Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: FELICIA WALKER,                      )           Protest Decision 2023 ESD 188

ANDRE STEELE,                            )           Issued: January 24 2023

TREMAYNE JOHNSON,               )           OES Case Nos. P-209-032522-NA,

LEROY KYLES, BLANCA            )           P-210-032522-NA, P-211-032522-NA,

AGUILAR, JOEL WOOD,             )            P-212-032522-NA, P-213-032522-NA,

DENNIE BEAVIN,                           )           P-215-032522-NA, P-216-032522-NA,

JARROD W. SKELTON,                )           P-217-032522-NA, P-218-032522-NA,

ANTHONY ROOTS,                       )           P-219-032822-NA, P-220-032822-NA,

EDIBRAY RODRIGUEZ,               )           P-221-032922-NA, P-222-032922-NA,

CYNTHIA RIVERA,                       )           P-223-032922-NA, P-224-033022-NA,

FRANCISCO ARZU,                       )           P-225-033122-NA, P-226-040222-NA,

WALTER WESTFIELD,                 )            P-227-040422-NA, P-228-040522-NA,

PLINIO CRUZ, STEPHEN            )            P-229-040722-NA

HANSON, SARAH HOOK,           )

DALA WATSON, RYAN                )

JANOTA, DIANE ORNELAS,       )

FABIAN LEON, JOSE LOPEZ,     )

                                                            )

Protestors.                                          )          

____________________________________)

            This decision resolves 21 post-election retaliation protests filed by persons employed either directly by the IBT as organizers or by local unions as lost-time or field organizers under reimbursement arrangements with the IBT.  This decision does not resolve the remaining 3 post-election retaliation protests filed by persons employed by the IBT who did not work as organizers.

After the instant 24 protests were filed in March and April 2022, respondent IBT moved to dismiss them, asserting the Election Supervisor lacked jurisdiction to investigate and decide all of them, and that many of the protests were untimely filed.  The IBT lodged this motion before producing evidence and witnesses the OES requested concerning the merits of any of the protests.  The Election Supervisor denied the IBT’s motion in Brady et al, 2022 ESD 187 (May 16, 2022), concluding he had jurisdiction under the Rules to consider retaliation protests filed post-election – indeed, post-inauguration – where the alleged motivation for the retaliation was protected campaign activity that occurred during the election campaign.  The Election Supervisor also held that the protests either were timely filed or that sound prudential reasons justified waiving the Rules’ time limit for filing them.  Election Appeals Master Jones affirmed the denial of this motion in Brady et al, 2022 EAM 24 (May 23, 2022).

Thereafter, OES sought evidence concerning the IBT’s motivations in terminating the employment of all 24 protestors.  The IBT, through General Counsel Ed Gleason, responded with a position statement with respect to all 24 protestors and some documentation concerning 23 of them.  It produced for interview one witness, Chris Rosell, who provided evidence with respect to the 21 protestors employed in an organizing capacity.  Election Supervisor Mark and Election Supervisor representative Jeffrey Ellison interviewed Rosell on July 21, 2022.  Thereafter, OES requested that the IBT, through Gleason, produce documents Rosell referred to during his interview, as well as additional evidence concerning the termination of the organizers and the other protestors.  Gleason promptly replied that he was no longer the attorney on the case, and he referred OES to Mike Feinberg, a lawyer in private practice, for further action on the investigation.

OES contacted Feinberg in early August 2022 and repeated its request for documentation and witnesses.  Weeks later, Feinberg submitted a 16-page letter that repeated in substance the motion to dismiss the protests the IBT had previously filed and the Election Supervisor had denied.  Feinberg’s submission did not produce any of the documentation OES had requested nor did it offer any witness for investigatory interview.  A subsequent communication from Feinberg stated expressly that the IBT would not produce “notes” that Rosell referred to in his interview, would not acknowledge the existence of such “notes,” and would not produce any additional witness in the investigation.  Feinberg repeated his demand that the protests be dismissed.

