Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: JOSE LIZARRAGA,                      )           Protest Decision 2016 ESD 356

                                                                        )           Issued: December 30, 2016

            Protestor.                                           )           OES Case No. P-108-011716-FW     

____________________________________)                      

Jose Lizarraga, member of Local Union 396, 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 that Local Union 396 business agent Hector Delgado threatened and intimidated members, in violation of the Rules.  Further, the protest alleged that Republic Services discharged members because they supported Teamsters United.  

            Election Supervisor representative Michael Miller investigated this protest.

Findings of Fact and Analysis

Protestor Lizarraga had been a member of Local Union 396 for some ten years before filing this protest.  He has worked as a driver for Republic Services, a waste hauler in Long Beach CA.  At the time the protest was filed, Lizarraga intended to run for convention delegate on Richard Galvan’s Teamsters United slate; he subsequently was nominated for that position but was not elected. 

Lizarraga filed the protest here after he heard that business agent Delgado had circulated in Republic yards in Long Beach and Gardena CA and showed rank-and-file members a Facebook page of all the Teamsters United slate members and supporters for the local union’s upcoming delegates and alternate delegates election while they were on the job, making what Lizarraga said were veiled and threatening comments to them about the persons on the Facebook page.  Lizarraga claimed he heard from other witnesses that Delgado’s comments ranged from “you better be careful not to gather or be seen with this group,” or “I already have a picture of you in this group, so watch out for your job,” or “let me see if you are in this picture.”  Lizarraga stated that on January 14, 2016, he observed Delgado’s conduct in this regard first-hand, from a distance.  Thus, he said he saw Delgado show Pedro Jimenez something on his phone and said “you see, I already have you in the picture” with the “other” group, again making a veiled threat of future problems for Jimenez because of his association, perceived or actual, with the Teamsters United opposition slate.  Lizarraga did not actually see what Delgado was referring to on his cell phone with Jimenez, but assumed that it was the group picture of the Republic Waste Teamsters United supporters.  Nonetheless, Lizarraga said that “the feeling in the yards” was one of paranoia.  According to Lizarraga, members were keeping quiet and were obviously concerned about their job security. 

The second aspect of Lizarraga’s protest was that Delgado, under direction from local union president Jay Phillips and secretary-treasurer Ron Herrera, the lead officers at Local Union 396, failed to handle grievances and employee terminations for Republic employees Hector Becerra and Gabriel Luquin.  According to Lizarraga, Delgado and the Hoffa-Hall 2016 slate supporters within the local union retaliated against these two members by failing to represent them in HR disputes because they actively supported Herrera’s opponents in the local union’s delegates and alternate delegates election and the upcoming International officers election.  At the time the protest was filed, Herrera was a candidate both for local union delegate and for IBT vice president on the Hoffa-Hall 2016 slate. 

We address these allegations separately.

Our representative interviewed several witnesses with respect to Delgado’s alleged intimidation and coercion of members in the yard at Republic.  Thus, Pedro Jimenez, a rank-and-file member of Local Union 396 as a driver for Republic Waste in Long Beach for 30 years, told our representative that early in January 2016, Delgado approached him in the yard at Republic while he was working and showed him a photo of Lizarraga’s Teamsters United group.  Jimenez said Delgado told him he knew who this group was and that they were against the officers of Local Union 396.  Jimenez said he was left with the impression that he was on a kind of “watch” list.  According to Jimenez, Delgado insinuated that if Jimenez associated with the people in the photo, his job might be in jeopardy because the Teamsters United group was opposed to the current union administration.  Jimenez told our representative he reacted sheepishly to Delgado, not responding directly to his statement but rather going about his business. Jimenez said he was uncomfortable with Delgado’s comments because Delgado was his union-assigned business agent at Republic.

Luis Marquez told our representative that he, like Lizarraga, heard that Delgado repeatedly showed rank-and-file members a group photo of Teamsters United supporters, most of whom were Republic drivers.  He said that he witnessed Delgado do so with Jimenez on January 14, 2016 and heard Delgado state, “You are here in this picture.”  According to Marquez, Delgado’s tone was threatening.  Marquez could not identify what Delgado showed Jimenez, however.

Lizarraga identified three additional members to whom Delgado was said to have shown a photo and made a threatening comment.  Our representative interviewed each of them but none reported any contact of this nature with Delgado.

