Protest Decisions

March 6, 1997

VIA UPS OVERNIGHT

Kenneth Daugherty

March 6, 1997

Page 1

Kenneth Daugherty

8336 Kenwood

Romulus, MI  48174

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Robert Muehlenkamp

Director of Organizing Department

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Aaron Belk, International Vice President

  and Exec. Asst. to the General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, D.C.   20001

John Sullivan, Associate General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Bradley T. Raymond

Finkel, Whitefield, Selik, Raymond,

  Ferrara & Feldman

32300 Northwestern Highway, Suite 200

Farmington Hills, MI  48334

Patrick J. Szymanski

Baptiste & Wilder

1150 Connecticut Avenue, N.W., Suite 500

Washington, DC 20036

Kenneth Daugherty

March 6, 1997

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Re:  Election Office Case No. P-1345-IBT-NYC

Gentlemen:

Kenneth Daugherty, a member of Local Union 337, filed a protest pursuant to

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Article XIV, Section 3 of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against the IBT, General President Ron Carey and Director of Organizing Robert Muehlenkamp.[1]   The protester alleges that his employment as an International organizer was terminated in December 1996 in retaliation of his support for James P. Hoffa in the recent International officer election and for providing evidence in a previous protest.  In a separate letter dated January 21, 1997, Mr. Daugherty alleges that he was further retaliated against by having his retirement benefits frozen.

The protester was among those who provided evidence to the Election Officer in connection with the investigation of Hoffa, P-812-IBT-NYC (August 16, 1996).  The decision noted that several persons spoke with the investigators with the understanding that they were not to be identified, fearing retaliation.[2]

The IBT’s position is that the protester voluntarily resigned in June 1996.  Due to administrative errors, however, the protester continued to be paid his salary until

December 1996, when the IBT discovered the error.  Thus, the IBT denies that the protester’s employment was terminated in December, but rather in December the IBT finally effectuated his June resignation.  Therefore, the IBT states that the protester was not retaliated against due to his statements during the investigation of P-812 or because he supported a particular candidate for International office. As to the allegation about retirement benefits, the IBT contends that Mr. Daugherty’s benefits are being processed in the same way as any other retired or terminated IBT employee and denies any attempt to “freeze” his benefits.

The protest was investigated by New York City Protest Coordinator Barbara C. Deinhardt.

The investigation revealed the following:  Mr. Daugherty has had approximately

25 years of experience as an organizer for IBT local unions and the International union.  Since 1992, Mr. Daugherty had served on the permanent IBT staff as an organizer.  On the evening of June 17, 1996, four days before he gave a statement to the Election Officer in connection with P-812, the protester faxed a letter of resignation to International Vice President and

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Executive Assistant to the General President Aaron Belk.  The letter provided, in pertinent part, as follows:

This letter will serve as my formal resignation from the I.B.T.  I currently have vacation time earned on file which I would like to take effective immediately.  My resignation would be effective upon completion of my earned vacation.

The reasons for this decision are basic, I cannot agree with the direction our department has taken in the last two years, nor can I tolerate the mental strain and stress that we work under.  I respectively [sic] request your approval regarding my vacation.  I would like to thank you for your efforts and understanding of the day to day life of an organizer.

  Organizers are considered part of the general president’s staff.  One of the duties of Mr. Belk is to process the expense reports for employees on the general president’s staff.  Due to this responsibility, Mr. Belk was familiar with Mr. Daugherty’s name, but he had never met the protester or had any direct conversation with him.  A few hours after Mr. Belk received the letter of resignation on the evening of June 17, 1996, he placed a call directly to the protester and asked him why he had resigned.

In response to this question, the protester asserts he told Mr. Belk that if “someone didn’t agree with Muehlenkamp’s political agenda, they were on the outs” and that he would not come back to work if he had to “work for Muehlenkamp.”  According to the protester, he told Mr. Belk that he “feared retaliation from Muehlenkamp for speaking out against him to Belk.”  Mr. Daugherty asserts that Mr. Belk told him his resignation was “unnecessary” and that the protester was one of the “best organizers” on staff.   Mr. Daugherty recalls Mr. Belk stating that he also had “differences” with Mr. Muehlenkamp and that after the election,

Mr. Muehlenkamp would likely no longer be director of organizing.  Mr. Daugherty states that Mr. Belk then offered to further discuss the resignation with Mr. Daugherty after “the convention” and “in the meantime, he would just hold my resignation” to give Mr. Daugherty an opportunity to think about it. 