With the IBT having refused to produce potentially relevant documents identified by a witness, OES consulted with the office of the United States Attorney for the Southern District of New York.  The Final Order in United States v. International Brotherhood of Teamsters, 88 Civ. 4486, permits the United States to seek a court order compelling the IBT to comply with its commitments under the Final Order.  Cooperation by the IBT with protest investigations arising under the Rules is an obligation to which the IBT committed in the Final Order.  Such cooperation is an essential part of the democratic election process set out in the Election Rules.  The Rules create a structure for “fair, honest, open, and informed elections,” and the protest procedure has been integral to that structure since the first IBT International Officer election in 1991.  The office of the U.S. Attorney for the Southern District of New York undertook to prepare an application for an order compelling the IBT’s adherence to the Final Order.  OES prepared a declaration and numerous supporting exhibits for that application.  With the filing of the application looming, the Office of the U.S. Attorney contacted IBT counsel and advised him of that.

The U.S. Attorney’s Office was then contacted by Brian Kelly on behalf of the IBT.  Kelly is another lawyer in private practice and one who is unaffiliated with Feinberg.  Kelly urged forbearance while he consulted with his client.  Subsequently, Kelly dealt directly with Election Supervisor Mark.  Kelly acknowledged to the Election Supervisor the existence of documents to which Rosell had referred in his July 2022 interview, agreed to produce them, and agreed to produce Rosell for additional interview in light of the documents.  Kelly produced the documents in late December 2022, and Rosell’s second interview occurred soon thereafter, on December 27, 2022.  Once again, Election Supervisor Mark and OES representative Ellison conducted the questioning.[1]

The second interview provided critical evidence that allowed the Election Supervisor to evaluate the merits of the protests filed by the organizers.  Hence, this decision on those protests.[2]

The legal standard for evaluating retaliation protests.  Our analysis starts, as it must, with Section 101(a)(2) of the LMRDA, which grants “[e]very member of any labor organization … the right … to express any views, arguments, or opinions,” including on union business and “on candidates in a labor organization election.”  29 USC §411(a)(2).  Further, Section 609 of the Act prohibits a union or its representatives from actions “to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this Act.”  29 USC §529.  Violation of these rights may be remedied by civil suit.  29 USC §412.

            The foregoing provisions protect the membership rights of individuals, defined to include attending membership meetings, participating in the deliberations and voting upon business at such meetings, nominating candidates for union office, and voting in union elections. 

            The LMRDA does not, however, create or protect any right to hold union office by appointment under a union’s authority.  The U.S. Supreme Court, in Finnegan v. Leu, 456 U.S. 431 (1982), held that “discharge from [appointed] union employment does not impinge upon the incidents of union membership, and affects union members only to the extent that they happen also to be union employees.  We discern nothing in §609, or its legislative history, to support petitioners’ claim that Congress intended to establish a system of job security or tenure for appointed union employees.”  456 U.S. at 438.  The court elaborated on its holding as follows:

We need not decide whether the retaliatory discharge of a union member from [appointed] union office -- even though not “discipline” prohibited under §609 -- might ever give rise to a cause of action under §102.  For whatever limits Title I places on a union's authority to utilize dismissal from union office as “part of a purposeful and deliberate attempt . . . to suppress dissent within the union,” cf. Schonfeld v. Penza, 477 F.2d 899, 904 (CA2 1973), it does not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own.  Indeed, neither the language nor the legislative history of the Act suggests that it was intended even to address the issue of union patronage.  To the contrary, the Act’s overriding objective was to ensure that unions would be democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections.  See Wirtz v. Hotel Employees, 391 U.S. 492, 497 (1968).  Far from being inconsistent with this purpose, the ability of an elected union president to select his own administrators is an integral part of ensuring a union administration's responsiveness to the mandate of the union election.

Here, the presidential election was a vigorous exercise of the democratic processes Congress sought to protect.  Petitioners -- appointed by the defeated candidate -- campaigned openly against respondent Leu, who was elected by a substantial margin.  The Union’s bylaws, adopted, and subject to amendment, by a vote of the union membership, grant the president plenary authority to appoint, suspend, discharge, and direct the Union’s business agents, who have significant responsibility for the day-to-day conduct of union affairs.  Nothing in the Act evinces a congressional intent to alter the traditional pattern which would permit a union president under these circumstances to appoint agents of his choice to carry out his policies.

No doubt this poses a dilemma for some union employees; if they refuse to campaign for the incumbent, they risk his displeasure, and, by supporting him, risk the displeasure of his successor.  However, in enacting Title I of the Act, Congress simply was not concerned with perpetuating appointed union employees in office at the expense of an elected president’s freedom to choose his own staff.  Rather, its concerns were with promoting union democracy, and protecting the rights of union members from arbitrary action by the union or its officers.

