Protest Decisions

            Patrick Nichols, member of Local Union 50, 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 50 used union resources to assist the campaigns of candidates for International office on the Gegare slate, in violation of the Rules; the protest further alleged that Nichols was discharged from employment as a business agent of the local union in retaliation for activity protected by the Rules.  Dani Barnett, a member of the local union, filed a protest alleging that she was discharged from employment as an office clerical of the local union in retaliation for activity protected by the Rules. 

            In Nichols et al, 2011 ESD 306 (August 5, 2011), we found that Local Union 50 and two of its officers violated the Rules by using local union resources to promote the candidacy for IBT Central region vice president of Jerry Conner and that Conner committed a reciprocal violation by accepting the improper contribution.  We ordered a full remedy, which the Election Appeals Master affirmed in all respects in 11 EAM 55 (August 19, 2011).

            We expressly reserved in Nichols the issue of whether Nichols suffered prohibited retaliation under the Rules.  We consolidated that issue with Barnett’s protest in Case No. P-275-053111-MW for investigation and decide them together now.

            Election Supervisor representative Jeffrey Ellison investigated these protests.

Findings of Fact

            Protestor Nichols was appointed to a trustee position on the executive board of the local union in 2003.  Through subsequent elections and appointments, Nichols rose to the position of local union vice president.  In addition to serving in these executive board positions at various times, Nichols was hired by the local union as a business agent in 2006 and held that position on a full-time basis until May 11, 2011, when he was discharged from it.  Nichols’ protest alleged that the discharge constituted retaliation for activity protected by the Rules.

            For some three and one-half years, protestor Barnett was employed as an office clerical of the local union.  She was also a member of the local union, although no union contract covered her employment and, like Nichols, she served at will.  On May 26, 2011, the local union’s principal officer announced to Barnett that he was reducing her hours from 40 to approximately 15 per week.  Hearing this, Barnett walked out of the local union hall and has not worked for the local union since.  Barnett’s protest alleged that the reduction in her hours constituted retaliation for activity protected by the Rules.

            The context for these employment decisions is as follows.  The local union executive board at the beginning of 2011 included president and principal officer Bob Triplett, William Bradley as secretary-treasurer and Scott Alexander as vice president.  Bradley died in late January 2011.  The executive board filled his vacancy by elevating Alexander to secretary-treasurer.  The resulting vacancy in the vice president’s position was filled by Nichols.

            Less than three months later, Triplett resigned as president and principal officer.  Triplett told our investigator that Alexander confronted him on Monday, April 11, 2011 concerning the auto expenses Triplett submitted and that the local union reimbursed.  Triplett said that Alexander argued the claimed expenses were improper; Triplett countered that they were permissible and that the issue had been settled years earlier when another local union officer had established the practice that Triplett was following.  According to Triplett, Alexander threatened to file internal union charges against him over the expense reimbursement.  Alexander denied to our investigator that he made such a threat or even spoke to Triplett about the expenses.  Nonetheless, Triplett resigned his office abruptly that same day, Monday, April 11, 2011.  He told our investigator that he had been considering resigning because of his health and age but moved the decision up to April 11 because of the confrontation with Alexander.

            Protestor Nichols was on extended medical leave at the time of Triplett’s resignation.  On March 1, 2011, Nichols underwent emergency surgery.  He learned of Triplett’s resignation while recuperating at home from that surgery.  He also learned that a special executive board meeting would be held on the evening of April 11 to address the executive board vacancy.  Though still on medical leave, Nichols attended the meeting.  He expected that the board would move Alexander from secretary-treasurer to the position of president and principal officer.  Nichols also expected, based on the historic pattern when such vacancies occurred on the board, that the board elevate him from vice president to secretary-treasurer.  As expected, the board voted to name Alexander as president and principal officer.  Once this was accomplished, however, Alexander moved that Mark Beil, the existing recording secretary, be appointed to the secretary-treasurer post, bypassing Nichols.  The board approved this motion.  Marc Archer, a recent appointee to local union trustee, was then made recording secretary.

            Nichols told our investigator that he was surprised and concerned by Alexander’s motion that bypassed Nichols for the secretary-treasurer position.  He said he spoke with Alexander about the action shortly after the meeting and asked expressly whether his job as business agent was secure.  According to Nichols, Alexander advised him to go along with the decision, be a part of the team, and that changes were coming to the local union.  The following Monday, April 18, Alexander hired Marc Archer as full-time business agent.

            Nichols’ physician permitted him to return to work as a local union business agent on Tuesday, May 3, 2011.  That morning, Nichols said that Alexander told him that he was to take new business agent Archer with him to any meeting he attended as business agent.  Nichols told our investigator that as of that moment he knew that he was training Archer to be his replacement.  Nichols complied with Alexander’s directive, and Archer (and at times Beil) rode with Nichols to various union-management meetings and business agent investigatory meetings over the next seven business days.