Delgado categorically denied to our representative even having or having access to a Teamsters United photo of supporters or candidates, and further denied showing such a photo to members employed at Republic.  He also denied questioning or making statements to them about their political support for Teamsters United candidates or opposition to the local union administration, further denying making statements or insinuations that they were being watched or should fear for their jobs.  Delgado agreed that he uses a tablet personal computer in his daily work as a business agent but stated that he keeps only contracts, work notes, grievances and related documents, and other union-related items on it.  He stated that he frequently shows members documents on his tablet but denied showing any Republic member a photo or other content of a political nature as alleged in the protest.  Delgado told our representative that he has been a Local Union 396 business agent for 22 years, with primary responsibility for waste haul employers; before coming to this local union he served ten years as an employee of the UFCW, working a similar position.  He stressed to our representative that over the years he made it a point to stay out of union politics, has not been a candidate on any slate and did not plan to participate in the upcoming electoral campaigns.

We DENY this aspect of the protest on two grounds.  First, we find insufficient evidence that Delgado showed partisan or political photos to any rank-and-file member at Republic while making coercive statements to them.  Of the four members the protestor identified to our representative as having been subjected to this conduct, three denied the allegation.  The fourth, Jimenez, stated that while he was shown a photo the allegedly coercive statements the protestor claimed Delgado made were not supported by Jimenez.  Thus, the protestor stated that Delgado said such things as “you better be careful” and “watch out for your job,” but Jimenez asserted that Delgado stated merely that he knew who the persons were in the photo and that they were opposed to the local union officers.  Jimenez’s evidence was that Delgado left him with an “impression” that he was “watched.”  In contrast, Delgado persuasively denied the conduct attributed to him.  While we recognize that coercion often may be subtle, we are unable to conclude on this record that Delgado interfered with the rights of any members under Article VII, Section 12(a) to support or oppose candidates of their choice.

The protest’s second allegation claimed “two members who have actively campaigned for our Teamsters United slate, Hector Becerra and Gabriel Luquin, have been discharged by Republic Services on pretexts” but in reality were dismissed “because of their support for Teamsters United in the delegate election.” 

The nominations meeting for Local Union 396’s delegates and alternate delegates election was held January 31, 2016; ballots were mailed March 3 and counted March 29, 2016.  Investigation showed Becerra was dismissed November 11, 2015 for conduct that occurred on October 2, 2015.  Becerra, a driver for some eight years prior to his dismissal, told our representative that on October 2, he was called into the general manager’s office at the Republic Long Beach yard and told to clock out and go home, on an allegation that he had not stopped backing his truck when ordered to do so by a yard boss.  Becerra told our representative he in fact had stopped.  Nonetheless, before returning to work following the incident, Becerra filed for “stress leave” and was off the job from the date of the incident to November 5.  When he returned to work on November 5, he was suspended for the October incident; the suspension was converted to a dismissal on November 17.  A grievance was timely filed protesting the dismissal on November 20, 2015.  Following a meeting with management on December 14, 2015 and internal union deliberations on the merits of the case, the grievance was withdrawn on or about January 19, 2016. 

The protest’s allegation was that the local union intentionally mishandled the grievance because of Becerra’s support for Teamsters United.  We examined the circumstances surrounding the dismissal, the grievance filed in response to it, and the decision to withdraw the grievance for retaliation prohibited by the Rules.  The discharge notice showed that Becerra was dismissed for insubordination.  Specifically, the notice informed Becerra that, “[w]hile being instructed by a member of management in the proper backing procedures you walked away despite being asked several times to wait so the conversation could continue.  You ignored the manager and left the area and ultimately the workplace.”  The work rule cited in the dismissal notice was “refusal to work as directed.”  The circumstances of the incident demonstrated that Becerra backed his truck improperly.  Instead of having the helper in his truck stand behind the vehicle to guide it, Becerra backed the truck without assistance.

Becerra attended the grievance meeting held between the company and the union on December 14, 2015.  There, Becerra was asked to explain what occurred during the October 2 incident.  He responded that he did not remember any of the details of the event while he was backing his truck with a helper sitting in the cab.  Becerra stated at the meeting that he recalled speaking with a second manager on October 2 and requesting medical attention, but he asserted he did not recall the incident that preceded it.