456 U.S. 440-442 (footnotes omitted).

            In Sheet Metal Workers v. Lynn, 488 U.S. 347 (1989), decided 7 years after Finnegan, the Court found that a union violated the LMRDA by dismissing an elected business agent in retaliation for statements he made at a union meeting in opposition to dues increase sought by a union trustee.  In reaching this conclusion, the Court reaffirmed the rationale it stated in Finnegan for concluding that the LMRDA did not protect the employment rights of appointed (i.e., non-elected) union employees.  Id. at 352-55. 

            The Rules, at Article XII, adopt the LMRDA’s Bill of Rights provisions as well as the provision prohibiting union discipline for exercising rights protected by the LMRDA.  Through this article, protests alleging retaliation in violation of the LMRDA are cognizable under the Rules.

The Rules expand on LMRDA rights, however.  Article VII, Section 12(g) provides that “[r]etaliation 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.”  This provision is consistent with the LMRDA with respect to protection of a member’s rights against retaliation on account of that member’s speech and vote.  The provision goes further than the LMRDA, however, because it also protects officers and employees against retaliation for exercising such rights.

Protest decisions rendered under the Rules over more than 30 years have recognized that the Rules protect against retaliatory conduct that the LMRDA does not reach.  We summarized those decisions in Cobey, 2022 ESD 185 (April 5, 2022):

In contrast to the LMRDA, Election Appeals Master Conboy has instructed that “the Election Rules are broader than federal labor law and prohibit any retaliation relating to the exercise of members’ rights under the Rules, including the right to run for union office.”  Wsol, 95 EAM 17 (October 10, 1995), affirming Wsol, P-095-IBT-CHI (September 20, 1995).  Judge Conboy’s opinion rested on decisions of the Election Officer and Independent Administrator from the 1991 election.  Thus, in Parisi, P-1095-LU294-PGH (December 2, 1991), the Election Officer observed that, “[n]ormally, an appointed labor organization official may be removed at will, even if the only basis for removal is the desire of the appointing officer to have ‘his own people’ around him,” citing Finnegan.  However, the Election Officer and Independent Administrator held in the 1991 cycle that removal of even an appointed IBT member from his position with the union based on that member’s activities with respect to the 1991 IBT International Union officer election violated the Rules.  As applied to protestor Parisi, his “removal as the appointed Sergeant-at-Arms would violate the Rules if his removal was based upon his activities on behalf of nominated IBT General President candidate Ron Carey.”  See also Cremen, P-425-LU311-MID (March 11, 1991), aff’d, 91 Elec App 101 (March 19, 1991) (removal from steward position would violate Rules if motivated by delegate candidacy); DelGallo, supra (removal from sergeant-at-arms position would violate Rules if motivated by Rules-protected activity).

            Retaliation prohibited by the Rules was found in Phelan, P-711-LU550-NYC (April 24, 1996), aff’d, 96 EAM 184 (May 6, 1996), where an appointed steward was removed from his position because of his candidacy for alternate steward in support of the Carey slate.  The candidacy was characterized by the responsible union official as “embarrassing” to the local union leadership and a “conflict of interest” with the rest of the shop committee’s support for the opposing slate.  The Election Officer held that, “[w]hile substantive labor law generally permits labor union officials to remove appointees for political reasons, the Rules do not, if such action is based on a member’s exercise of rights under the Rules,” citing Wsol, Parisi, and Cremen.  Judge Conboy affirmed, declaring that the protestor’s “right to participate in the election process is protected by the Rules and cannot be the basis for any action against him.”  The union official’s statements when removing the protestor “had an overt election component and a clear coercive purpose.  They were therefore improper.”

            In Hoffa, P-812-IBT-NYC (August 16, 1996), the IBT was found to have engaged in prohibited retaliation by refusing to hire a qualified person as full-time organizer, where the stated reason was that “some people think you’re a Hoffa person.”  The Election Officer held that union officials may base employment decisions on “personality conflicts or political rivalry” but may not permissibly retaliate against a member seeking union employment because the member engaged in conduct protected by the Rules.  The hiring official “had no legitimate reason to link [the applicant’s] chance at getting full-time employment with [his] electoral preference.”  Doing so constituted prohibited retaliation.

