justification for firing Lytle, telling our investigator that in the summer of 2010, the IBT conducted an audit of Local Union 414 and issued recommendations that it cut its expenses because of loss of membership and dues revenue.  A copy of the audit was provided.  Local Union 414’s membership declined from 2,399 members in June 2006 to 1,756 in April 2011, a drop of some 27%.  Arnold stated that based on the membership numbers, the local union was overstaffed with business agents.  The official response from Local Union 414 also stated that between 2000 and early 2009, Lytle’s compensation was shared with Joint Council 69.  The joint council paid approximately $1,200 to $1,300 per week of Lytle’s wages and the entire cost of his fringe benefits and car allowance.  During this period, Local Union 414 paid the remainder of approximately $300 per week on his salary.  This arrangement continued until early 2009 when Lytle was terminated by Joint Council 69.  At that time Local Union 414 paid all of his wages, fringe benefits and car allowance.  This occurred while Walt Lytle was secretary-treasurer of Local Union 414.  The response noted that not only had the membership been reduced by over 25% during the five year period, but the financial obligation assumed by the local union for Lytle increased by 500 to 600% over what it had incurred prior to his termination by Joint Council 69.

            Arnold also claimed that, during a period of disability for Brian Lytle that began in February 2006[2], all of the business agents pitched in to assist with his duties.  Arnold stated that over the years after Brian was diagnosed, Walt Lytle protected his son even though, according to Arnold, Brian was not doing his job as organizer and business agent.  According to Arnold, Brian Lytle would often not show up for work, or would leave the office claiming to be going to a worksite when actually he was conducting personal business.  Arnold claimed that Brian Lytle’s work ethic was lackadaisical, a charge echoed by Gerdes.  Arnold stated that after he assumed Walt Lytle’s duties in October 2009, he told Brian Lytle on several occasions to get busy organizing since the local union was losing members. 

Brian Lytle denied that he was disciplined or warned concerning his work performance.  Further, he told our investigator that in August 2009, business agent Kim Springer became ill and was off work for 9 months, during which time the protestor serviced all of Springer’s accounts in addition to his own, without any help from Arnold or Gerdes. 

Although Arnold raised these additional issues concerning Lytle’s job performance and the local union’s financial situation in response to the protest, the discharge letter stated expressly that Lytle was discharged because he did not “share views and goals in common with this administration.”  No claim was made at the time of discharge that Lytle was not performing his job satisfactorily, that he had committed misconduct, or that the local union could not afford his salary and benefits.

Analysis    

            Lytle’s protests alleged that Arnold’s seizure of his computer and printer on January 3, and his discharge on February 28 from his local union business agent position, constituted retaliation for exercising his right to be a candidate for delegate in the upcoming delegates election, in violation of Article VII, Section 12, subsections (a) and (g) of the Rules.  The Rules’ prohibition is clear.  Article VII, Section 12(a) describes activity protected by the Rules as follows: 

All Union members retain the right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.

Article VII, Section 12(g) states that: 

Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or 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 establish a violation of this section, “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.”  Bundrant, 2005 ESD 19 at 10 (October 25, 2005), aff’d, 05 EAM 4 (November 15, 2005) (quoting Cooper, 2005 ESD 8 (September 2, 2005). 

            The evidence substantiating Lytle’s charges is persuasive.  Lytle’s delegate candidacy is activity protected by the Rules, and both confiscation of the laptop and the discharge from business agent responsibilities constitute adverse actions.  The evidence as to each incident establishes that Lytle’s protected activity motivated the adverse action.  Arnold confiscated the computer hardware on the first business day after Lytle announced his delegate candidacy, an announcement that Arnold described as a “knife in my back.”  We find that Arnold then told Lytle that the computer was being checked “due to everything going on.”  The “everything” to which Arnold referred, we conclude, was Lytle’s delegate candidacy, as the forensic examination focused on whether Lytle used the union computer for campaign purposes.  Even when the examination found no evidence of such improper use, however, Arnold did not return the computer and thereby deprived Lytle of a tool he used to perform his duties as business agent and compelled him to purchase his own computer.  No other business agent ran in the delegates election against the Arnold-Gerdes slate, and no other business agent suffered the confiscation and forensic examination of his computer and printer.

            The local union’s official response nonetheless defended Arnold’s action, claiming that Lytle’s failure to update the computer password with the designated office clerical employee of the union, coupled with the personal information found on the hard drive, “confirms that [Lytle] treated the laptop as is [sic] personal property.”  The response further noted that the confiscation of Lytle’s computer made no difference in the campaign for delegate waged by Lytle or his slate. 

            We conclude that the local union’s justification for the confiscation and examination of the computer issued to Lytle is pretextual.  The union stated that it took the laptop “because Lytle had changed the password,” but that was not the sequence of events.  The laptop was taken away on January 3, before Lytle came to the office.  Lytle had declared his candidacy to Arnold on the last workday before the confiscation but  the union did not know at that point about the changed password.  Assuming that Local Union 414 had the password policy, Lytle’s breach of it was not the cause or reason for confiscating the computer.  The facts and the timing demonstrate convincingly that the bona fide reason for the action was retaliation for Lytle’s delegate candidacy.  Such conduct violated Article VII, Section 12(g) of the Rules. 