Mr. Belk’s recollection of this telephone call is that Mr. Daugherty objected generally to Mr. Muehlenkamp’s supervision and particularly to the reporting procedures in the department.  Mr. Daugherty also expressed frustration with being assigned to organizing efforts outside his area of expertise and that he was tired of working with certain other staff members.  Mr. Belk does not recall Mr. Daugherty raising the subject of Mr. Muehlenkamp’s “political agenda” during the conversation.

Mr. Belk denies stating anything about the nature of the protester’s performance or about holding the resignation letter.  He told the protester that he was “surprised” to receive the resignation because he had never heard any complaints from or about Mr. Daugherty. 

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Mr. Belk states that they discussed the protester’s severance and vacation pay and Mr. Belk encouraged Mr. Daugherty to speak with Howard Edwards regarding these items.[3]  Mr. Belk told Mr. Daugherty that he would forward the resignation letter to Mr. Muehlenkamp the next morning.  The investigation revealed that Mr. Belk forwarded the resignation letter to

Mr. Muehlenkamp the next day.

A few days after receiving the resignation letter, Mr. Belk discussed the protester’s resignation during a telephone conversation initiated by Tom Burnette, president of Local Union 19 in Grapevine, Texas.  Local Union 19 represents workers employed in the airline and aerospace industries, an industry in which the protester asserts he has special organizing expertise.  Mr. Burnette told Mr. Belk that he had heard about the protester’s resignation. According to Mr. Burnette, Mr. Belk remarked that “we can’t lose Ken, he’s the best we got.”  Mr. Burnette states that Mr. Belk proposed that Mr. Daugherty could report directly to Mr. Burnette and that Mr. Belk would have Mr. Daugherty assigned to him by August 2. 

Mr. Burnette states that he questioned Mr. Belk about Mr. Muehlenkamp, stating that he did not think Mr. Muehlenkamp would permit an organizer to report directly to a local president, thereby bypassing Mr. Muehlenkamp.  According to Mr. Burnette, Mr. Belk stated that

Mr. Muehlenkamp was just an employee but that Mr. Belk was an International vice president.  Mr. Burnette states that Mr. Belk suggested that the protester could use his accrued vacation time until he was reassigned and that the protester would have to rescind his resignation.

Mr. Belk recalls the conversation with Mr. Burnette but disputes Mr. Burnette’s recollection of it.  Mr. Belk states that Mr. Burnette suggested that the protester be assigned directly to him as a project organizer to work on certain airline industry organizing campaigns.  Mr. Belk states he told Mr. Burnette that this arrangement would have to be accomplished through the organizing department and Mr. Muehlenkamp.  Mr. Belk offered to discuss

Mr. Burnette’s stated need for an additional organizer at the Convention, scheduled to take place the following month.  Mr. Belk specifically denies promising Mr. Burnette that he would assign the protester to Texas in August or at any other time or that he would or could agree to assign the protester to Texas over Mr. Muehlenkamp’s objection.  He also denies telling

Mr. Burnette that the protester should tender a recision of the resignation.

  According to Mr. Belk, he had no further conversations with Mr. Burnette regarding the protester until mid-December.  Mr. Burnette states that he spoke to Mr. Belk once after the convention to congratulate him on his nomination.  When Mr. Burnette mentioned his interest in getting Mr. Daugherty into Texas, he contends that Mr. Belk stated he would “get with Muehlenkamp” about it.

In June 1996, after the resignation letter was received, Mr. Belk also had a discussion regarding Mr. Daugherty with Ray Bening, Director of the IBT’s Airline Division. 

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Mr. Bening called Mr. Belk and requested that Mr. Daugherty be transferred to the Airline Division.  Mr. Belk states that he gave the same advice to Mr. Bening that he had given to Mr. Burnette, that any such assignment would have to go through Mr. Muehlenkamp. 

Mr. Belk stated that he would have “no problem” with the proposed assignment if

Mr. Muehlenkamp, Mr. Bening and Mr. Daugherty were in agreement.  Mr. Bening called Mr. Belk a few more times to inquire about getting Mr. Daugherty into the Airline Division.  On each occasion, Mr. Belk referred him to Mr. Muehlenkamp.