            In Bundrant, 2005 ESD 19 (October 25, 2005), aff’d, 05 EAM 4 (November 15, 2005), the IBT’s action in transferring hundreds of members out of a local union constituted prohibited retaliation, where the reason for the transfers was the local union principal officer’s candidacy in opposition to the Hoffa slate.  Judge Conboy affirmed, holding that “the adverse action taken against [the principal officer] and his Local was in retaliation for that candidacy.”

            Ending appointed positions because of mere political opposition does not necessarily constitute prohibited retaliation, however.  In Wsol, supra, the IBT General President’s decision to remove a local union principal officer from an appointed position as chair of the Motor Carrier Labor Advisory Council was held not to violate the Rules.  Noting that the retaliation prohibition of the Rules “does not prohibit retaliation for exercise of any use of free speech, but only for the exercise of rights guaranteed under the Rules,” the Election Officer found that Wsol was removed because he opposed the IBT’s efforts to end area conferences, to raise dues, to create a dedicated strike fund, and other initiatives.  Judge Conboy concurred that removal of an appointee because of his opposition to IBT policy positions does not violate the Rules.  In affirming the Election Officer’s decision, the Election Appeals Master rejected the IBT’s position, under Finnegan, that “any member appointed … to an important policy position may be replaced at any time and for any reason” – even retaliation.  He reasoned to the contrary that “the Election Rules are broader than federal labor law and prohibit retaliation relating to the exercise of members rights under the Rules.”  Judge Conboy concluded that “Mr. Carey did not replace Mr. Wsol because Mr. Wsol was a candidate for union office, but rather, because Mr. Wsol opposed Mr. Carey’s policies.  Such an action by Mr. Carey does not constitute retaliation in violation of the Election Rules.” 

            Similarly, in Virtue, 2007 ESD 403 (July 9, 2007), the Election Supervisor found no retaliation where a member who stood as a candidate in the International officer election was removed post-election from his appointed position as International Representative.  Building on the Election Officer’s reasoning in Wsol, the Election Supervisor found that Virtue’s “policy disagreements” as expressed during the campaign were of similar character to those Wsol expressed concerning the Carey administration.  Just as the Rules did not prohibit Carey from removing Wsol from an appointed position for political reasons, so too the Rules did not bar Hoffa from removing an appointee who argued against the union governance positions the IBT administration was pursuing.  Judge Conboy affirmed, concluding that the Rules’ retaliation prohibition distinguished “between ‘improper’ retaliation and benign retaliation of the type acknowledged by the United States Supreme Court [in Finnegan] as permissible in the context of a post election democratic mandate to the victors to, in their discretion, clean house of political opponents.”  Virtue, 2007 EAM 82 (October 5, 2007).  Judge Conboy noted also that nothing in the record suggested impropriety or corruption in connection with the removal.  Absent proof that the removal would not have occurred “but for their adversarial campaigning,” the IBT had the right under Finnegan to remove Virtue as a purely political act.

            Cobey, pp. 4-6.

As these precedents show, distinguishing cases in which adverse action does not violate the Rules from those where it does requires analysis of the factual basis for the employment decision.  Thus, “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, however, 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.

Whether the evidentiary threshold a protestor must surpass in a particular case to establish retaliation is higher or lower depends, in part, on the nature of the employment position from which the protestor was discharged and the timing of that decision.  On the former point, the union employer enjoys great discretion under the Rules in deciding whom to employ in policymaking positions and in positions where the incumbent is responsible for implementing key policy decisions.  With respect to organizers, the Election Officer in Gasman, Case No. SR-02-IBT-EOH (May 25, 1999), held them to be representatives of “the General President’s policies to the rank and file, and the new General President is entitled to fill the position with those who he believes will represent him effectively.”  On the issue of timing, the Gasman holding relied in part on the contemporaneous decision of Garrett, SR-03-IBT-EOH (May 20, 1999), which articulated the need to distinguish under the Rules between personnel decisions made immediately after a change in administration an election and those occurring in the midst of a campaign.  Thus:

The Election Officer will afford the new administration more latitude now as it starts work and seeks to control IBT policy than the administration would or should have when the International officer election process is underway.  Conduct that may pass muster in this immediate post-election context could very well be a Rules violation if it happened in the midst of a union-wide election.  When a new administration starts, terminations and appointments may fairly be found to reflect policy choices: when an established administration in the midst of an election takes a job action, the conduct must be scrutinized strictly to determine whether it is being done to coerce members in the exercise of their political rights.