            We find that Arnold’s discharge of Lytle also constituted prohibited retaliation.  Arnold admits that he decided to discharge Lytle as a business agent in December 2010.  No argument is made that Lytle was discharged for cause and the discharge letter does not support that in any case.  Conduct Arnold identified in the investigation such as Lytle’s using the union credit card to purchase gasoline for a personal trip (which was disclosed and excused) or Lytle’s copying a membership list (which was not even proved) is not mentioned in the letter.  Local Union 414 had borne Lytle’s full salary since 2009 and the IBT had recommended expense reductions in 2010.  These fiscal burdens did not lead to Lytle’s discharge in 2010, however, and the discharge letter itself does not cite union finances as justification for the discharge.  Arnold admits the decision to discharge Lytle was made on the heels of the delegate nominations, but that he deferred implementing the decision until after the end of the delegate election.  .

            Arnold argues that the discharge is allowed on policy grounds or, as stated in the February 28 letter, based on Arnold’s conclusion that Lytle did “not share views and goals in common with this administration concerning the operation and policies of this Local.”  We have read the anti-retaliation provisions of the Rules in light of “the right and authority elected union officers have to set union policy.”  Virtue & Ramos, 2007 ESD 403 at 5 (July 9, 2007), aff’d, 07 EAM 82 (October 5, 2007).  An election of union officers by the membership vests those elected as officers with the power and authority to make policy for their union body, and that includes selection of personnel to appointed union positions.  By waiting to implement the Lytle discharge until after the delegates election, Arnold appears to have equated the function and nature of the delegates election with that of a local union officers election. 

            Convention delegates, however, are not elected to policy positions in local union bodies and do not, by virtue of their delegate status, wield authority to make policy choices within local unions.  See IBT Constitution, Article III, Section 5(a)(4).  A convention delegate does not, by virtue of that status, have authority to hire or discharge local union employees.  The delegates election does not, therefore, provide any cover of authority for Arnold to discharge Lytle.

            Arnold, in his capacity as a local union officer, could make a legitimate policy decision to discharge Lytle but that did not happen in this case.[3]  We recognized, in Virtue & Ramos, that the international representative terminations at issue might have violated the Rules had they occurred in the midst of an election campaign and if “the personnel decision was made to gain an electoral advantage, punish an opponent, or discourage opposition in violation of the Rules.”  Virtue & Ramos, 2007 ESD 403 at 7-8.  Arnold’s discharge of Lytle fits that description.  The International officer election is occurring at this time and was plainly in process at the time Arnold decided to discharge Lytle and also when the discharge occurred.  The facts show that Arnold made the discharge decision in response to Lytle’s exercise of protected rights and that decision both punishes a political opponent and discourages further opposition.  There was no credible evidence that the decision to discharge was made for performance or even policy reasons independent of Lytle’s exercise of a protected right.  Indeed, Arnold’s statements and the timing of the conduct confirm that this was retaliation. 

            Accordingly, we GRANT each protest.

Remedy

When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.” Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.

            We order Arnold and Local Union 414 to cease and desist from retaliating against Brian Lytle for activity protected by the Rules.

            We further order Arnold and Local Union 414 to post the notice attached to this decision on all worksite bulletin boards of the local union within two days of issuance of this decision.  The notice must remain posted until September 30, 2011.  Within two days of completion of the posting requirement, we order Arnold to submit an affidavit of compliance to OES.

            We further order Local Union 414 to reinstate Brian Lytle to the business agent position from which he was discharged on February 28, at the same salary, fringe benefits, and terms and conditions of employment that were in existence at the time he was discharged.  Such reinstatement shall be made within two days of issuance of this decision.  In addition to the reinstatement, the local union shall pay Lytle the salary and fringe benefits he would have earned from February 28 to the date of reinstatement had the local union not discharged him.  The local union may take credit against the salary and fringe benefits due Lytle for all salary and fringe benefits Lytle earned from other employment since February 28 that he would not have earned had the local union not discharged him.  The local union may not take credit against the salary and fringe benefits due Lytle for any unemployment compensation Lytle may have received, if Lytle has a duty under law to repay that unemployment compensation to the government authority that issued it to him. 

            At Lytle’s option, he may request that the local union reimburse him for the cost he paid to purchase a computer to replace the one confiscated from him by Arnold on January 3, 2011, and the local union is ordered to pay that cost to Lytle.[4]  On election of this option, Lytle must supply adequate proof of the expense to the local union, and ownership of the computer will pass to the local union upon such payment.  If Lytle declines the option and chooses to keep the computer he bought, the local union must provide to him either the computer and printer confiscated from him or a comparable computer and printer; any computer and printer provided to Lytle must be in operating condition.  The Election Supervisor will resolve any dispute between the parties on this issue. 

 
            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, NY  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.