OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: SAM BUCALO, ) Protest Decision 2015 ESD 42
) Issued: October 19, 2015
Protestor. ) OES Case No. P-052-092215-ME
__________________________________)
Sam Bucalo, member and secretary-treasurer of Local Union 100, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that Bucalo was suspended from office without pay for a period of two weeks in retaliation for activity protected by the Rules.
Election Supervisor representative Dan Walsh investigated this protest.
Findings of Fact
As detailed in Hoffa-Hall 2016, 2015 ESD 28 (August 28, 2015), protestor Bucalo published and distributed (on July 1, 2015) to the membership of Local Union 100 as campaign literature a self-financed “member newsletter” that presented information and personal views on events within the local union, promoted Bucalo’s candidacy for re-election as local union secretary-treasurer, and endorsed the Teamsters United slate of candidates for International office. That decision resolved two protests filed against Bucalo, the first by Hoffa-Hall 2016 on July 13, 2015, the second by Local Union 100 member Jimmy Meyer on July 17, 2015.
Bucalo contends in this protest that the executive board of Local Union 100 and Joint Council 26 retaliated against him because he expressed support for the Teamsters United slate in his July 2015 campaign literature.
The facts relating to the current protest are as follows. In addition to his duties as local union secretary-treasurer, Bucalo serves as business agent for between one-fifth and one-quarter of the local union’s 4,000 members. In that role, among other duties, he leads negotiations at the local union level for successor collective bargaining agreements.
In 2014, Bucalo led negotiations for a replacement contract between Local Union 100 and Zenith Logistics (“Zenith”) in Cincinnati, Ohio. He was joined on the union side of the bargaining table by an elected committee of members employed by Zenith. Negotiations were expected to extend over several days and take place during working hours, for which the Zenith employees on the union committee would be excused from their regular duties. The existing contract did not provide for the union committee members to be paid their lost wages during negotiations.
The Zenith unit previously had been under the jurisdiction of Local Union 166. That local union generally paid lost time to bargaining committee members for negotiations. In contrast, Local Union 100 by established policy and practice decides case-by-case whether to pay lost time to bargaining committee members, with specific limits on the number of bargaining days or dollar amounts involved, and after due consideration by and vote of the local union executive board. Given this policy and practice, so that members do not lose their regular wages while serving on bargaining committees, the local union generally schedules bargaining sessions for days and hours of days when committee members are not otherwise scheduled to work.
Because of the history at Zenith and the employer’s desire to have negotiations during the work day, Bucalo obtained the employer’s oral commitment to pay one-half of the regular wages of union bargaining committee members if the union paid the other half. Bucalo took the proposal to the local union executive board for consideration and approval.
The executive board debated the issue at a meeting held August 27, 2014. Board members expressed concern about setting a precedent in paying lost time that might have to be applied to bargaining committees involved in the 60-plus other contracts the local union negotiates. After debate, however, the board unanimously approved a resolution to pay one-half of the regular wages of the bargaining committee, but only for the first six bargaining sessions. The resolution approving the payment of lost-time wages was for the pending negotiations only.
In the collective negotiations that ensued with Zenith, Bucalo and the union bargaining committee proposed, and the employer accepted, language in the collective bargaining agreement that memorialized the shared payment of lost-time wages to union bargain committee members going forward, viz.
Contract Negotiating Committee. The employer and the union will each pay ½ the committee members’ normal scheduled wages for each day of negotiations for the employee contract negotiating committee members. The committee will be restricted to six members.
This language committed Local Union 100 to pay lost-time wages for future contract negotiations with Zenith; it did not limit the payment of lost time to six sessions as the specially adopted executive board resolution had done for the 2014 negotiations; and it was inserted into the contract without advance notice to or approval of the executive board. The approval process for successor collective bargaining agreements includes ratification by the bargaining unit members and by the applicable division of IBT (here, the Warehouse Division), the latter solely to insure that wages, benefits, and pension provisions meet standards set by the IBT’s General Executive Board. Accordingly, the local union executive board did not approve – and indeed did not have knowledge of – the lost-time provision for a future bargaining committee before the contract was ratified and took effect.
When local union president David Webster learned of the provision, he spoke with Bucalo, told him that the provision was contrary to the policy and uniformly enforced practice in Local Union 100, and instructed him to “fix it.”
