Protest Decisions

              September 20, 1995

VIA UPS OVERNIGHT

Frank J. Wsol, Secretary-Treasurer

Teamsters Local Union 710

4217 Halstead Street

Chicago, IL 60609

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

John J. Sullivan

Associate General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

Re: Election Office Case No. P-095-IBT-CHI

Gentlemen:

A pre-election protest were filed with the Election Officer pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).  By letter dated June 19, 1995, Frank Wsol, a member and Secretary-Treasurer of Local Union 710 in Chicago, Illinois, alleges that General President Ron Carey violated Article XIII of the Rules[1] by dismissing Mr. Wsol from his post as chairman of the Motor Carrier Labor Advisory Council (MCLAC) in a letter dated May 24, 1995.  Mr. Wsol alleges that his dismissal was in retaliation for his announced intention to run for International office on a slate in opposition to that of Mr. Carey.

Frank J. Wsol

September 20, 1995

Page 1

In response to the protest, the IBT argues that the protest is untimely.  On the merits, the IBT argues that Article XIII merely incorporates into the Rules certain rights from the Labor-Management Reporting and Disclosure Act (LMRDA), which does not bar the removal of appointed union officials with policy-making responsibilities.  Because of Mr. Wsol's opposition to the policies of Mr. Carey's administration, the IBT asserts that Mr. Wsol “no longer enjoyed the confidence of the General President.”

The investigation was conducted by Regional Coordinator Julie E. Hamos.

The MCLAC is a joint labor-management grievance committee established pursuant to a nationwide collective agreement between the IBT and employers signatory to the National Master Freight Agreement.  The General President of the IBT has the authority to appoint the head of all labor committees pursuant to Article XII, Section 2(d) of the International Constitution.   Article XII, Section 2(d) was as amended by a resolution of the General Executive Board dated March 7, 1993.  The resolution added the following language after the first paragraph of Article XII, Section 2(d):

  In circumstances where the General President deems it necessary, the General President shall have the authority to appoint the Union Chairperson of any joint arbitration and grievance panel provided for by master agreements established pursuant to and/or made part of any master agreement.  In such circumstances, the General President, in his discretion, may consider recommendations for such positions made by Local Unions and other affiliates whose members are covered by any such agreement.  The General President, as such and in his capacity as Chairperson of any national negotiating committee, is authorized to do all things necessary to implement this provision.

Mr. Wsol has served as chair of the MCLAC for some 15 years, having been appointed and reappointed by previous IBT presidents.   

  On May 24, 1995, Mr. Carey sent a letter to Mr. Wsol, informing him that he had been replaced, effective immediately.  No reason was given in the letter and the protester claims he has never been given a reason by Mr. Carey.

I.              Timeliness

Article XIV, Section 2(b) of the Rules provides that a protest must be filed within two (2) working days  “of the day when the protester becomes aware or reasonably should have become aware of the action protested or such protests shall be waived . . .”  For conduct occurring within the first 28 days after the promulgation of the Rules on April 24, 1995, any protest must be filed within thirty (30) days of the issuance of the Rules.  Article XIV,

Section 2(a).

Frank J. Wsol

September 20, 1995

Page 1

Although Mr. Wsol was notified of his dismissal by a letter from Mr. Carey dated

May 24, 1995, he did not file the instant protest until June 9, 1995.  The requirement to promptly file protests is an important part of the election process.  The short time limits were designed to ensure that alleged violations of the Rules would be quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy in the event a violation is found.  Nevertheless, the Election Officer has not treated time limits as an absolute jurisdictional requirement, but rather as a prudential restriction.  A failure to file a timely protest has thus been treated as a defect that can be waived by the responding party.  Here, the IBT has preserved its objection, and the timeliness issue must be resolved.

The protester makes reference to the uncertain status of the Rules at the time of the alleged violation.  However, there was nothing uncertain about the status of the Rules.  The previous Election Officer promulgated the Rules on April 24, 1995 to take effect the same day.  Article XVII.  A copy of the Rules was mailed that same day to, among others, each member of the General Executive Board and to the principal officer of every local union, joint council and state conference within the IBT.  The IBT further points out that on May 24, 1995, General President Carey sent a message by the TITAN electronic mail system to all locals, including Local 710, that “The Election Rules, by their own terms, were effective on April 24, 1995 and remain in effect unless the federal court rules otherwise . . .  Therefore, the International and all affiliates should continue to comply with the requirements of the Election Rules.”  Thus, there does not appear to be any credible basis for uncertainty about the Rules which would excuse the late filing of a protest by some 25 days.

