Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: JASON PARKER,                          )           Protest Decision 2021 ESD 137

                                                                       )           Issued: August 13, 2021

Protestor.                                           )           OES Case No. P-156-062521-FW

____________________________________)

Jason Parker, a former member of Local Union 117 who is currently employed in a bargaining unit represented by the local union, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Local Union 117 violated the Rules by refusing his application to rejoin the union.

Election Supervisor representative Christine Mrak investigated this protest.

Findings of Fact

            Protestor Parker alleged that he was denied readmission to Local Union 117 because of his support for the O'Brien-Zuckerman 2021 slate.  The local union denies the allegation categorically, contending to the contrary that it refused his application because of his history of abuse directed at local union officials and his association with an anti-union organization.

            Parker is employed by the Washington State Department of Corrections.  Local Union 117 represents the bargaining unit Parker works in.   Parker’s membership history in recent years shows he opted out as a member in February 2016.  Thereafter, while a non-member, he was discharged from employment.  The local union won reinstatement for him through the arbitration process.  Upon returning to work in October 2017, Parker signed a membership application, and he remained a member until June 2019, when he opted out again.  He reversed course the next month, July 2019, signing a new membership application.  In May 2020, he opted out of membership once again.  In June 2021, Parker signed another membership application.

            After seeking legal counsel and requesting and obtaining permission from General President Hoffa, the local union rejected Parker’s most recent request for membership on August 6, 2021, advising him that “based upon your persistent and pervasive harassing and abusive conduct toward local union staff, as well as your admitted alliance with the Freedom Foundation, an organization that seeks to destroy labor unions.”

            The harassing and abusive conduct to which the local union’s denial of membership alluded was of longstanding.  It included repeatedly and persistently using abusive and vulgar language toward local union staff, referring to various staff members as “half-witted fucks,” “sick fucks,” “dumb,” their representation “utter feces,” and urging one to “step in dog shit.”  Further, he at times inundated such staff with dozens of text messages, phone calls, and emails daily, prompting the local union to adopt a special communications protocol for Parker only that required him to use either of two means of communicating with the union, by US mail (on paper and with envelopes and stamps the union provided) or by phone to a designated person.  Parker rejected the communications protocol.  His conduct of this nature was especially virulent during his last period of union membership, from July 2019 to May 2020.  On May 10, 2020, he sent 50 emails to local union staff in a 14+ hour span.  The next day, May 11, 2020, he opted out of membership.

            On June 13, 2021, 13 months after last opting out of membership, Parker emailed a membership application to the local union.[1]  The email message stated the following, in part:

I look forward to being a member of Teamsters Local 117 and building a strong union that can fulfil [sic] John Scearcy’s vision for worker empowerment and social justice!  I am looking to volunteer for what ever [sic] I can within the Union.  I strongly desire our CBA to become even stronger that it already is!

In-house general counsel for the local union replied to Parker’s email the next day, June 14, using the email address for him that is shown on the distribution list for this decision, stating the following, in part:

We are in receipt of your membership application.  We are seeking outside legal advice regarding your request for membership.  Once we have received that advice, I will respond to you.

Please note that from here forward, no Union staff member will receive or respond to any correspondence sent from the inflammatory and abusive email address you used to submit your membership application.

Parker responded to this information the same day, again using the offensive email address, that “since you are intentionally and discriminately [sic] holding my membership application when process [sic] my good standing date and time clock [sic] will be today’s date or I will seek legal remedies for obvious reason to an intelligent and experienced attorney as yourself.”

The local union’s general counsel sought a legal opinion on June 14 as to the obligation the local union had, if any, to accept into membership a person with “a long history of abuse and discrimination against union staff” who previously was placed on a special communications protocol “because of his persistent, unending harassing emails and texts.” 

On June 22, Parker sent a follow-up email, again using the offensive email address, which he addressed to the top two officers of the local union and two in-house lawyers.  In that email, he stated the following:

I am writing today to express another reason, a major reason, I want to be a Teamster 117 member.

I want to be a member so I can participate and have my voice heard and vote in this upcoming election.

I have a chance to positively try to invoke the change I desire to see in our local and at a larger scale IBT it's self [sic].  I want to vote for the OZ Slate.  I want to be able exercise my democratic right and help build the Union I desire.  Together we can make this a stronger and better Union.

            He filed the instant protest on June 25, 2021, alleging that the local union had not accepted his application for membership because of his intention to support the O'Brien-Zuckerman 2021 slate.

            On July 28, 2021, the local union asked that the IBT General Executive Board exercise its authority under Article IX, Section 3(b) of the IBT constitution “to deny membership in the International Union to any such applicant when it believes the interest of a Local Union or the International Union will be best served by so doing.”  The GEB did not exercise that authority.  Its counsel informed the local union that the local union had constitutional authority to deny membership to any person, provided the denial was exercised for a reason that was not unlawful.

            The local union concluded it had lawful authority to deny Parker membership.  On August 6, 2021, the local union’s general counsel emailed Parker to “advise you that Local 117 rejects your application for membership. This decision was made by Local 117 leadership based upon your persistent and pervasive harassing and abusive conduct toward local union staff, as well as your admitted alliance with the Freedom Foundation, an organization that seeks to destroy labor unions.”

