Protest Decisions

March 6, 1997

VIA UPS OVERNIGHT

Dean Rogers

March 6, 1997

Page 1

Dean Rogers

11540 Taylor Road

Plain City, OH  43060

Ron Carey, General President

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Robert Muehlenkamp, Director

Organizing Department

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC  20001

Gary Stevenson

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

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

Dean Rogers

March 6, 1997

Page 1

Re:  Election Office Case No. P-1346-IBT-NYC

Gentlemen:

Dean Rogers

March 6, 1997

Page 1

Dean Rogers, a  member of Local Union 413, filed a protest pursuant to 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 two IBT staff members, Robert Muehlenkamp and Gary Stevenson.[1]  The protester alleges that he was “summarily” dismissed from his position as IBT project organizer because he provided evidence to the Election Officer in a previous protest and because he supported James P. Hoffa for general president in the International election.

During the period of his employment, Mr. Rogers was assigned to the Overnite organizing campaign.  In support of his charge, Mr. Rogers points out that he provided “significant evidence” as a witness in a previous protest.  He further claims that his “perfunctory and largely unexplained termination . . . was manifestly part of an overall pattern of retaliating against International Organizers and other personnel because of their support for James P. Hoffa and/or exercise of other rights under the Election Rules.”  The protester asserts that he was second in seniority among project organizers and that his dismissal was not adequately explained by the IBT.

The IBT denies that any violation of the Rules occurred.  Its position is that all project organizer positions are temporary and that all Overnite project organizers, including Mr. Rogers, knew that their status was due for reevaluation at the end of 1996.  In January 1997, the IBT determined that it would not continue the employment of seven out of 24 of these project organizers.

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

The protest is based upon a claim of retaliatory action related to evidence provided to the Election Officer in a previous case.   On August 16, 1996, the Election Officer issued a decision in Hoffa, P-812-IBT-NYC (August 16, 1996).  One of the allegations resolved by that protest decision charged that the IBT Organizing Department exerted pressure on International representatives and organizers to campaign for Ron Carey and solicit support for his reelection. 

During the investigation of these allegations in June of 1996, the Election Officer subpoenaed the testimony of Mr. Rogers, a project organizer with the IBT, who provided evidence concerning a telephone conversation occurring between himself and Mr. Stevenson, his supervisor in the IBT Organizing Department, on June 6, 1996.  Based on this testimony, the Election Officer determined that Mr. Stevenson violated the protester’s rights under the Rules under Article VIII, Section 11(a) by instructing him to campaign for Mr. Carey.

Dean Rogers

March 6, 1997

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The protester also provided evidence of a discussion in which Mr. Stevenson was found to have said that if Mr. Rogers would purchase raffle tickets to a Carey fundraising event “this would go good for you -- it would look good for the higher ups.”  Robert Kruezer, another project organizer, testified to a similar incident.  The Election Officer found, based on this evidence, that Mr. Stevenson had “directly linked the job performances of Messrs. Rogers and Kreuzer with their willingness to contribute financially to the Carey campaign,” a further violation of the Rules.

The investigation of the current protest discloses that Dave Eckstein, then the IBT’s coordinator of an organizing campaign directed at the employees of Overnite Transportation (“Overnite”), hired Mr. Rogers as a project organizer in June 1995, working in Ohio.  Prior to his employment with the IBT, Mr. Rogers was briefly employed by Local Union 413 as an organizer on the Ohio Overnite campaign.   Prior to that, the protester was employed for many years as a truck driver.  In early September of 1996, Mr. Rogers was reassigned to the Baltimore, Maryland area to work on the Overnite campaign there.  On January 7, 1997,  Mr. Rogers was notified that his job as a project organizer with the IBT was over.

The IBT has a history of hiring temporary project organizers to assist on specific organizing campaigns.  According to Mr. Stevenson, this practice permits the IBT to adjust the size of its organizing staff to match its current needs.  Project organizers are generally recruited from the ranks of local union members.  Following their assignment as project organizers, such members return to their former employers.  The IBT provided evidence of varying duration of employment for these project organizers, ranging from a few weeks to several months to over a year.[2]

                At the time Mr. Rogers became a project organizer in June 1995, there had been three other project organizers assigned to the Overnite campaign--Mr. Kreuzer, Dave Klein and

Tim Raiter.  Mr. Klein’s employment was terminated in the summer of 1995.