In the meantime, on February 25, 2015, six of the seven members of the executive board (Bucalo being the obvious exception to unanimity) authorized an internal union charge against Bucalo, stating that negotiation of the lost-time provision occurred without the knowledge or consent of the executive board and was contrary to the union’s “longstanding practice of considering the payment of lost-time wages for bargaining committee members on a case-by-case basis and of approving such payments only after due consideration and with specified limits on the number of days or amounts involved.” The charge alleged that Bucalo brought reproach on the local union, violated his fiduciary duties to the membership, and encroached upon the authority of the executive board, in violation of the IBT constitution and Local Union 100 bylaws.
Bucalo sought to solve the problem he created by negotiating a “clarification” of the contract provision. He obtained tentative approval from the bargaining committee and the employer for the following addendum:
To clarify Article 15, Paragraph 3, the parties agree that the authority to approve the payment of lost-time wages by the Union is reserved by the Teamsters Local 100 Executive Board. In the future negotiations, the agent assigned to the Zenith warehouse will bring a resolution to the Local 100 Executive Board for their review to pay lost-time wages for the negotiating committee members. In the event the Executive Board approves the sharing of lost-time wages, then the company agrees to pay one-half of lost-time wages. In the event the Local 100 Executive Board refuses to approve lost-time wages, the company is not obligated under Article 15 to pay lost-time wages for the negotiating committee members
This so-called clarification effectively changed the contractual provision from a promise to pay lost time in the future to one that was contingent on the executive board’s approval at the time the negotiations commenced. Because the contract had already been ratified, legal counsel for Local Union 100 determined that the addendum could become effective only were it ratified by the bargaining unit. In March 2015, Bucalo was instructed to present the addendum to the membership for ratification. He did not do so then and still has not. His explanation for not seeking ratification of the addendum is that a pension issue between the IBT and Zenith is presently in negotiation and he is awaiting the opportunity to present both issues to the bargaining unit for simultaneous ratification.
As the charging parties on the internal union charge against Bucalo were a majority of the local union executive board, the IBT constitution required that that the charge be tried to the joint council. Hearing was scheduled for July 9, 2015.
On July 1, 2015, Bucalo mailed to the membership of Local Union 100 and posted on Facebook the personal newsletter that became the subject of our decision in Hoffa-Hall 2016 & Meyer, 2015 ESD 28 (August 28, 2015). Minutes show that the newsletter and protests about it were discussed at the regular meeting of Joint Council 26 held July 6, 2015.
By constitutional procedure, the executive board of the joint council is the hearing panel for trials it conducts. However, because two of its members were also charging parties against Bucalo, they were replaced by disinterested officials from other local unions. Bucalo’s objection that the charging parties had “personal relationships and friendships” with the panel that Bucalo did not have was overruled, with Bucalo failing to identify any reason why the panel would not be impartial and the panel declaring its impartiality.
The hearing on the charge against Bucalo was conducted July 9, 2015. Two of the six charging parties appeared in person at the hearing and presented evidence in support of the charge. Bucalo also appeared in person at the hearing and presented evidence in his defense. Bucalo’s objection that the charges should be dismissed because all charging parties did not appear at trial was overruled, the panel concluding that the charging parties who appeared were constitutionally permitted to present the charges and evidence against Bucalo.
After hearing on the merits, the panel deliberated and reached a unanimous decision, which it issued in writing on September 8, 2015. The panel found that Bucalo knew he was required to obtain executive board approval of any request to pay lost time to bargaining committee members, which request would be considered on a case-by-case basis, yet he proposed for inclusion in the collective bargaining agreement a provision that committed the local union to pay such lost time for future negotiations on an open-ended basis, with the only limitation being the number of committee members, six, who would be paid. By committing the local union to an expenditure that only the executive board could authorize, Bucalo was found to have brought reproach on the IBT and breached his fiduciary obligation to the local union.
The panel rejected Bucalo’s defense that the contract language did not bind the local union to payment of lost time, finding that the language was mandatory in its character and removed discretion from the local union executive board as to whether to pay lost time and in what amount. The panel also rejected Bucalo’s claim that his conduct was excused because neither the IBT constitution nor the local union bylaws expressly forbid the action he took, finding instead that the specific written policy of the executive board requiring approval of lost-time reimbursements was binding on him. The panel further rejected Bucalo’s claim that he, as secretary-treasurer, had discretionary authority to spend as much as $5,000 without executive board approval, a sum Bucalo said would likely exceed the lost time expenditure for a future bargaining committee. The panel concluded that the specific policy of the executive board requiring approval of lost time expenditures superseded the general discretionary authority granted to the secretary-treasurer. The panel also rejected Bucalo’s assertion that committing the local union to lost time reimbursement was no different than committing the local union to payment of arbitration expenses in the grievance procedure. The panel noted that an appeal to arbitration is a discretionary act of the executive board, taken on a case-by-case basis, whereas the language Bucalo negotiated for lost-time reimbursement was mandatory in nature.