Analysis

            Although Local Union 117 requested that the IBT General Executive Board deny Parker membership under Article IX, Section 3(b) of the IBT constitution, the local union has such authority itself under Article II, Section 2(h) of the constitution.  That provision addresses the authority of the International union or its subordinate local unions to refuse membership to individual applicants, stating the following:

Neither the International Union, nor any Local Union or other subordinate body, shall exclude or expel from membership or otherwise discriminate against any individual, or cause or attempt to cause any employer to discriminate against any individual, because of his race, color, religion, sex, age, physical or mental disability, national origin, sexual orientation, gender identity or any other legally protected group or class.

By enumerating the reasons for which a union body cannot permissibly exclude a person from membership, this provision implicitly grants the authority to reject membership for a person for any reason not enumerated.  In the usual circumstance, a local union is reluctant to refuse membership to a person because doing so may impact unit and union solidarity and will cause the local union to lose dues revenue.  However, the provision just cited nonetheless reserves to the union the authority to reject a person’s application for membership, provided the reason(s) motivating the decision to reject are not unlawful.

Nearly all of the reasons enumerated in Article II, Section 2(h) are outside the jurisdiction of the Election Supervisor.  However, we construe the final enumerated group – “or any other legally protected group or class” – to grant the Election Supervisor jurisdiction to determine whether a person has suffered retaliation under the Election Rules for activity the Rules protect.  Article VII, Section 12(g).  If a local union were to bar an applicant from membership because the applicant engaged or sought to engage in activity the Rules protect, we conclude that such action by the local union may violate the Rules, and we would have authority to remedy such a violation.

            To establish retaliation under the Rules requires three elements: 1) activity the Rules protect; 2) actual or constructive knowledge by the charged party of that protected activity; and 3) a showing that the protected activity was a motivating factor in the decision or the conduct at issue. McNally, 2016 ESD 237 (June 7, 2016).  However, the existence of a reasonable independent basis for the decision or conduct at issue is a defense to an allegation of improper motivation so long as it is not shown to be a pretext.  There can be no violation if the decision maker would have taken the same action in the absence of the protective activity.  Pope, 2000 EAD 39 (October 17, 2000); Hoffa, P857 (September 11, 1996), aff’d, 96 EAM 234 (September 19, 1996). Miner, 2005 ESD 1 (May 27, 2005); Bundrant, 2005 ESD 19 (October 25, 2005); Zuckerman, 2010 ESD 2 (June 7, 2010); Lytle, 2011 ESD 282 (June 23, 2011), aff’d, 2011 EAM 51 (June 30, 2011); Bucalo, 2015 ESD 42 (October 19, 2015), aff’d, 2015 EAM 2 (November 16, 2015).

            On the facts this protest presents, we find no retaliation under Article VII, Section 12(g). 

The long history of abusive and harassing communication Parker directed to local union representatives motivated the local union to adopt a communications protocol especially for him years ago.  Coupled with his historic effort to undermine the union’s goals, Parker’s abusive communications caused the local union to act promptly after receiving his June 13, 2021, application for readmission to notify him that it was deferring action on his application while it sought legal advice.  The internal communications within the union that followed showed that union officials were prompted to protect its representatives from abuse and the union membership from an individual who historically had sought to undermine the union’s goals.  Although the text of the email Parker sent with his application for readmission was benign, his action in registering an abusive email address and then using it repeatedly to communicate with the union showed he had not reformed.  For these reasons, we find that the local union’s decision to deny Parker membership status was motivated by its desire to protect its representatives and the membership generally from his behavior.

            Parker’s effort to recharacterize the union’s reluctance to accept his application – and its ultimate decision to reject it – as motivated to deny him the right to vote in the International officers election was made belatedly.  He raised it for the first time more than a week after he learned that the local union would not reflexively readmit him as it had done in the past.  We find no causal connection between the union’s decision to refuse him readmission and his claim to protected activity under the Rules.  We conclude that the local union’s action to deny him readmission was a reaction solely to Parker’s past and current abusive behavior and his past anti-union affiliation.

            For these reasons, 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.  Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i).  All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor.  Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Barbara Jones

Election Appeals Master

IBTappealsmaster@bracewell.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, all within the time prescribed above.  Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision.  A copy of the protest must accompany the request for hearing.

                                                                  Richard W. Mark

                                                                  Election Supervisor

cc:        Barbara Jones

            2021 ESD 137

DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

braymond@teamster.org

Edward Gleason

egleason@gleasonlawdc.com

Patrick Szymanski

szymanskip@me.com

Will Bloom

wbloom@dsgchicago.com

Tom Geoghegan

tgeoghegan@dsgchicago.com

Rob Colone

rmcolone@hotmail.com

Barbara Harvey

blmharvey@sbcglobal.net

Fred Zuckerman

fredzuckerman@aol.com

Ken Paff

Teamsters for a Democratic Union

ken@tdu.org

Scott Jenkins

scott@oz2021.com

Jason Parker

Jwparker33@gmail.com

John Scearcy

Teamsters Local Union 117

John.scearcy@teamsters117.org

Tracey Thompson

tracey@teamsters117.org

Christine Mrak

chrismrak@gmail.com

Deborah Schaaf

Dschaaf@ibtvote.org

Jeffrey Ellison

EllisonEsq@gmail.com