At this early stage of the election process and given the heightened concern over allegations of retaliation activity, the Election Officer finds it will better serve the underlying purposes of the Rules to resolve the merits of this protest.  The Election Officer, therefore, will so exercise her authority.

II.              The Claim of Retaliation

Frank J. Wsol

September 20, 1995

Page 1

Article VIII, Section 11(f) of the Rules prohibits any retal­i­ation against anyone by the Union or its agents for exercising any right guaranteed by the Rules.[2]  Article XIII incorporates certain sections of the Labor-Management Reporting and Disclosure Act (“LMRDA”), “as applied to nominations and elections of convention delegates and alternate delegates and of international officers only . . . .”  Id.  Article XIII then goes on to incorporate Sections 101(a)(1) and (2) of LMRDA as to the election process.

The Rules provide greater protection than does LMRDA for claims of retaliation based on election-related conduct.  The Supreme Court has held that while LMRDA protects union members from retaliation for engaging in a protected free speech right, the statute does not restrict a union officer from removing appointed officials from office for political reasons.  In Finnegan v. Leu, 456 U.S. 431 (1982), several appointed business agents of IBT Local 20 campaigned in favor of the incumbent local president.  The challenger won the election and removed the business agents from office, believing that their loyalties would prevent them from effectively implementing the new president's program.  The Local 20 bylaws gave the president the authority to appoint business agents.  Id. at 433-34.  The discharged business agents sued under LMRDA.

The Supreme Court found that LMRDA protects the rights of individuals as union members, not as employees or appointed officers.  Id. at 437, 442.  Title I “does not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own.”  Id. at 441.  Noting that the purpose of LMRDA was to ensure democratically governed unions, the Court stated:

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.

Id.  Accord, Helmer v. Briody, 759 F. Supp. 170 (S.D.N.Y. 1991); Johnson v. Kay, 860 F.2d 529 (2d Cir. 1988).[3]

Frank J. Wsol

September 20, 1995

Page 1

However, during the last IBT elections, the Election Officer declined to uniformly follow Finnegan because of the “unique circumstances” of the Consent Decree and the election process mandated by it.  Parisi, Case No. P-1095-LU294-PGH (December 2, 1991).  In that case, the Election Officer found that the 1991-92 Rules would be violated if a member appointed as Sergeant-at-Arms for a local union had been removed for supporting a candidate in the International elections.  The respondent admitted that the protester’s performance of his duties as Sergeant-at-Arms were perfectly satisfactory.  However, the Election Officer found no violation because he determined that the protester had been removed for his activities in connection with the local election, a matter not within in the Election Officer's jurisdiction.

At the same time, the Election Officer has held that “[r]emoval from an appointed union position because of personality conflicts or political rivalry is not prohibited.”  Cremen, Case No. P-425-LU311-MID (March 11, 1991), affirmed, 91 - Elec. App. - 101 (SA) (March 19, 1991).  See also DelGallo, Case No. P-1042-LU294-PGH (November 14, 1991), affirmed, 91 - Elec. App. - 234 (SA) (November 25, 1991).  In Martin, Case No. P-010-IBT-PNJ (Aug. 17, 1995), the current Election Officer noted, “[R]estrictions on campaigning must not be read so broadly as to restrict the right and the responsibility of union officers to conduct their official business . . . .” Id. at 12.

Thus, a local union violates the Rules if it removes a member from an elected or appointed position in retaliation for engaging in election-related conduct protected by the Rules.  Article XIII of the Rules states, “Insofar as the foregoing sections of the LMRDA may regulate conduct unrelated to nominations or elections of Convention delegates and alternates or of International Officers, they are not incorporated into the Rules and shall not be enforced by the Election Officer.”