            During this period, Nichols said he was aware that Alexander sought to reduce the local union’s expenses and enhance its revenues.  The local union owned a trailer that was used to haul a local union golf cart around for various public appearances.  Alexander sought to improve local union finances by selling the trailer.  Nichols was aware that the person who provided a storage place for the trailer was interested in purchasing it.  Nichols advised Alexander of this fact and was directed to explore a sale with the individual.  Nichols said he did so, obtained an offer to purchase, solicited and obtained Alexander’s approval of the purchase price, and consummated the sale.  On Tuesday, May 10, Nichols delivered the check for the sale to local union office clerical Barnett, who deposited it in the local union’s bank account and posted it to the TITAN accounting system.  Nichols obtained the trailer title and delivered it to the purchaser.

            The following day, Wednesday, May 11, Barnett said that Alexander came to her work area and instructed her to tell him when the check for the trailer arrived.  She informed him that Nichols had delivered the check the previous day and that it had been posted to the TITAN accounting system and deposited in the bank.  At this news, Barnett said Alexander became very angry and said that henceforth she was not to do or post anything without asking Amy Kempfer first.  Kempfer was a new office clerical Alexander hired a week earlier, on May 3, and who Barnett and office manager Mary Ferguson were training in all office procedures.  According to Barnett, Kempfer, who was present, confirmed to Alexander that Barnett and she had posted the check the previous day.  According to Barnett, this information did not appear to mollify Alexander.

            Nichols walked into this scene and observed Alexander being verbally aggressive with Barnett.  Nichols’ protest said that Alexander was “clearly upset about something.”  He told our investigator that Alexander “was screaming at” Barnett about the check for the trailer sale, demanding to know “why in the hell” she would take action on the check without approval.  Nichols said that Alexander angrily announced that “that shit is not going to happen around here anymore.  From now on, that goes through me or Amy [Kempfer].” 

            Nichols said that Alexander then turned to him and, in the same tone he had used with Barnett, said “we need to talk.”  Alexander directed Nichols upstairs to Archer’s office.  According to Nichols, Alexander, in Archer’s presence, then began questioning Nichols about “some ongoing issues at a large construction job in Local 50’s jurisdiction.”  According to Nichols, the discussion was heated.  Nichols said he asked Alexander why he was “coming down” on Nichols in that way, stating that he merely wanted to return from sick leave and do his part to grow the local union.  Nichols told Alexander and Archer that he was “just trying to be part of the team and build this local.  If that is a problem or not part of the plans, please let me know.”  Nichols said that Alexander stood up and abruptly directed Nichols to surrender his “key, credit card and phone, and get out.”  Nichols complied (first removing the SIM card from his phone) but asked what prompted this action.  Nichols said Alexander did not immediately answer, but finally said that Nichols “just wasn’t a fit anymore.”  Nichols descended the stairs to the ground floor with a box of personal possessions.  He passed Barnett, telling her he had just been fired, and left the premises.

            At this news, Barnett began crying.  Alexander entered the office area moments later, observed Barnett crying and, according to Barnett, said “I suggest you don’t talk about what just happened here.  Do you understand?”  She nodded her head that she understood, and Alexander left.

            Alexander told our investigator that Nichols had sold the trailer and given the check to Barnett without letting him know.  He said he gave instructions to Barnett that she was to tell him when a check for such a transaction was received.  Alexander further told our investigator that he spoke with Nichols that same day about problems with layoff procedure at Bechtel’s Prairie States project labor agreement.  A foreman had telephoned Archer and conveyed that Nichols had been involved with respect to which union members were to be laid off when layoffs were necessary.  According to local union attorney Britt Sowle, the employer was not to consult with the local union concerning which employees to lay off; rather, it was to exercise its contractual right without union involvement. 

            Alexander denied that he discharged Nichols, stating instead that Nichols quit.  According to Alexander, Nichols told him that he did not feel that he was part of the team, stating that he didn’t like having to answer questions about his conduct with an employer.  Alexander recounted that Nichols said, “Don’t string me along if you’re going to get rid of me.”  To this, Alexander said he replied, “If you don’t feel like you’re part of the team, then give me your stuff,” meaning his phone, keys and credit card.  Alexander told our investigator that when Nichols then surrendered the union property, it was because of Nichols’ feeling that he was not part of the team and was not a post-discharge recovery of employer property.  As such, Alexander insisted to our investigator that Nichols had resigned his job by turning over the union’s property.

            The local union’s attorney, contrary to Alexander, freely conceded that the local union discharged Nichols, stating that the discharge was for failing to cooperate with an investigation of his conduct as business agent.

            Nichols filed his protest on May 25.  As noted, the protest asserted that the local union, Alexander and Archer had used union resources to support the campaigns of Jerry Conner and other candidates for IBT vice president on the Gegare slate.  The protest further asserted that his dismissal from employment as a business agent was “for political reasons,” specifically that Nichols was a “known Hoffa supporter,” and that the asserted reasons for his dismissal – that “we are moving in different directions” and Nichols “[doesn’t] fit anymore” – was a pretext for the retaliatory motive.