Mr. Bening did, in fact, have a subsequent conversation with Mr. Muehlenkamp about assigning Mr. Daugherty to work with the Airline Division in Texas.  Mr. Bening states that Mr. Muehlenkamp had an angry reaction to the suggestion and made clear that he would fight against Mr. Daugherty’s reemployment.  In subsequent conversations with the protester,

Mr. Bening stated to him that he had no authority to hire anyone.

Four days after his resignation, Mr. Daugherty provided an affidavit to the Election Officer in which he stated that he was no longer an International organizer for the IBT.  Regarding his conversation with Mr. Belk, he stated:  “The VP Aaron Belk asked me if I would reconsider and come back if I didn’t have to report to Bob Muehlenkamp.  I hear, though, that Muehlenkamp said he would go right to the general president to make sure I stayed gone.”  Mr. Daugherty did not state that his resignation was “on hold.”

Ten weeks after the resignation letter, on August 29, 1996, the protester faxed

Mr. Belk a second letter stating in pertinent part that “per our earlier conversation, I have decided to rescind my resignation.”  After he sent the letter, Mr. Daugherty never received any communications or acknowledgment from Mr. Belk or from Mr. Muehlenkamp regarding this second letter or assigning him any work. When Mr. Belk advised Mr. Muehlenkamp of the second letter rescinding the resignation, both men were confused by the letter of rescission because they assumed the protester had not been employed by the IBT for over two months.  Therefore, both Messrs. Belk and Muehlenkamp thought the rescission was ineffectual and they did not take any action on the August 29, 1996 communication from Mr. Daugherty.

The protester had submitted his expenses for May and June 1996.  In July,

Mr. Daugherty contacted Mr. Muehlenkamp’s office to arrange for their payment.  The expenses were not paid, but in October an employee on Mr. Muehlenkamp’s staff called the protester’s house and talked with his wife about these expenses, which amounted to approximately $700.  The protester states that his wife was informed that these expenses would not be paid until Mr. Daugherty returned a certain file relating to a specific organizing campaign.  Mr. Muehlenkamp states that IBT policy is that an employee who quits or is terminated is not paid final expenses until all the files are returned.  The protester called

Mr. Muehlenkamp’s office and explained to the employee who answered that he did not have the file and informed her where it could be found.  The expenses were thereafter paid.

Mr. Belk received a call from Mr. Burnette in mid-December.  Mr. Burnette renewed his request to have the protester assigned to the airlines-organizing campaigns and asked

Mr. Belk “to put politics aside” now that the election “was over.”  According to

Mr. Burnette, Mr. Belk stated that the protester could not be assigned to Texas because he had

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quit.  Mr. Burnette then told Mr. Belk, “Like hell he did.  He’s still on the payroll.”  At this point, Mr. Belk ended the conversation by stating he would get back to Mr. Burnette.

Mr. Belk and Mr. Muehlenkamp at this point discovered that Mr. Daugherty had been continuing to receive his regular salary from the IBT until December 1996.  Both deny any knowledge that the protester was being paid prior to being so advised by Mr. Burnette in mid-December.

The evidence indicates that no one forwarded the June resignation letter to the Human Rights Department and therefore, the payroll department was not notified of the job action until after Mr. Belk’s mid-December telephone conversation with Mr. Burnette.[4]  Subsequent to his mid-December conversation with Mr. Burnette, Mr. Belk notified Mr. Muehlenkamp that the protester was still on the payroll and steps were then taken to formally terminate the protester’s employment effective December 1, 1996.  Mr. Daugherty’s personnel file, maintained under Mr. Edwards’ supervision, contains a memorandum dated December 18, 1996 to Mr. Edwards from Mr. Muehlenkamp referencing the protester’s letter of resignation and stating that it had been lost.  The memorandum also states:

It was clear to Ken Daugherty that he had resigned and we had accepted his resignation.  Due to administrative errors here, Personnel was never informed that Daugherty should no longer be on the IBT payroll.

Mr. Edward’s placed another memorandum in the protester’s personnel file attributing the failure to process the resignation to “an administrative snafu.”  The personnel file also contains a “job action” form terminating the protester’s employment effective December 1, 1996. 

After the resignation letter, the protester received no further assignments.[5] 

Mr. Daugherty never contacted the IBT Human Resources Department concerning the paychecks he continued to receive.  He did not request an assignment either from

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Mr. Muehlenkamp or Mr. Belk from the date of his resignation until he was finally removed from the payroll.