This limitation of the Election Officer’s authority is supported by Court opinions in this matter.  In United States v. IBT ("Ellis"), 3 F.3d 634 (2d Cir. 1993), the Second Circuit held that the Election Officer lacked authority under the 1991-92 Rules to order reinstatement for a member discharged from employment, because the Rules then in effect limited the Election Officer's remedial action where there was no showing that the improper discharge may have affected the outcome of the election.

              In the most recent decision in this case, the District Court approved all of the 1995-1996 Rules, including Article XIII, which “authorizes the Election Officer to enforce the rights and obligations contained in the LMRDA that pertain to the 1995-96 IBT election” (emphasis added).  United States v. IBT, No. 88 Civ. 4486 (DNE) (S.D.N.Y. Aug. 22, 1995) (slip op. at 16).  The District Court underscored the limits of the Court’s own jurisdiction - and thus, by extension, that of the Election Officer - by overruling an objection to the Rules by Local Union 890 that alleged that the Union’s constitutional method for choosing convention delegates would result in race and gender discrimination.  Denouncing such discrimination as “one of society's worst enemies” and “a crime against humanity,” slip op. at 48, the Court nevertheless found no basis for addressing the allegations, noting, “Unfortunately, however, the Consent Decree is not a panacea.”   Id.

Frank J. Wsol

September 20, 1995

Page 1

The Election Officer has considered whether she should exercise a broader scope of authority and remedy any allegation of retaliation for exercise of free speech rights, whether connected with the election process or not.  See In re:  Riley, 95 - Elec. App. -  4 (KC) (July 25, 1995) (slip op. at 4-5).  The Election Officer has concluded, however, that Article VIII, Section 11(f) 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.  As noted above, there is nothing in the Rules which protects all speech within the IBT - only the exercise of free expression in connection with the election process, as specifically so limited in Article XIII.  This limitation is consistent with that found by the Independent Administrator during the 1991-92 election.  In re: DelGallo, 91 - Elec. App. - 234 (SA) (November 25, 1991).

Therefore, it will not be a violation to remove a member from an appointed position if there was a basis for doing so independent of the election process.  See Wright Line, 251 NLRB 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).

Applying the above test, the protester here fails to show any violation of the Rules in the decision to remove him as chairman of MCLAC.  The position of chair of MCLAC is a policy-making post appointed by the General President by his authority under Article XII of the International Constitution.  Mr. Wsol has been an vocal critic of the Carey administration and its policies, independent of any plans he may have had to run for office or to campaign for or against any candidate.  Indeed, in a letter to Mr. Carey dated June 13, 1995, Mr. Wsol states that “it is fair to assume that my opposition to certain acts of your admin­is­tra­tion form the basis for your decision.”  He does not mention his candidacy, although as early as March 26, 1995, he informally told members of Local 710 of his intent to run for International Office.

Mr. Wsol’s decision to run for office and his criticisms of the Carey administration were not the only events preceding his removal as MCLAC chair.  In 1993, internal union charges were brought against Mr. Wsol and other members of the Local 710 Executive Board for giving a union-owned automobile to a retiring Local 710 officer.  On January 24, 1995, the IBT General Executive Board upheld the charges against Mr. Wsol and others for breaching their fiduciary duty.

Frank J. Wsol

September 20, 1995

Page 1

In February 1995, a member of Local 710, Nicholas Johnson, appealed to the General Executive Board from an adverse decision from the Local Union and Joint Council 25 on his internal union charges. Mr. Johnson claimed that Mr. Wsol retaliated against him for criticizing the Local Union in the IBT magazine, as a result of which Mr. Johnson lost his job with United Parcel Service.  The testimony against the Local included a member who heard the Local Union’s shop stewards say that after publishing his letter, Mr. Johnson would not get much representation from the Local Union if he ever got into trouble.  The appeal is still pending before the General Executive Board.[4]

In May 1995, another member of Local Union 710 filed charges with  Local Union 710, claiming that the Local Union’s negotiators had entered into an agreement with Roadway Express, an employer under contract with IBT, which diminished the protections for certain employees that were provided in the National Master Freight Agreement.  As chair of MCLAC, IBT argues that Mr. Wsol is responsible for enforcing the Master Freight agreement.