            Our office acknowledged receipt of Nichols’ protest and transmitted it by email to all interested parties, Local Union 50 included, that same day.  According to Barnett, she delivered the protest and acknowledgment letter to Alexander the day it arrived, May 25. 

            Nichols’ protest mentioned Barnett by name twice.  In the first mention, Nichols stated that he contacted office manager Ferguson and clerical Barnett in late April to inquire what contracts Archer had been assigned to administer as a new business agent.  Nichols stated that the office staff informed him that Archer was not assigned any contracts but instead was working on a campaign website for Jerry Conner.  The second mention of Barnett in Nichols’ protest recounted Alexander’s angry conduct toward her concerning the trailer sale.

            On May 26, the day after Nichols’ protest was received, Alexander summoned Barnett into a conference room with Kempfer.  There, Alexander told Barnett that he was reducing Barnett’s hours from 40 per week to approximately 15 in an effort to reduce the local union’s expenditures.  Barnett reacted abruptly, walking out the room as Alexander called after her.  She gathered her personal possessions and left the union hall, never to return to work.

            In early June 2011, the local union hired a part-time office clerical.

Analysis

            Article VII, Section 12(g) prohibits a local union from retaliating against a member for activity protected by the Rules.  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 Election Supervisor will not find retaliation if he concludes that the member 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, we conclude that Nichols satisfied the second element of the offense, as we find that Alexander discharged Nichols on May 12, 2011.  We reject Alexander’s contention that Nichols voluntarily quit his job, crediting Nichols’ version of the meeting with Alexander and noting attorney Sowle’s admission on his client’s behalf that Nichols was terminated.

            However, we find that Nichols does not satisfy the first element of a retaliation case (and by extension, the third element), in that he did not establish that he engaged in activity protected by the Rules and that the discharge was motivated by such protected activity.  In reaching this conclusion, we recognize that Nichols was the chief witness against Alexander, Archer, Conner and Local Union 50 in Nichols et al, 2011 ESD 306 (August 5, 2011), producing substantial and credible evidence that they had made extensive use of union resources to support the candidacy of Conner, among others, through the building of a website and the conduct of a union membership meeting.  However, Nichols’ allegations and evidence against the respondents were produced after his discharge from employment.  During his observation of and interaction with Alexander and Archer while they used union resources for campaign purposes, Nichols gave no indication to them that he objected to their conduct or that the conduct was improper.  Accordingly, he did not engage in activity protected by the Rules that motivated Alexander to discharge him, as his only protected activity came when he filed the protest two weeks after he was fired and subsequently gave evidence in support of that protest.

            Reinforcing this conclusion is that Alexander’s move to pass over Nichols for the vacant secretary-treasurer position came even before Alexander and Archer violated the Rules in support of Conner’s candidacy.  Further, Alexander’s instruction to Nichols on his first day back from medical leave that he teach Archer how to be a business agent came before Nichols knew the extent to which Archer was working on the campaign website in the union office.  These facts suggest strongly that Alexander had decided immediately upon assuming the presidency of the union on April 11 to move Nichols out of the way in order to get his allies, Archer and Beil, into important positions on the executive board and in full-time union employment with the union.  This decision came three weeks before Nichols returned from medical leave, a month before he was discharged, and six weeks before exercising his right to protest alleged Rules violations.

            Accordingly, we DENY Nichols’ protest.

            At its essence, Barnett’s protest claims that Alexander reduced her hours either because she observed Nichols’ exit immediately upon being fired and cried in Alexander’s presence or because Nichols identified her in his protest asserting that she was a witness to impermissible use of union resources to campaign. 

Even were we to find, which we do not, that the proofs showed that Alexander reduced Barnett’s hours because she displayed sympathy at Nichols’ discharge, we would not find that such conduct violated the Rules.  Expressing sympathy at an employee’s dismissal is not conduct protected by the Rules, as it neither supports nor opposes a candidacy or advocates on an issue related to the election.

On the second theory Barnett’s protest advances, we agree that taking adverse action against a witness because that witness gives evidence in a protest investigation may violate the Rules because the activity protected by the Rules in such a case is the giving of evidence.  Taking adverse action against a witness to intimidate her from providing evidence in a protest investigation may also constitute a violation of Article VII, Section 12(g).  Here, however, we find insufficient proof that Alexander’s action was intended to intimidate or retaliate.  As with Nichols, we conclude that Alexander decided well before May 26 that he would reduce Barnett’s hours.  Thus, he hired Kempfer on May 3.  Kempfer was trained in all office clerical functions, including Barnett’s.  When Barnett quit upon learning Alexander’s decision to reduce her hours, she was replaced by a part-time employee.  As such, the evidence fails to persuade us that Alexander’s decision with respect to Barnett’s hours violated the Rules.

Accordingly, we DENY Barnett’s 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, 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, c/o Gibson Dunn & Crutcher, 200 Park Avenue, New York, NY 10166-0193, Fax: (212) 351-5338, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.