Following the grievance meeting, the company wrote the union denying the grievance.  By contract, the union had the option to pursue the grievance to binding arbitration.  It referred the matter to legal counsel for evaluation of the merits of the case and the likelihood of success at arbitration.  Legal counsel met with Becerra and Delgado to discuss the case on January 11, 2016.  Counsel recommended that the grievance be withdrawn, citing first that the facts showed Becerra refused to work as directed, in violation of work rules.  The opinion letter stated, “The fact that Becerra, when told by a supervisor to use his helper when backing up, stopped working, walked away and refused the supervisor’s direction to stop and talk to him, most certainly falls within this category” of “refusal to work as directed.”  Of equal concern to counsel was Becerra’s unwillingness to cooperate with the company or the union during the investigation and grievance processing.  Counsel wrote that “when you [Delgado] and I met with him [on January 11, 2016], he for the first time told us that on the day in question, he had asked the helper to spot for him, but that the helper refused.  When I asked why he didn’t tell the Company that at the grievance meeting, he said he did not remember at that time.  He then wanted to know why the Union had never spoken to the helper, and I told him because he had never mentioned the helper refusing to spot for him.  When I asked who the spotter was so we could try to interview him, he told us it was our job to find that out; when [I] asked him if he remembered the spotter’s name, he refused to answer.”  Becerra’s failure to cooperate was not limited to refusing to detail the incident and provide the name of the helper.  According to counsel’s letter, “[t]he meeting ended with him informing us that he did in fact have other information, but would not be giving it to us.”  Based on a review of the circumstances of the case, counsel opined that the union would not prevail in arbitration and recommended that the grievance be withdrawn.

Against this evidence, Becerra told our representative that Delgado failed to represent him because Delgado did not like the fact that Becerra had campaigned for the Teamsters United slate.  Becerra asserted that Delgado told him explicitly that he would not help Becerra because Becerra was supporting Teamsters United.  Delgado denied making such a statement to Becerra or failing to represent him fairly and diligently.  We do not credit Becerra’s allegation in this regard.  We credit Delgado’s denial of the allegation.

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.  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.

For the purpose of our analysis here, we are willing to accept that Becerra satisfied the first element of the retaliation claim because of his support for Teamsters United, activity protected by the Rules, even though the dismissal, the filing of the grievance, and the grievance meeting with the company occurred months before ballots were mailed in the local union’s delegates and alternate delegates election 

We are also willing to accept that Becerra satisfied the second element of the retaliation claim because Local Union 396 opted not to pursue his discharge grievance to arbitration.  We will construe this decision as action adverse to Becerra.  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). 

On the critical third element of the retaliation analysis, however, the evidence does not support that Becerra’s protected activity was a motivating factor in the company’s decision to dismiss him or the union’s decision not to arbitrate his grievance.  Rather, we conclude that Becerra committed misconduct on October 2, 2015 which, absent a reasonable explanation from Becerra and supporting evidence from his helper, justified his dismissal and the union’s decision not to pursue the case to arbitration.  Becerra failed or refused to provide the evidence that would recast his conduct as innocent or justifiable.  For these reasons, we find there is no causal link between Becerra’s protected activity and the company’s discharge of him or the union’s decision not to arbitrate his discharge grievance.

Accordingly, we DENY the aspect of the protest that alleged impermissible retaliation against Becerra.

Luquin, a driver for more than 21 years before his dismissal, told our representative that he was terminated on January 11, 2016 for a false statement.  Luquin said the employer accused him of falsely stating on December 23, 2015 that he did not receive a Christmas present from a customer when the company claimed he did receive such a gift and hid it under the driver’s seat of his truck.  Employer policy prohibits drivers from receiving gifts from customers on their routes.  Luquin timely filed a grievance protesting the dismissal on January 15, 2016, and he and Delgado met with the company on February 3, 2016 to discuss the grievance.  Luquin told our representative following that meeting that he was satisfied with the representation Delgado provided.  Through subsequent efforts of the union in the grievance procedure, Luquin was reinstated to employment with Republic.

We are willing to accept that Luquin engaged in protected activity by supporting Teamsters United, satisfying the first element necessary in a retaliation case.  However, the second element – adverse action – is not satisfied, because Delgado actively represented Luquin in the grievance process, winning reinstatement for him, and Luquin was satisfied with that representation. 

Accordingly, we DENY the aspect of the protest that alleged impermissible retaliation against Luquin.

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, 34^th 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 17^th 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

            2016 ESD 356

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