Protest Decisions

              June 18, 1996

VIA UPS OVERNIGHT

James P. Hoffa

June 18, 1996

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI 48098

Kimberly Ann Funk

4832 N. 88th Avenue

Phoenix, AZ 85037

Richard M. Esquivel, Secretary-Treasurer

Teamsters Local Union 104

1450 S. 27th Avenue

Phoenix, AZ 85009

James P. Hoffa

June 18, 1996

Page 1

Re:  Election Office Case No. P-773-LU104-RMT

Gentlepersons:

James P. Hoffa, a candidate for general president, filed a protest pursuant to

Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Kimberly Ann Funk, member of Local Union 104, and  Richard Esquivel, secretary-treasurer of Local Union 104.  The protester alleges that

Ms. Funk violated the Rules by filing internal union charges, pursuant to the Local Union 104 bylaws and the IBT Constitution, against Jacqueline Edgmon, Jim Edgmon and Robert Justus, members of Local Union 104.  The protester alleges that Ms. Funk filed the internal union charges in order to retaliate against Ms. Edgmon and Mr. Justus because they had previously filed protests, pursuant to the Rules, against Ms. Funk.[1]  The protester further alleges that

Mr. Esquivel violated the Rules by notifying Ms. Edgmon, Mr. Edgmon and Mr. Justus that the Local Union 104 Executive Board had scheduled a hearing to consider the internal union charges filed by Ms. Funk.

James P. Hoffa

June 18, 1996

Page 1

                Mr. Esquivel denies that the charges filed by Ms. Funk violate the Rules.  He states that Ms. Funk’s internal union charges are broader in scope than her protest because, for example, the charges involve an allegation of “potential harm to Ms. Funk’s employment relationship.”

Regional Coordinator Jonathan Wilderman investigated the protest.

On February 5, 1996, Ms. Funk filed a protest, pursuant to Article XIV, Section 2 of the Rules, challenging the eligibility of six candidates for delegate nominated at the Local Union 104 nomination meeting held February 3, 1996.  Among the nominees challenged by Ms. Funk was Ms. Edgmon, who Ms. Funk claimed had not worked in the craft under the jurisdiction of the local union for 24 consecutive months prior to her nomination as required by the Rules.  As to Ms. Edgmon, the Election Officer ruled that although Ms. Edgmon was a full-time employee of the Operating Engineers, she had worked or actively sought employment at the relevant craft and, thus, was eligible to run for delegate.  See Funk, E-086-LU104-EOH (February 20, 1996).  On February 14 and 27, 1996, two of the candidates for delegate,

Ms. Edgmon and Mr. Justus, and Luis Ortiz, respectively, filed protests against Ms. Funk alleging that she violated the Rules by obtaining and including the nominees’ social security numbers in her eligibility protest.  See Justus, supra.  On February 26, 1996, Ms. Funk filed a protest against Messrs. Justus and Edgmon claiming they violated the Rules by contacting her employer, Southwest Administrators, and falsely accusing her of using employer records to obtain social security numbers for her eligibility protest.  See Justus, supra.

The Election Officer denied the protests filed by Ms. Edgmon, Mr. Justus and

Mr. Ortiz concerning Ms. Funk’s use of nominees’ social security numbers, determining that in filing her eligibility protest, Ms. Funk engaged in activity protected by the Rules.  Id.  The Election Officer granted Ms. Funk’s protest against Mr. Justus and Ms. Edgmon  alleging retaliation.  See id.  The Election Officer found that Mr. Justus and Ms. Edgmon made accusations to Ms. Funk’s employer without basis and in retaliation for Ms. Funk’s protected action of filing her eligibility protest.  She further found that the accusations continued even after Ms. Funk’s employer had investigated the accusations and cleared Ms. Funk.  Id.

James P. Hoffa

June 18, 1996

Page 1

While the pre-election protests were pending before the Election Officer, by letter dated February 29, 1996 to Local Union 104 Secretary-Treasurer Esquivel, Ms. Funk filed internal union charges against Mr. Edgmon, Ms. Edgmon and Mr. Justus.  Ms. Funk alleged that Ms. Edgmon, Mr. Edgmon and Mr. Justus violated provisions of Article XII of the Local Union 104 bylaws.  Specifically, Ms. Funk alleged that Messrs. Edgmon and Justus, by making allegations to her employer that she had improperly obtained and used social security numbers of local union members, violated a provision of Article XII of the bylaws stating, “I pledge not to divulge to non-members the private business of this Union, unless authorized to reveal the same.”  She alleged that by requesting that Southwest Administrators terminate her employment because of her conduct, the three violated another provision of the bylaws which states, “I will never knowingly harm a fellow member.”  She alleged that Ms. Edgmon has openly admitted to working with the Operating Engineers, Local Union 428, in violation of the provision in the bylaws stating, “No member shall engage in dual unionism or espouse dual unionism or disaffiliation.”