Mr. Wsol denies that any of the above incidents affords a valid basis for removing him as chair of MCLAC.  As to the gift of the automobile, he maintains that the Local Union complied with its bylaws.  He further claims that Mr. Carey knew of this matter since the charges were filed in 1993.  On the Nicholas Johnson case, Mr. Wsol points out that the Local Union secured the grievant’s reinstatement through arbitration.  On the Roadway Express agreement, Mr. Wsol contends that Local Union 710’s agreement provided better protection to employees than the clause in the National Freight Agreement.

The Election Officer finds that Mr. Carey reasonably believed that Mr. Wsol’s actions were incompatible with his responsibilities in representing the IBT as chair of MCLAC.  The record shows that IBT had an independent basis for questioning Mr. Wsol’s judgment and/or fitness for a policy-making position in view of the gift of a Union automobile to a retiring officer, and the prima facie case of retaliation against a member who criticized the Local Union in the IBT magazine.  Moreover, the General Executive Board's sanction against Mr. Wsol over the Union motor vehicles and the Johnson appeal to the General Executive Board took place before Mr. Wsol made public any intent to run for office.

Frank J. Wsol

September 20, 1995

Page 1

At the same time as Mr. Wsol’s dismissal, the General President also dismissed two other chairman:  Lester Singer, chairman of the Local Cartage Committee, Central Region, and John Mozena, chairman of the Over-the-Road Committee, Central Region.  Mr. Mozena is not a candidate for International office, although he considers himself to be an outspoken critic of the Carey administration.  He believes that his dismissal came about for two reasons: his attendance at a May 1995 meeting in support of James P. Hoffa, a candidate for General President, and for publicly calling the International “idiots” for asking him to disclaim interest in a jurisdictional dispute with another union.  In a letter to Mr. Carey on June 6, 1995, Mr. Mozena, states his belief that he was replaced “because my political views are different than yours.”

Mr. Singer was not formally a candidate in May 1995, although it was no secret at that time that he intended to run for office, and he has since announced his candidacy for International office. However, Mr. Singer believes that he was dismissed because he publicly spoke out in May 1995 against the elimination of state committees in the new Car Haul contract.  In a letter to Mr. Carey dated June 5, 1995, he ascribes his dismissal as due to “our conflicting political opinions,” but does not mention the election.

The evidence shows that Mr. Wsol was dismissed from an appointed policy-making position in which he served at the pleasure of the General President.  Further, the evidence fails to show that Mr. Carey was motivated by a desire to retaliate against Mr. Wsol for running for office.  Instead, it appears that Mr. Carey was motivated by Mr. Wsol’s consistent public opposition to the policies of the Carey administration.  Since “[r]emoval from an appointed union position because of . . . political rivalry is not prohibited,”  Cremen; DelGallo, the IBT did not violate the Rules in removing the protester from his appointed position as chair of MCLAC.

III.              The Alleged Threat

Mr. Wsol also alleges that Mr. Carey violated the Rules by making a physical threat against opponents.  The protester bases this allegation on a report of a speech made by Mr. Carey at the convention of Teamsters for a Democratic Union (“TDU”), at which Mr. Carey allegedly threatened to use a “two-by-four” against those that did not support his policies.  The protester states that he is “particularly concerned about and sensitive to physical threats” because he claims he was shot in 1990 because of his reform activities at the time.

Having reviewed the entire speech of Mr. Carey as reported in the TDU newspaper, the Election Officer finds that the reference to the two-by-four was purely metaphorical and in

Frank J. Wsol

September 20, 1995

Page 1

no way can be construed as an actual threat of violence.[5]  Federal labor law recognizes “that debate . . . should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.”  Linn v. United Plant Guard Workers, 383 U.S. 53, 62 (1966), quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964).  There is no evidence of any surrounding facts or circumstances which would cause anyone to believe that this remark was a literal threat of violent or illegal conduct.  Mr. Carey was exercising his own right of free speech and did not violate the Rules by his remarks.  In re:  Sullivan, No. 95 - Elec. App. - 2 (KC) (July 14, 1995).

For the foregoing reasons, 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.

Mudge, Rose, Guthrie, Alexander & Ferdon

180 Maiden Lane, 36th Floor

New York, NY  10038 

Fax (212) 248-2655

Copies of the request for a hearing must be served on 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 E. Hamos, Regional Coordinator