In April 1996, Gary Stevenson became the IBT’s coordinator for the Overnite organizing project.  Upon his assumption of these duties, Mr. Stevenson hired approximately 20 additional project organizers.  According to Mr. Stevenson, he told each new organizer to obtain a leave of absence only until the end of the year and that at that time, the IBT’s need for each position would be reevaluated.    Mr. Stevenson states he told the protester that the IBT was putting on an additional number of project organizers through the end of the year and that they would evaluate the campaign at that time to determine which of them should continue.  Like these other project organizers, Mr. Rogers obtained a leave of absence until the end of 1996.  Just prior to his termination, without speaking to anyone at the IBT, he then arranged to extend his leave of absence.

Dean Rogers

March 6, 1997

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Both the protester and the IBT agree that as a project organizer, Mr. Rogers was never a permanent employee and that employment was not promised for any set period of time.   The protester maintains that he was told by Mr. Eckstein at the time he was hired that he would remain as an IBT employee as long as the Overnite campaign was active.  Mr. Eckstein, however, states that the protester was hired specifically because of his access to and knowledge of Overnite workers in Ohio and that Mr. Rogers was initially told he could count on employment “as long as we needed his services in Ohio.”

At the close of 1996, the IBT employed a total of 24 project organizers for the Overnite campaign.  The project and assignments were reassessed at that time.  As a result, seven of the

24 project organizers working on the Overnite campaign, including Mr. Rogers, have been terminated.  An additional project organizer who was interviewed, Mr. Vecchioni, indicated that he expected to be “pulled out” of the campaign soon.

The IBT explains that its decision to terminate Mr. Rogers was made strictly on the basis of Mr. Rogers’ work performance and the needs of the Overnite campaign.  In early September 1996, Mr. Rogers was reassigned to the Baltimore, Maryland area, where he worked under the general direction of Mr. Sylvester, an IBT staff organizer assigned by Gary Stevenson to be the on-site coordinator for the Baltimore Overnite campaign.  Mr. Sylvester states that during his time working in Baltimore, Mr. Rogers’ attitude changed from “less than cooperative” to “totally obstinate.”  Specifically, Mr. Sylvester states that Mr. Rogers refused to go to a monthly local union membership meeting with the other Baltimore project organizers at Local Union 557 because, in his view, it was “too political.”  Mr. Rogers was urged to go, and was told that

Mr. Stevenson wanted the organizers to attend.  According to several of the organizers,

Mr. Rogers told them if Mr. Stevenson wanted him to go he could order him to do it and he would protest it.  Mr. Sylvester also states that the protester refused to accompany other project organizers to meetings with Mr. Stevenson at the IBT in Washington. 

Mr. Sylvester recalled days spent at plant gates when organizers would engage in leafleting and interacting with potential union members.  Mr. Rogers would stand with the group for 15 or 20 minutes and then, often complaining about weather conditions, would spend the remainder of the time in his car.   Mr. Sylvester described Mr. Rogers as having difficulty working “as part of the team”--excluding himself from the other organizers and leaving meetings early.  Mr. Sylvester concluded that Mr. Rogers lacked initiative and was, in his view, just “going through the motions.”  Mr. Sylvester reported that he did talk to Mr. Rogers about his work performance on at least one occasion, suggesting that “this was a team activity” and that Mr. Rogers should “join in more.”  Several of the project organizers interviewed in the Baltimore area state that the protester and Mr. Sylvester had a “personality conflict” and that Mr. Rogers did not work as part of the team.

Dean Rogers

March 6, 1997

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In addition to reports he received from Mr. Sylvester and others at work in Baltimore,    Mr. Stevenson had other concerns about Mr. Rogers’ initiative, productivity, and attention to detail in his role as a project organizer.   Mr. Stevenson referred to an incident where Mr. Rogers had submitted a list of employees purportedly interested in union representation, which did not include their signatures.  Mr. Stevenson viewed this as deficient, because it could not serve as a valid petition for representation under the National Labor Relations Act.  Mr. Stevenson was also concerned with the amount of time Mr. Rogers spent at home or in travel status, particularly during the summer months.

In response to the concerns articulated about his work performance,  Mr. Rogers states that “nothing bad” was said to him about his work.  He refers to two events occurring in the spring of 1996, at which Mr. Stevenson and IBT Organizing Director Bob Muehlenkamp told him that he was doing “a good job.”  As to attendance, Mr. Rogers states that  “no one at the International ever spoke to me about taking too many days off,” and that he understood as a project organizer, there was no limit as to the number of sick days he could take.

The claims of Mr. Rogers are controlled by the Rules at Article VIII, Section 11(f) which provides as follows:

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 principles which apply toward the resolution of such claims are well-established and have been comprehensively reviewed in a number of the Election Officer’s decisions.  ­­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 based on 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 Rules at 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). 