According to the protester, when he called the IBT about his benefits he was told by a person who refused to give her name that “your department has put a hold on the processing of your paperwork.”  According to witnesses in the Retirement Office, when Mr. Daugherty called in early January, the processing of his retirement benefit application was immediately initiated and was at the time of the investigation proceeding as with any other employee of the IBT.  Mr. Muehlenkamp denies making any statement or taking any action which could be construed as freezing Mr. Daugherty’s paperwork or benefits and the investigator was unable to find any employee in the Retirement Office who had been told anything to this effect by the organizing department.[6]

Mr. Daugherty states that he has received information on his retirement benefit options and has been recently advised by Richard Jasper, the Pension Administrator, that his application is now complete.  The Election Officer therefore finds that there is no evidence that the Organizing Department or the IBT took any adverse action against Mr. Daugherty with respect to his retirement benefits.

The protester contends that the IBT removed him from the payroll in December 1996 in retaliation for the evidence he provided to the Election Officer in P-812 and because of his support for Mr. Hoffa.  Thus, the protester asserts that his resignation letter of June 17, 1996 was rendered ineffective because Mr. Belk agreed to “hold” it and it was subsequently withdrawn by the protester prior to unconditional acceptance.  Since the resignation was never effective, or was effectively withdrawn, the protester contends that he was terminated in December 1996, in violation of the Rules.

The IBT did not send any type of letter either confirming receipt of the initial resignation or responding to the August 29, 1996 rescission letter.  In addition, the IBT continued to pay Mr. Daugherty his salary through December 15, 1996.  Such inaction or action on the part of the IBT  could be argued to support the protester’s theory that his resignation was either never accepted or was effectively withdrawn.

However, the evidence taken as a whole does not support such a theory.  The protester’s own actions and those of Mr. Belk and Mr. Muehlenkamp, as well as the evidence presented by Mr. Burnette and Mr. Bening, reveal that the resignation submitted in June 1996 was accepted by the IBT.

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March 6, 1997

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Mr. Daugherty asserts that his original conversation with Mr. Belk on June 17, 1996, constituted a rejection of his resignation and that it was, therefore, not effective. Yet in his affidavit given to the Election Officer’s investigator in P-812 on June 21, 1996,

Mr. Daugherty described himself as having worked for the IBT until four days ago and made no reference to his resignation being on hold.  While indicating that Mr. Belk had suggested he reconsider his resignation and that discussions could occur after the Convention, the protester did not submit a letter attempting to rescind his resignation until August 29, 1996, some six weeks after the Convention and 10 weeks after the resignation letter.  Other than his calls regarding the payment of expenses, the protester never contacted either

Mr. Muehlenkamp or Mr. Belk regarding the fact that he was still receiving salary and had not been reassigned.   Mr. Daugherty did have several conversations with Mr. Bening, but

Mr. Bening advised the protester that he had no authority to assign him work. 

Neither the actions of Mr. Belk nor those of Mr. Muehlenkamp support the protester’s theory that his resignation was either not accepted or was effectively withdrawn.  In light of the protester’s actions and statements, as described above, and based on Mr. Belk’s conduct, the Election Officer credits Mr. Belk’s statement that he did not tell the protester during the June 17 telephone conversation that he was putting his resignation “on hold.”  He immediately forwarded the resignation to Mr. Muehlenkamp and learned from speaking to him that

Mr. Muehlenkamp was very unhappy with Mr. Daugherty’s work performance and was about to begin the process of discharging Mr. Daugherty when the resignation arrived.  He did not seek to have Mr. Muehlenkamp reassigned Mr. Daugherty to the airline division or to Local Union 19.  When Mr. Bening thereafter contacted him regarding Mr. Daugherty, he referred him to Mr. Muehlenkamp.  Finally, Mr. Burnette indicates that in mid-December 1996, in response to an inquiry about assigning Mr. Daugherty, Mr. Belk told Mr. Burnette that the protester had “quit.”  It was Mr. Burnette who then brought to Mr. Belk’s attention that

Mr. Daugherty was still on the IBT’s payroll.

Mr. Muehlenkamp also treated the resignation as effective and did not assign

Mr. Daugherty any further work.  The contact with Mr. Muehlenkamp’s office in July 1996 and October 1996 regarding payment for expenses was consistent with Mr. Muehlenkamp’s belief that Mr. Daugherty’s employment had been terminated.  