 Garrett, at 5.

Gasman elaborated on this distinction, reasoning that:  

Removal in furtherance of a policy objective, however, is different from taking a job action on account of a member’s participation (or failure to participate) in campaigning or other election-related activity. If these terminations and the restructuring of the Organizing Department had occurred while the union-wide election was going on and the facts showed an election-related political motive, the Election Officer could find retaliation and fashion a remedy.  See Eckstein, PR-135-IBT-SCE (August 14, 1998).

These precedents provide the framework for evaluating the protests involving organizing staff.

The evidence.  Most of the protests filed by organizers alleged that the individual protestor either contributed money to the Vairma-Herrera slate or an individual candidate on that slate or made a public endorsement to that end.  Such action clearly constitutes activity protected by the Rules.  Article VII, Section 12(a).  A few of the protests filed by organizers alleged that the individual refrained from contributing to or endorsing any candidate and was retaliated against for that neutrality.  The question of whether the Rules protect from retaliation a refusal to engage in campaign activity is one not previously decided in our precedents.  In light of the discussion below, however, we find it unnecessary to decide that issue, and we will treat as satisfied the first element of the claim of retaliation, that the protestor engaged in protected activity. 

            The second element – that each protestor suffered adverse employment action in the form of discharge from employment – is not disputed.

            This case turns then on the third element, which requires assessment of whether the protected activity was a motivating factor for the adverse action.  Unlike Phelan and Hoffa, both supra, where direct evidence of retaliatory motive was presented (in Phelan, a statement that delegate candidacy was an “embarrassment” to local union leadership; in Hoffa, the refusal to hire was attributed to the fact that “some people think you’re a Hoffa person”), the organizer-protestors here rely solely on inference.  They present no direct evidence – in the form of a statement from a decision-maker or a person in a position effectively to influence the decision, or other competent proof – and instead rely solely on the combination of their protected activity followed by the adverse action as sufficient to prove that the second follows causally from the first.

            It is not sufficient proof.  Instead, it raises an inference of nexus, requiring an investigation to determine whether such a nexus plausibly exists.  OES has undertaken such an investigation, which centered on close questioning of Chris Rosell, the person appointed by General President Sean O’Brien to serve as Director of the Organizing Department, as well as careful scrutiny of documents Rosell prepared when he was making staffing recommendations.  Over hours of questioning by the Election Supervisor and his representative conducted on 2 dates months apart, Rosell explained the substantial refocusing of the Organizing Department under the new administration when compared with the previous.  This refocusing had two significant elements.  The first was to increase membership density with already-organized employers, i.e., the percentage of employees in existing bargaining units who are union members.  Rosell stated that membership density was a goal generally but was especially important with certain employers that he identified in the course of the interview.  It is common sense, as Rosell explained, that increasing member density at an organized employer enhances the Union’s negotiating position vis-à-vis that employer. And every time the Union negotiates a good contract on behalf of its members, that contract serves as a tool to motivate organizing workers at other employers, whether they are already represented by the IBT but have comparatively lower membership density or are non-union entities that are organizing targets.  The first element of the new administration’s refocused Organizing Department is tied to the second, which is to shift organizing efforts away from campaigns, in particular long-running ones, that have not achieved success.

            Rosell told OES that he had long experience in the Organizing Department, first being employed there in 2004 and working scores of campaigns and employers over the ensuing 15 years or so.  He transitioned from the IBT Organizing Department to become organizing director of a West Coast local union in 2018.  Politically, he campaigned for the O’Brien-Zuckerman slate in the 2020-2021 electoral period and, with his organizing expertise, was brought in after the election to assist the officers-elect in formulating the new administration’s organizing strategy.  During the post-election transition period, Rosell was tasked with evaluating existing Organizing Department staff to assess whether they had the skills and motivation to be effective with the refocused organizing effort the IBT would pursue under the new administration.  He was chosen for this task given his previous extensive experience in the IBT Organizing Department.  Rosell told OES he had worked directly with the large majority of Organizing Department employees who were at that time employed by the IBT, despite his approximate 3-year absence from the department, and he had evaluations, informed by that work experience, of what each could (or could not) bring to organizing under the new administration.