Dean Rogers

March 6, 1997

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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). 

The testimony provided by the protester in P-812 is clearly protected activity under the Rules.  Mr. Stevenson made the decision as to which project organizers would be retained and he was aware of this testimony by virtue of the decision in P-812.   The issue, then, is whether the decision not to retain Mr. Rogers’ services as a project organizer was based on his protected activity.

In determining which project organizers to dismiss, the IBT considered the performance of all of the organizers.  Mr. Rogers was selected as one of the project organizers to be dismissed because of his inability to work within a team and take direction, and his lack of initiative and productivity.  These reasons for dismissal, asserts the IBT, were independent of the election process and Mr. Rogers’ testimony in P-812.

The protester argues that the reasons given by the IBT to justify his dismissal were a pretext for retaliation.  Specifically, Mr. Rogers responds by claiming that he was never told that staffing would be reevaluated and that there was no warning that his work performance was inadequate.

Based on the evidence presented, the Election Officer determines that it was reasonable for the IBT and specifically Mr. Stevenson to believe that Mr. Rogers was not effective as a project organizer.  The Election Officer determines that a basis independent of the election process has been presented by the IBT to explain the protester’s termination. 

The Election Officer also determines that the independent reason does not constitute a pretext for improper motivation.  The Election Officer has considered a claim of pretext based on the timing of the dismissal, approximately three months after the decision in P-812 and about two weeks after the first general count of the ballots in the International officer election.   The timing of the dismissal, however, corresponds to the time when all Overnite project organizers were told they would be reevaluated and determinations were made as to who would be retained.  While Mr. Rogers states that he was told he could count on being employed until the conclusion of the Overnite campaign, the evidence shows that he and others were informed that they should extend their leaves of absence through 1996.  The Election Officer finds that Mr. Stevenson intended to reevaluate the protester’s employment by the end of 1996 and determines that this adequately explains the timing of the dismissal.

Dean Rogers

March 6, 1997

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The protester also asserts that the performance reasons for the dismissal were pretextual, based upon Mr. Stevenson’s failure to discuss with the protester aspects of his work performance which were considered deficient.  Such “progressive discipline” is generally applied by supervisory personnel to correct improper behavior or activity of an employee and to let that employee know that if the deficiency is not corrected, more serious consequences could result.  The failure to apply it to a temporary employee having no expectation of continued employment is not, however, without more, evidence of a pretext for improper motivation under the Rules.

The comparative evidence in this case also supports the finding that there were independent reasons for Mr. Roger’s termination.  Mr. Rogers was part of a group of seven Overnite organizers whose services the IBT determined it no longer needed.  Another employee, Mr. Vecchioni, has also indicated that he expects his assignment to end shortly.  Thus,  approximately 25 percent of this group of temporary employees are not continuing as project organizers.  Mr. Rogers points to the fact that he was the second-most senior of the project organizers and less senior organizers were retained.  The IBT is not obligated by contract or otherwise to recognize seniority in the hiring or firing of a project organizer and it did not utilize seniority in the position as a basis for determining who would be retained.  The seven selected for termination had worked varying lengths of time and were, in several instances, more “senior” to other organizers who were retained. 

The comparative evidence also fails to show any pattern that suggests political or retaliatory motivation in the selection of organizers who were not retained.  Mr. Rogers has identified at least two of those who have been or expect soon to be dismissed as active Carey supporters--Mr. Dutkiewicz and Mr. Vecchioni.  In addition,  Mr. Kruezer, who was also the source of crucial evidence in P-812, has been retained by the IBT as a project organizer.   The decision as to who would be retained as project organizers does not reflect selection on the basis of support for one or the other presidential candidates.  Nor does it indicate that Mr. Rogers was targeted for dismissal based upon his providing information in P-812. 

The Election Officer determines that Mr. Rogers was not terminated for any reason which violates the Rules.  The termination was supported by a reasonable justification, independent of the election process, and there is no evidence to establish that the proffered reason was a pretext for improper motivation.

The Election Officer has carefully protected the rights of members to engage in, or refrain from engaging in the electoral process without fear of retaliation.  Those who give testimony in the course of an investigation must be similarly protected.  However, such activities cannot immunize an employee from termination or similar adverse action when the employer is able to provide evidence of an independent basis for the adverse action.  Such evidence has been provided in this case.

Accordingly, the protest is DENIED.

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

Dean Rogers

March 6, 1997

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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 Deinhardt, Regional Coordinator