The administrative errors made by the IBT which resulted in Mr. Daugherty remaining on the payroll through December 15, 1996, do not justify a reasonable belief of continued employment given the length of time payment continued without any attempt on

Mr. Daugherty’s part to determine what work he was to perform.  Even assuming that

Mr. Daugherty reasonably believed that efforts towards arranging his reemployment were occurring in June and July of 1996, such a belief would become unreasonable by August and certainly in the Fall of 1996 when no assignments were forthcoming and he had heard nothing further from Mr. Belk or Mr. Muehlenkamp.

In support of his contention that the resignation was not accepted, the protester cites

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Wiljamaa v. Board of Education of the City of Flint, 50 Mich. App. 688 (1973).  In that case, a tenured school teacher submitted her resignation, effective November 23, 1970, on a form supplied by the school board.  The following day, an agent of the school board changed the effective date of the resignation to November 20, 1970, without the teacher’s knowledge or consent.  That same day, the teacher attempted to withdraw her resignation.  The Michigan Court of Appeals specifically ruled that by changing the date of resignation, the school board made a counteroffer, which was neither communicated to nor accepted by the plaintiff.  Therefore, the court stated, “there was no meeting of the minds, it follows that the contract between the plaintiff and the board was not rescinded by the tender of plaintiff’s resignation.”

The Michigan case arose under a teacher tenure law.  But even assuming that its holding is pertinent to a protest arising under the Rules, the Election Officer concludes that the Wiljamaa case is based on different facts and declines to apply it.  Contrary to Wiljamaa, there is insufficient evidence to show that the IBT modified the effective date or any other aspect of the protester’s letter of resignation.

The Election Officer determines that the protester’s resignation was effective when submitted in June 1996.  Therefore, the actions in December effectuating the June resignation did not constitute a discharge.

While the Election Officer finds that Mr. Daugherty effectively resigned his position in June 1996, she has determined to review the alternative theories of retaliation presented by the protester in this case, as well, in order to present all evidence that has been gathered and evaluated in consideration of this matter.  Thus, asserting that the June resignation was rejected by the IBT or that his August 29, 1996 rescission was effective, the protester contends that he was discharged in December 1996 in retaliation for his protected activity. 

The principles which apply toward the resolution of such claims of retaliation under Article VIII, Section 11(f) of the Rules are well established.  In Strzezewski, Decision on Remand II, P-416-LU705-CHI (August 27, 1996), aff’d, 96 - Elec. App. - 236 (KC) (September 19, 1996), the Election Officer summarized the elements of proof required to sustain a protest alleging retaliation:

(1) A showing that the protester was engaged in an activity protected by the Rules;

(2) A showing that the charged party had actual or constructive knowledge that the protester was so engaged; and

(3) The activity which is protected by the Rules was a motivating factor in causing the adverse action.

The Election Officer has specifically stated that no violation of the Article VIII, Section 11(f) can be sustained unless some evidence is presented or disclosed which expressly or inferentially connects the conduct which is alleged to be improper to an activity protected by the Rules.  Giacumbo, P-100-IBT-PNJ (October 13, 1995); Salucci, P-178-LU552-MOI (October 31, 1995).

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Additionally, the Election Officer has repeatedly held that the existence of a reasonable independent basis for a discharge or removal from an appointed office defeats an allegation of improper motivation, so long as such basis does not form an excuse for or is a pretext for conduct or action which is actually in violation of the Rules.  The Election Officer will not determine that conduct or action is retaliation for the exercise of election related rights 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.  See Gilmartin, P-032-LU245-PNJ (January 5, 1996), aff’d, 95 - Elec. App. - 75 (KC) (February 6, 1996); Leal, P-051-IBT-CSF (October 3, 1995), aff’d, 95 - Elec. App. - 30 (KC) (October 30, 1995); Wsol, P-095-IBT-CHI

(September  20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995); Cf., Wright Line, 251 NLRB 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455

U.S. 989 (1982).

For the purposes of this analysis, the Election Officer finds that the protester has presented sufficient evidence of protected activity by his participation as a witness in P-812, and Mr. Belk’s knowledge of this activity.

