January 24, 1996
VIA UPS OVERNIGHT
John Cuite
January 24, 1996
Page 1
John Cuite
14 Sellger Court
Dix Hills, NY 11746
Joseph Padellaro, Trustee
Teamsters Local Union 363
159-21 Cross Bay Boulevard
Howard Beach, NY 11414
Ron Carey, General President
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
John Sullivan, Associate General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
Susan Davis
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
John Cuite
January 24, 1996
Page 1
Re: Election Office Case No. P-270-LU363-NYC
Gentlepersons:
John Cuite filed a protest pursuant to Article XIV, Section 2(b) of the Rules for the IBT 1995-1996 International Union Delegate and Officer Election (“Rules”) against
Joseph Padellaro, trustee of Local Union 363, and General President Ron Carey. The protester alleges that the IBT officers infringed upon the political rights of the protester and others as guaranteed by the Rules by imposing a trusteeship upon Local Union 363, merging Local Union 363 into Local Union 819, and terminating the membership of the protester and others in Local Union 363, all to retaliate again them for their dissident views and to prevent them from running for delegate from the local union to the IBT convention.
Mr. Padellaro and Mr. Carey respond that the IBT has sought to preserve the bargaining unit which included the protester, and that its eventual actions eliminating
John Cuite
January 24, 1996
Page 1
Local Union 363 were not motivated by considerations relating to the IBT International delegate and officer elections. The IBT notes that it decided to merge Local Union 363 into Local Union 819 in September 1995, prior to learning that the protester and other Local
Union 363 members wanted to run for local union delegate.
The protest was investigated by New York City Protest Coordinator Barbara Deinhardt.
The protester is employed by Eugene Iovine, Inc., an electrical contractor who is a member of the United Electrical Contractors Association (“UECA”), a multiemployer collective bargaining agent. There was a long-standing dispute between Local Union 363 and International Brotherhood of Electrical Workers Local 3 (“Local 3”) over which union was the bargaining representative for employees of employers who belong to UECA. In April 1989, Local 3 filed a petition to represent UECA employees after a collective bargaining agreement between UECA and Local Union 363 expired. Local 3 won an election among UECA employees and was certified as their bargaining representative by the National Labor Relations Board (“NLRB”) on February 23, 1993. The United States Court of Appeals for the Second Circuit enforced the NLRB’s order on September 2, 1994. The IBT takes the position that this court decision eliminated all legal channels to protest Local 3’s certification, and that
Local Union 363 was thereby divested from representing the UECA employees.
The IBT placed Local Union 363 in trusteeship in February 1994 for violation of members’ rights under the International Constitution. At that time, as a result of the NLRB decision, a substantial percentage of its highest paid members were no longer represented by Local Union 363. This resulted in the union quickly becoming almost bankrupt. Following a year of assessing possible options for retaining its membership, the IBT General Executive Board voted in September 1995 to transfer the remaining non-UECA contracts to Local
Union 819, thus merging the union with Local Union 819. When the decision to merge the local unions was made, Local Union 363 carried a debt of more than $100,000. The IBT determined that with the loss of the UECA members, there were too few members to maintain the local union hall and staff and to otherwise function as a viable entity. The Local
Union 363 trustee discontinued membership meetings as of September 15, 1995 and in December 1995 issued withdrawal cards to the UECA employees now represented by Local 3.
The IBT states that the withdrawal cards were issued because the UECA employees are not employed at the craft within the jurisdiction of the local union and therefore the issuance of a withdrawal card is mandated by Article XVIII, Section 6(a) of the IBT Constitution, which provides:
When a member becomes unemployed in the jurisdiction of the Local Union, he shall be issued an honorable withdrawal card upon his request. If no request is made, an honorable withdrawal card must be issued six (6) months after the month in which the member first becomes unemployed, if he is still unemployed at that time.
John Cuite
January 24, 1996
Page 1
In mid-November 1995, the protester and a number of other Local Union 363 members wrote to the trustee, advising him that they intended to run for delegate and asking for a copy of the work-site list and the local union plan. Three weeks later, Local Union 363 members received the withdrawal cards. The IBT takes the position that the protester received a withdrawal card because he was no longer represented by Local Union 363 and did not maintain employment in a job represented by the local union. The timing of the decision to issue withdrawal cards, according to the IBT, reflects a “raging debate” about its options, such as whether to wait to see if Local Union 3 got a contract and if not, to try to become the UECA employees’ representative again. Upon determining that these were not viable options, the local union issued the withdrawal cards.
Conduct which is motivated by an alleged retaliatory purpose, under the Rules, is controlled by Article VIII, Section 11(f), which provides:
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.
The Rules thus prohibit retaliation for engaging in election-related conduct protected by the Rules. In Re: Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995). Alleged violations of this section are not sustainable, however, unless there is some evidence which connects, expressly or through reasonable implication, the protested conduct with a guaranteed right under the Rules. Giacumbo, P-100-IBT-PNJ (October 13, 1995). See also, Robbins, et al., P-013-IBT-SCE, et seq. (June 30, 1995), aff’d, 95 - Elec. App. - 3 (KC) (July 26, 1995). The power to impose a trusteeship and to merge local unions are “among the institutional functions of international unions.” Id. The Election Officer finds that the decision to issue a withdrawal card is similarly an institutional function of the International Union. See Giacumbo, P-177-IBT-PNJ (November 2, 1995), aff’d,
95 - Elec. App. - 38 (KC) (November 28, 1995) (citing Robbins, supra). The IBT’s explana-tion of its action does not constitute an unreasonable interpretation of the IBT constitution governing this function. Robbins, supra. See also Local 48 v. Carpenters, 920 F.2d 1047, 1052 (1st Cir. 1990); Lucas v. Bechtel Corp., 800 F.2d 839, 849-51 (9th Cir. 1986). In order to sustain a violation of the Rules, there must be proof that the exercise of such a legitimate internal union activity was based upon “irrelevant or invidious conditions and implemented to affect the election process.” Robbins.
In In re: Murphy, 95 - Elec. App. - 3 (July 26, 1995), aff’g Murphy, Case No. P-002-IBT-SCE (June 30, 1995), the Election Appeals Master stated:
[W]hile a merger of constituent local unions is a presumptively valid exercise of the IBT’s institutional functions, the Rules are violated if it is established that the mergers were meant to retaliate against opposition members and suppress dissent.
John Cuite
January 24, 1996
Page 1
Conversely, if the mergers were motivated wholly by legitimate reasons, then it is irrelevant whether the mergers impact adversely on a member (by restricting his chance to hold office or a position as a delegate) or result in a “dilution” of the smaller local union’s voting power to vote with the membership of a larger and purportedly politically adverse local.
Citations omitted.
No evidence has been submitted demonstrating any pretext to the IBT’s imposition of the trusteeship upon Local Union 363, its decision to merge the local union into Local
Union 819, and its decision to issue withdrawal cards to UECA employees who are no longer represented by Local Union 363. The protester does not dispute the facts supplied by the IBT to explain these actions. He asserts no reason that he is entitled to remain a member of Local Union 363.
Accordingly, 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 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
Barbara Deinhardt, New York City Protest Coordinator