The panel further found that Bucalo took no action to submit the so-called clarifying addendum to the Zenith membership for ratification, despite the direction of Local Union 100 president Webster that he do so. The panel concluded that Bucalo’s failure to present the addendum to the membership was without legitimate excuse and constituted evidence of his disregard of the executive board’s authority to approve payment of lost-time requests on a case-by-case basis.
As penalty for this violation, the panel imposed on Bucalo a two-week suspension from official duties on behalf of Local Union 100. In justifying this suspension, the panel noted Bucalo’s knowledge of the requirement to obtain executive board approval of lost-time reimbursements, his presentation of arguments he knew or should have known did not have merit, his lack of remorse at his action, and his failure to rectify the matter by obtaining ratification of the addendum. The panel ordered Bucalo to submit the addendum to the Zenith membership for ratification within 30 days of its decision and, in the future, to submit to the local union president and executive board all negotiated contracts before they are submitted to bargaining units for ratification.
By letter dated September 17, 2015, local president Webster informed Bucalo that the suspension would commence Monday, September 21, 2015 and continue through Sunday, October 4, 2015. The same day Bucalo received this notice of suspension, he learned from the minutes of the joint council executive board that both the charge filed against him by the Local Union 100 executive board and the protest filed against him by Hoffa-Hall 2016 had been discussed at the joint council executive board meeting held July 6, 2015. Bucalo asserts in this protest that “there is no good reason that the Charges by David Hoffa against Bucalo should have been discussed or reviewed” by the joint council executive board.
The same day he received notice of his suspension and learned of the content of the joint council minutes, Bucalo filed an appeal of the joint council panel’s trial decision with General President Hoffa, requesting a stay of the suspension pending consideration of the appeal. No action was taken on Bucalo’s request for stay, and he served the suspension on the dates president Webster’s letter outlined.
Investigation showed that the appeal and request for stay was received by the IBT legal department before the suspension commenced. However, evidence was presented that the General President was not informed of the stay request. Investigation further showed that requests for stay are sometimes but not always granted, depending on the merits of the case. With respect to the appeal itself, in the event the appeal is granted, the granting body will have authority to adjust or reverse the suspension, with an award of partial or full back pay to Bucalo.
Analysis
Bucalo’s protest alleged that he suffered retaliation for exercising his personal right as a member to endorse candidates in the International officer election, retaliation that came in the form of 1) the local union executive board filing an internal union charge against him; 2) the joint council trial panel finding against him at the trial of that charge and suspending him from his union office for two weeks; and 3) the General President failing to take action on his request for stay of the suspension.
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 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. Miner, 2005 ESD 1 (May 27, 2005); Link, 2011 ESD 207 (April 12, 2011); Ulloa, 2001 EAD 135 (February 6, 2001); Ruscigno, 2001 EAD 105 (January 26, 2001); Pope, 2000 EAD 39 (October 17, 2000); Hoffa, P857 (September 11, 1996), aff'd, 96 EAM 234 (September 19, 1996). In other words, a retaliation case is analyzed under the Rules just as a discrimination case is under the NLRA. See generally Wright Line, 251 NLRB 1083 (1980), enf’d, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).
Bucalo does not offer any persuasive evidence to support his allegations. First and most importantly, Bucalo’s conduct in negotiating a provision requiring the local union to pay lost time to a bargaining committee – a provision he proposed to the employer without first informing the executive board and obtaining its consent – usurped the executive board’s authority to administer this aspect of local union expenditures. The executive board had reserved this authority to itself by written policy and established practice, both of which Bucalo knew were binding on him as business agent. Indeed, Bucalo knew of this policy, having requested that the executive board approve a resolution specific to the 2014 Zenith negotiations; he was also aware that the August 2014 executive board resolution applied only to the pending negotiations and not to future ones.