The record here indicates, however, that there is an independent, non-election related basis for refusing to reemploy Mr. Daugherty.  At the time of the initial resignation in June, Mr. Muehlenkamp expressed his relief to Mr. Belk stating that the resignation would “save him a lot of trouble,” because at the time, Mr. Muehlenkamp was about to begin the process of discharging Mr. Daugherty for poor work performance.  A few days prior to his resigna-tion, the Comair organizing drive, for which Mr. Daugherty had primary responsibility, came to an unsuccessful conclusion.[7]  Another organizer who had been involved had, at the time, relayed to Mr. Muehlenkamp her criticism of Mr. Daugherty’s work on the campaign.  

Mr. Muehlenkamp cited several problems he had with the protester’s work as an organizer.  He stated that the protester resisted training and the adoption of new methods of organizing.  Mr. Muehlenkamp specifically cited discussions he had had with the protester in which Mr. Muehlenkamp instructed Mr. Daugherty to engage in specific strategies and tactics such as scheduling committee meetings, making house visits and distributing leaflets. 

Mr. Muehlenkamp asserts that Mr. Daugherty did not follow through on these instructions.  Mr. Muehlenkamp also reported that he had great difficulty getting progress reports from

Mr. Daugherty.  Other organizers interviewed also referred to deficiencies in Mr. Daugherty’s work performance, including reluctance or failure to set up organizing meetings, make house calls, or distribute sufficient organizing literature.

Mr. Muehlenkamp also stated that he had no confidence in the protester’s assessment of organizing campaigns.  He cited the Comair organizing campaign in Ohio for which

Mr. Daugherty had primary responsibility.  There, Mr. Daugherty had reported to

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Mr. Muehlenkamp that “everything is going fine, the bosses’ campaign is not extensive and is not having an impact,” while another organizer assigned to the campaign reported that it was not going well.  Mr. Muehlenkamp states that the protester’s assessment of union support in the campaign was totally inaccurate, and this conduct, by a senior organizer, was unacceptable.

Mr. Daugherty acknowledges he had a great deal of difficulty working for

Mr. Muehlenkamp.  There is no dispute that this conflict was what triggered his submitting his resignation in June 1996.  The investigator in this matter reviewed with Mr. Daugherty the complaints raised by Mr. Muehlenkamp regarding his work performance.  Mr. Daugherty acknowledged that he had differences with Mr. Muehlenkamp regarding organizing tactics and that he did not always follow his instructions to a “T.”  He confirmed that the vote in the Comair campaign was much closer than the projections given to Mr. Muehlenkamp.

In support of his claim of a retaliatory motive for the union’s actions, Mr. Daugherty points to the timing of the termination at the conclusion of the International election.  The

termination paperwork did occur on December 18, 1996, a date following the counting of unchallenged ballots in the International officer election.  However, the impetus for this action at this time was the call Mr. Belk received from Mr. Burnette a few days earlier. 

Mr. Burnette acknowledges that he placed this call to Mr. Belk seeking to get Mr. Daugherty assigned to him. He further states that Mr. Belk responded that Mr. Daugherty had quit, at which point Mr. Burnette informed Mr. Belk that Mr. Daugherty was still on the payroll. 

Mr. Burnette’s account of this telephone conversation provides a rationale, independent of the conclusion of the election, for Mr. Belk’s action to effectuate the termination at this time.

Finally, Mr. Daugherty also raises the termination of Mr. Rogers to support a claim that the Carey administration was engaged in retaliation against individuals who did not support his reelection.  In a decision issued today, Rogers, P-1346-IBT-NYC (March 4, 1997), the Election Officer concluded that the IBT’s failure to retain Mr. Rogers as a temporary project organizer did not constitute retaliation.  While the Election Officer has considered the role played by both Mr. Daugherty and Mr. Rogers in the P-812 investigation, the evidence adduced in both cases indicates the employment action taken by the IBT was not based on either gentlemen’s protected activity.

Thus, the Election Officer concludes that Mr. Daugherty effectively resigned his position on June 17, 1996.  In addition, having reviewed the retaliatory discharge theory of the case presented by the protester, the Election Officer has further concluded that there is sufficient evidence to find that even if the actions taken were found to constitute a discharge by  the IBT, such a discharge would be based on reasons independent of the protected activity of the protester.

Accordingly, the protest is DENIED.

Kenneth Daugherty

March 6, 1997

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Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within three days 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

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, 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 C. Deinhardt, Regional Coordinator