May 7, 1996
VIA UPS OVERNIGHT
Daniel Green
May 7, 1996
Page 1
Daniel Green
25 Martha Eaton Way
Unit 203
Toronto, Ontario M6M 5B7
Executive Board
Teamsters Local Union 938
1194 Matheson Boulevard, E.
Mississauga, Ontario L4W 1Y2
Clarke Transport
Division of Newcap
Bowes Road
Concord, Ontario L4K 1B2
Daniel Green
May 7, 1996
Page 1
Re: Election Office Case No. P-461-LU938-CAN
Gentlemen:
A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election (“Rules”) by Daniel Green, a member of Local Union 938. Mr. Green alleges that Local Union 938, Local 419, and Clarke Transport retaliated against him and other former members of Cannet Freight because of his political activities. Mr. Green further alleges that Local Union 938 has failed to honor its duty of fair representation and breached Canadian labour laws. The Election Officer deferred this protest for post-election review pursuant to her authority under Article XIV, Section 2(f)(2).
Regional Coordinator Gwen Randall investigated the protest.
Daniel Green
May 7, 1996
Page 1
Article VIII, Section 11(f) of the Rules prohibits any retaliation against any IBT member by the union or its agents for exercising any right guaranteed by the Rules.[1] To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the adverse decision or conduct in dispute. The Election Officer will not find retaliation if she concludes that the union officer or entity would have taken the same action even in the absence of the protester’s protected conduct. Gilmartin, P-032-LU245-PNJ (January 5, 1996), aff’d, 95 - Elec. App. - 75 (KC) (February 6, 1996). See Leal, P-051- IBT-CSF (October 3, 1995), aff’d, 95 - Elec. App. - 30 (KC) (October 30, 1995); Wsol.
The investigation revealed that prior to October 1995 the protester worked for Cannet Freight (“Cannet”) and was a member of Local Union 419. In October 1995, Cannet was purchased by Clarke Transport (“Clarke”), whose employees are represented by Local
Union 938. The protester continued to work at the Cannet Freight facility until December 29, 1995. On that date, Clarke closed the Cannet facility and notified the employees that a general layoff would take place at the end of the work week due to a shortage of work. The notice stated that employees could contact Clarke in January 1996 about the availability of work. Mr. Green did so and worked two days during January on a casual basis.
The protester states that when he learned in October 1995 of Clarke’s purchase of Cannet Freight, he requested a transfer card from his local union to Local Union 938. His request was refused. Mr. Green received an honorable withdrawal card, which he did not request, from Local Union 419, dated January 16, 1996. He was also forwarded a receipt stating that his dues were paid through the month of December 1995. According to officers of Local Union 419, it is their policy to issue withdrawal cards to employees of companies which close down, even if the employees do not request withdrawal cards.[2]
Daniel Green
May 7, 1996
Page 1
In October 1995, Local Union 938 negotiated a new collective bargaining agreement with Clarke. It provided that prior employees of Cannet, such as Mr. Green, would be added at the end of Clarke’s seniority list. Mr. Green wanted to be dovetailed into the agreement as did many other former Cannet workers. Because there are already Clarke employees on layoff, as a result of being placed at the end of the seniority list, it is unlikely that the Cannet employees will called for work in the near future.
Mr. Green alleges that this treatment is discriminatory and motivated by a desire to retaliate against him for his political activities. The protester describes himself as a Hoffa supporter and a dissident. He alleges that the leadership of Local Union 938 deliberately negotiated the new agreement to prevent him from getting work in the local union.
While it is clear that the new collective bargaining agreement has an adverse effect on former Cannet employees, the protester has not demonstrated that the negotiators were influenced by a desire to punish him for his affiliations or activities regarding the delegate or International officer election. As a result, the protester’s request that the collective bargaining agreement be examined is not properly before the Election Officer.
The protester alleges that the activities of Local Union 938 violate Canadian labour law. As such, his allegations are more properly before the Ontario Labour Relations Board. Without evidence that the collective bargaining agreement was negotiated in a way to punish the protester for exercising rights guaranteed by the Rules, the allegations lay outside of the jurisdiction of the Election Officer.
Further, Mr. Green’s allegation concerning Local Union 419 issuance of a withdrawal card were addressed by the Election Officer in Green, P-314-LU938-CAN, E-073-LU419-EOH (February 12, 1996), aff’d, 96 - Elec. App. - 99 (KC) (February 21, 1996).
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.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Daniel Green
May 7, 1996
Page 1
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
Gwen Randall, Regional Coordinator
[1]Article VIII, Section 11(f) states:
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.
[2]Article XVIII, Section 6(a) of the IBT Constitution provides that “(w)hen a member becomes unemployed in the jurisdiction of the Local Union, he shall be issued an honorable withdrawal card upon his request.” Should the member fail to make such a request, the card “must be issued six (6) months after the month in which the member first becomes unemployed.”