Protest Decisions

November 29, 1995

VIA UPS OVERNIGHT

Slobodan Golubovic

November 29, 1995

Page 1

Slobodan Golubovic

5908 S. Western Avenue

Clarendon Hills, IL 60514

Frank J. Wsol, Secretary-Treasurer

Teamsters Local Union 710

4217 S. Halsted Street

Chicago, IL 60609

Thomas Zitt, Terminal Manager

Cassens Transport

3401 Liberty Street

Aurora, IL  60504

Slobodan Golubovic

November 29, 1995

Page 1

Re:  Election Office Case No. P-025-LU710-CHI - DECISION II

Gentlemen:

This pre-election protest was filed on May 2, 1995, pursuant to Article XIV,

Slobodan Golubovic

November 29, 1995

Page 1

Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Slobodan Golubovic, a member of Local Union 710.[1]  The protester alleges that his employer, Cassens Transport Company (the “Employer”) retaliated against him due to his candidacy for International convention delegate from Local Union 710 by discharging him assertedly because he had a “major chargeable accident” under applicable rules.  Mr. Golubovic advises that he has been a candidate for delegate to successive IBT conventions since 1988, and is currently a declared candidate for delegate.

The protester’s discharge was the subject of a grievance filed by the local union on his behalf, pursuant to the grievance procedure set forth in the collective bargaining agreement between the union and the Employer.  The Election Officer was advised that the matter had been scheduled for arbitration before the Central-Southern Conference Automobile Transporters Joint Arbitration Committee (“Central-Southern Arbitration Committee”).  By letter dated July 21, 1995, the Election Officer deferred determination of the protest pending arbitration.  On August 6, 1995, the Central-Southern Arbitration Committee ordered that the protester be reinstated with full seniority effective August 7, 1995.  However, his time off from the April 26, 1995 termination date was to be a suspension without pay or fringe benefits.  The matter is now ripe for consideration and determination by the Election Officer.

Mr. Golubovic maintains that his discharge was in retaliation for his participation in the delegate election process. He contends that his accident was not a “major chargeable accident” but was “cargo damage” within the meaning of the collective agreement, which would have entitled him to receive retraining instead of discipline.  He claims that the Employer afforded lesser discipline to employees involved in similar accidents.  He asserts that the Employer fabricated the estimate of the cost of damages caused by the accident, and falsified an accident report describing the location of the damage to the other driver’s car. 

The protester also alleges that Local Union 710 retaliated against him because of his candidacy for delegate by failing to represent him adequately in the arbitration concerning his discharge.  The protester alleges that the local union refused to provide him with documents allegedly showing that employees charged with similar accidents received lesser discipline.  He also contends that the local union refused to provide him with a transcript of the pre-arbitration hearing on his discharge held before the Wisconsin Joint Automobile Transporters Committee (“Wisconsin Joint Committee”) unless the protester paid for the transcript.

The local union responds that the Election Officer has no authority to interfere with the negotiated grievance procedure to change the remedy imposed by the arbitration committee.  As to the merits of the protest, the local union denies that it withheld information from the protester relating to his appeal.  The local union states that it did not obtain the files of other employees who received lesser discipline than the protester because they were not similarly situated to the protester in that the damages in each of their accidents amounted to less than $1,000.  With regard to the transcript of the appeal before the Wisconsin Joint Committee, the local union contends that the record would have hurt the protester’s grievance because in that proceeding, the grievant had admitted his failure to stop his car before crossing the path of the other vehicle involved in the collision.

Slobodan Golubovic

November 29, 1995

Page 1

The local union further argues that its effective representation is evidenced by the fact that at the first level of appeal on the grievance on May 31, 1995, the Wisconsin Joint Committee deadlocked with the union representatives supporting the grievance.  It notes that although the protester has been “politically active” for a number of years, the union has successfully represented him in prior grievances.

This protest was investigated by Regional Coordinator Julie E. Hamos. 

I.              Facts

On March 20, 1995, the protester was involved in an accident at the Employer’s Naperville loading yard.  The Employer obtained an estimate that the cost to repair the car driven by the protester would be $14,160.  The Employer’s investigation determined that the protester had a “major chargeable accident” and based on this finding, the protester was discharged, effective April 26, 1995. 

Local Union 710 Business Agent Michael J. Sweeney represented the protester in the grievance procedure concerning his discharge.  Prior to the arbitration, Mr. Golubovic wrote to Mr. Sweeney, by letter dated June 1, 1995, requesting copies of reprimands and suspensions issued by the Employer to four drivers whom the protester claimed were involved in accidents similar to his own, as well as the grievances filed by the local union on behalf of the drivers.  The protester also requested the transcript of the pre-arbitration hearing held before the Wisconsin Joint Committee.