Second, Bucalo contends that the charge against him was retaliation for protected activity. Timing does not support this contention, however. Bucalo negotiated the provision at issue in or around November 2014. The local union executive board learned of it in February 2015 and responded immediately with the internal union charge. The protected activity Bucalo claims prompted the charge was his July 1, 2015 publication of a personal endorsement of the Teamsters United slate, which occurred more than four months after the charge was filed against him. We reject Bucalo’s implicit assertion that the February 2015 internal charge was a response to and in retaliation for protected activity that would not occur for another four months. Moreover, there is no evidence to suggest that the Bucalo’s July 1, 2015 publication of his political endorsement played any role in the decision of the charging parties to continue with the charge at trial on July 9. To the contrary, we find that positions on the contract language between charging and charged parties had been established before Bucalo published his endorsement, with the only action that might have dissuaded charging parties from proceeding on the charge being ratification of the addendum by the Zenith membership. That Bucalo failed or refused to pursue that ratification meant that the trial before the joint council would proceed, and no evidence suggests that the political endorsement affected the decision to move forward on the charge. Cf. Gonzalez, 2011 ESD 273 (June 3, 2011) (internal union charges “were directly related to and motivated by” the charged party’s conduct and therefore did not constitute prohibited retaliation under the Rules); Peete-Jackson, 2006 ESD 112 (February 27, 2006) (removal of shop steward from her position was the result of her dishonesty and failure to respond to requests for communication and not because of her protected activity).
Third, while Bucalo asserts that the basis for the internal charge against him was “frivolous” and that “no reasonable person could have made [the] determination” to charge him with and find him responsible for misconduct, we conclude that the defenses he presented bordered on the frivolous. Where the local union executive board followed an express and specific policy of deciding case-by-case whether to pay lost time to bargaining committee members and any limitations on such compensation, Bucalo was not free to disregard that policy by claiming that he possessed general authority to do as he saw fit. Nor can Bucalo argue with any force that the clear contract language he negotiated does not mean what it says, which is that the local union is required to pay lost time to bargaining committee members.
Fourth, we reject Bucalo’s assertion that the discussion at the joint council executive board meeting on July 6, three days before his trial, of the distribution of his personal newsletter and the resulting election protest was improper and demonstrated retaliatory animus by the joint council. The assertion is an attempt to paint over and excuse Bucalo’s own conduct with respect to the lost time provision, conduct that reasonably explains the charge brought against him. A member may not insulate himself from the disciplinary consequences of his actions merely by engaging in activity protected by the Rules.
Finally, we reject Bucalo’s contention that General President Hoffa’s failure to grant a stay of Bucalo’s suspension constituted retaliation under the Rules. No evidence demonstrates that the General President was aware of the stay request. Moreover, as we have stated, the merits of the case against Bucalo suggest that the imposition of discipline against him was appropriate and not motivated by the expression of his political views.
Accordingly, we DENY this 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:
Kathleen A. Roberts
Election Appeals Master
JAMS
620 Eighth Avenue, 34th floor
New York, NY 10018
kroberts@jamsadr.com
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, 1050 17th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kathleen A. Roberts
2015 ESD 42
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
braymond@teamster.org
David J. Hoffa
1701 K Street NW, Ste 350
Washington DC 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
Teamsters United
315 Flatbush Avenue, #501
Brooklyn, NY 11217
info@teamstersunited.org
Louie Nikolaidis
350 West 31st Street, Suite 40
New York, NY 10001
lnikolaidis@lcnlaw.com
Julian Gonzalez
350 West 31st Street, Suite 40
New York, NY 10001
jgonzalez@lcnlaw.com
David O’Brien Suetholz
515 Park Avenue
Louisville, KY 45202
dave@unionsidelawyers.com
Fred Zuckerman
P.O. Box 9493
Louisville, KY 40209
fredzuckerman@aol.com
Sam Bucalo
6158 Kingoak Drive
Cincinnati, OH 45248
sammo1245@aol.com
Teamsters Local Union 100
2100 Oak Drive
Cincinnati, OH 45241
sarahm@teamsterslocal100.com
Teamsters Joint Council 26
4632 Paddock Road
Cincinnati, OH 45229
Fax: (513) 242-8104
Dan Walsh
950 Duxbury Court
Cincinnati, OH 45255
djw4947@gmail.com
John Pegula
1434 Greendale Dr.
Pittsburgh, PA 15239
jpegula@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Suite 210
Ann Arbor, MI 48104
EllisonEsq@aol.com