By letters dated March 27, 1996, Mr. Esquivel sent notices to Mr. Edgmon,

Ms. Edgmon and Mr. Justus that on June 22, 1996, the local union would convene a hearing on the charges filed by Ms. Funk.

Article VIII, Section 11(f) of the Rules 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.

An alleged violation of this section is sustainable only if there is some evidence that connects the protested conduct with a guaranteed right under the Rules.  See Passo, et al.,

P-273-LU705-CHI, et seq. (February 22, 1996); Hasegawa, P-318-LU174-PNW, et seq. (February 5, 1996). 

The protester argues that his protest is similar to that granted by the Election Officer in Crawley, P-098-LU988-PNJ (June 30, 1995), aff’d 95 - Elec. App. - 1 (KC) (July 14, 1996).  In that protest, Mr. Crawley alleged that then-International Vice President Gene Giacumbo  brought internal union charges against Mr. Crawley in retaliation for Mr. Crawley filing a protest against Mr. Giacumbo.  The Election Officer found that the internal union charges filed by Mr. Giacumbo were based on the very act of Mr. Crawley’s filing of a protest. 

Mr. Giacumbo specifically quoted allegations of the protest filed by Mr. Crawley, claimed they were “specious,” requested that he be reimbursed for all expenses incurred in defending himself against the protest and that Mr. Crawley be fined and suspended from membership for having made the allegations in the protest.  The Election Officer determined, “Since the content of a protest is absolutely privileged, a member cannot be lawfully be subject to internal union charges for having filed a protest.”  The Election Officer found that Local Union 988 independently violated the Rules by processing the charges filed by Mr. Giacumbo.  

James P. Hoffa

June 18, 1996

Page 1

The protester claims that the Election Officer should follow the precedent established in Crawley because the internal union charges in this case are “directly related” to the previously filed protest against Ms. Funk.   The facts of this case, however, present a very different situation than those in Crawley.  In Crawley, the internal union charges were brought because Mr. Crawley filed a protest.  The Election Officer concluded that the filing of a protest is absolutely protected by the Rules and, therefore, a local union cannot process internal union charges over the action of the filing of a protest by a member.  In this case, the internal union charges were filed because of alleged interference with Ms. Funk’s employment and allegations of dual unionism.   These allegations provide a basis for filing internal union charges unrelated to the protest filed by Messrs. Justus and Edgmon.  Filing a protest cannot insulate the protester from any complaint in another forum regarding the underlying conduct which gave rise to the protest.  Rather, to prove retaliation under the Rules, the protester must show that the adverse action taken against the protester was based on the exercise of a protected right under the Rules--here, the filing of a protest.

In Crawley, such retaliation was clear on the face of the internal union charges.  While the Election Officer acknowledges that a retaliation claim could be made without the protest forming the explicit ground for internal union charges, on the basis of this factual record, the Election Officer does not find the filing of these internal union charges in retaliation for the filing of a protest.

Accordingly, by filing internal union charges against Messrs. Justus and Edgmon,

Ms. Funk has not violated the provision in the Rules prohibiting retaliation, nor has Local Union 104 violated the Rules by setting the charges for hearing.  

The protester raises one additional argument against the local union’s processing the internal charges before it.  He contends that the charges against Messrs. Justus and Edgmon are a form of “double jeopardy” because the Election Officer has already found that these members violated the Rules when they contacted Ms. Funk’s employer.  Therefore, argues the protester, Ms. Funk cannot seek other relief for those actions in another forum.

The Election Officer has previously ruled that her jurisdiction over matters does not necessarily preclude the matter from forming the basis of other allegations of unlawful action in another forum, provided such consideration does not interfere with her responsibility to enforce and ensure compliance with the Rules.  Hence, in Gilmartin, P-032-LU245-PNJ (January 5, 1996), aff’d 95 - Elec. App. - 75 (KC) (February 6, 1996), the Election Officer ruled that the IBT could issue a constitutional interpretation on the activities of the Real Teamsters Caucus even though she had jurisdiction under the Rules to determine whether the same activities constituted a prohibited campaign contribution.

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 & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

James P. Hoffa

June 18, 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 N. Capitol Street, Suite 855, Washington, DC 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

Jonathan Wilderman, Regional Coordinator