By letter dated June 5, 1995, Mr. Sweeney replied that he had requested the information listed in the protester’s letter and would forward the information to him prior to the hearing.  As to the transcript, the business agent advised the protester that he would request the transcript if the protester paid a $150.00 fee to the Wisconsin Joint Committee.

The protester was not provided with the documents he requested.  On July 5, 1995,  the protester wrote to Mr. Sweeney reiterating his request for documents.  Mr. Golubovic refused to pay the fee for the transcript because he believed that the local union was responsible for the expense.  Mr. Sweeney never responded to the protester’s June 5 letter or provided the protester with the requested documents.

Mr. Sweeney represented the protester at the arbitration hearing over his grievance.  The protester was permitted to submit evidence that supported his position that the incident should be considered as “cargo damage.”  He provided the Central-Southern Arbitration Committee with the names of drivers whom he claims had been treated differently from him.  He stated that the Employer fabricated evidence.  The business agent argued that the grievant’s seniority justified rescinding the discharge.  The decision of the Central-Southern Arbitration Committee reads:

Slobodan Golubovic

November 29, 1995

Page 1

Based on the facts and evidence presented in this case, Mr. Goluboic [sic] was responsible for a “Major Chargeable Accident” under Article 40, Rule 1(a) of the Central-Southern Supplement; however, based on his length of service, he shall be reinstated with full seniority on Monday, August 7, 1995, his time off to be a suspension.  There shall be no back pay or fringe benefits allowed during the period of suspension.  This decision shall not set precedent as to discipline for “Major Chargeable Accidents.”

The protester returned to work in accordance with the decision of the arbitration committee.

II.              Retaliation Claim

Article VIII, Section 11 of the Rules affords every union member the right to run for office. Article VIII, Section 11(f) of the Rules prohibits any form of retaliation against a member for exercising his or her rights guaranteed by the Rules.  If the Election Officer finds that an IBT member has been disciplined or discharged in violation of the Rules, the Election Officer can order a remedy nullifying the discipline or reinstating the member with full back pay.  E.g., Mello, Case No. P-782-LU526-ENG (October 11, 1991).  The protester urges that notwithstanding the Central-Southern Arbitration Committee decision, the Election Officer should award him back pay and full fringe benefits because the Employer attempted to discharge him because of his candidacy for delegate.[2]

The protester has not alleged that the Employer has discriminated against him apart from the attempt at discharge.  The protester has failed to present evidence that contradicts the Employer’s conclusion after investigation that he caused $14,000 damage to a vehicle he hit in an accident in the Employer’s loading yard.  The protester has presented no evidence that he has received disparate treatment because of his election activities or that the Employer was unlawfully motivated in attempting to discharge him.  According to documentation presented by the protester’s local union, one of the employees whom he alleges was treated differently than him for a similar offense received a three-day suspension for an accident resulting in $600 - $900 damage.  There is also evidence that the Employer has discharged and been sustained in cases involving significant damage greater than that of the protester.  Based on the range of penalties imposed by the Employer and upheld in arbitrations, the Election officer does not find the discipline of the protester to be excessive.  Neither the Employer’s attempted discharge nor the resulting penalty imposed upon the protester--a suspension of approximately four months without pay or fringe benefits--is a disproportionate penalty for the accident caused by the protester.  The protester has produced no evidence that supports the view that in absence of his candidacy for delegate, the Employer would not have attempted to discharge him.  See Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F2d 889 (1st cir. 1981), cert.denied.  Thus, there is no basis for finding that the protester has been the victim of retaliation by his employer. 

Slobodan Golubovic

November 29, 1995

Page 1

III.              Breach of Duty of Fair Representation

To prevail in a claim that the union breached its duty of fair representation, the complaining party must demonstrate that the union acted in a manner that was “arbitrary, capricious, or discriminatory.”  See In re: Braxton, 91 - Elec. App. - 147 (SA) (May 10, 1991) (citing Thomas v. UPS, 890 F.2d 909, 920-21 (7th Cir. 1989)).

Notwithstanding his failure to respond to the protester’s July 5, 1995 letter, there is no evidence that Mr. Sweeney failed to adequately represent the protester.  The reason proffered by the local union for its failure to obtain documents requested by the protester, that the other accident cases were distinguishable based on amount of damage, is reasonable and certainly does not meet the criteria for breach of the duty of fair representation.  The union’s assessment that the transcript of the pre-arbitration hearing would not be useful if the arbitration is similarly acceptable. 

Based on the foregoing, the protest is DENIED.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Latham and Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax 212-751-4864

Copies of the request for hearing must be serveon the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:              Kenneth Conboy, Election Appeals Master

Julie Hamos, Regional Coordinator