            Rosell made his assessments with full understanding that organizing the unorganized was a key campaign issue in the 2021 election, as it is perennially in union elections.  The candidates for General President and General Secretary-Treasurer gave their views on organizing strategy in multiple candidate forums held in the immediate pre-election period, and their slates’ campaign literature highlighted the candidates’ position on the  need to organize the unorganized. 

            With the twin understandings Rosell had of the skills and abilities of existing Organizing Department staff as well as the direction the new administration sought for the Organizing Department, Rosell told OES he worked down the roster of existing staff to identify those to retain beginning in December 2021.  Based on his personal knowledge of each staff member’s abilities, Rosell noted each person’s organizing experience and the industries in which they had organized.  He evaluated each employee for his/her ability in the most basic organizing skill, which is to assess interest among a unit of employees for unionizing.  He also evaluated the employee’s ability to move a group of employees toward organizing, which he described as the next level up for an organizer.  He also assessed advanced abilities to build a campaign and to lead one.  He made notes of his assessments in writing, and OES reviewed those notes.  Those employees he sought to retain had positive work-related comments (e.g., “good organizer, follows the plan;” “go getter;” “does a really good job;” “seems to do a good job, very matter of fact, he tries hard;” “really good, easy to work with;” “came from [another union], loves to talk;” “bilingual, smart on digital stuff;” “stays on task.”).  Those he determined should be let go had negative work-related comments (e.g., “has several personal issues;” “not very good at organizing;” “is a nice guy [but] can’t run a campaign;” “is a know-it-all, loses worker support;” “issues with sexual harassment;” “very smart [but] had trouble with her on [campaign];” “not easy to work with, lots of problems;” “not interested in learning;” “disaster, could not assess correctly;” “is headache since Day 1;” “lazy.”)  Based on his assessments, Rosell said he made recommendations to transition team leadership as to which employees to retain.  He told OES that no one he recommended for retention was dismissed, and no one he recommended for dismissal was retained.

            Rosell was named Director of Organizing by the General President-elect in mid-February 2022, roughly 2 months after he was tasked with assessing which organizing staff should be retained but before the decisions were finalized.  As stated previously, the new administration took office March 22, 2022.  Rosell made final recommendations at a time when he understood that he would be the department head, with his success in that position riding in substantial part on the staff he chose to work under him.

            Of the organizer-protestors, Rosell described to OES discrete events for each that caused him to recommend they not be retained.  The events ranged from mishandled organizing campaigns that caused representation elections to be lost, to poor work ethic (returning to hotel early at end of organizing day, drinking alcohol to excess, using the hotel for inappropriate personal liaisons), to ineffective organizing (failing to document lead sheets, failing effectively to organize call sheets and route packets for house calls, failing to self-motivate to complete tasks and move the campaign forward, failing to establish organizing committees within target bargaining units, failing to train subordinate organizers in effective campaigning, failing to attend meetings, spending inordinate amounts of time away from task on sightseeing and social media, poor skills in assessing union interest among employees at target bargaining units, untrustworthiness, combativeness, poor collaborator skills, abrasiveness, experience only on campaigns that would be de-emphasized). 

            Rosell stated that the political leanings of most Organizing Department staff were well known,[3] but denied that political affiliation played any role that made a difference in his assessment of any employee’s skills for the refocused Organizing Department he would lead.  Indeed, the evidence shows that Rosell recommended retaining some organizers who had supported the Vairma-Herrera slate and they were retained in their jobs.  Similarly, one organizer who provided substantial financial support to the O’Brien-Zuckerman slate was recommended for dismissal and was dismissed.[4]   

            As noted, precedent establishes organizers as critical personnel in implementing the administration’s key policy of organizing the unorganized.  For this reason, the threshold protestors must surpass in demonstrating a nexus between their protected activity during the campaign season and their subsequent dismissals cannot rely merely on inference.  In the absence of direct evidence of prohibited retaliation, we accept the particularized reasons Rosell gave for recommending that each protestor not be retained as organizers.  We conclude there is insufficient evidence to establish that the IBT had a retaliatory motive for its employment decisions on the protestors.  Rather, the evidence establishes that the decisions were motivated by Rosell’s desire to assemble an organizing corps he believed would be most effective, based on their skills, abilities, and experience.  On this evidence, the protests fail.

            For these reasons, we DENY the retaliation protests of the organizer-protestors.    

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

            2023 ESD 188

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