February 10, 1997
VIA UPS OVERNIGHT
Greg Rushton
#10 - 380 Ginger Drive
New Westminster, BC V3L 5L4
Garnet Zimmerman, President
Teamsters Local Union 31
#1 Grosvenor Square
Delta, BC V3M 5S1
Re: Election Office Case No. Post 38-LU31-CAN
Gentlemen:
A post-election protest was filed pursuant to Article XIV, Section 3(a) of the Rules
for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by
Greg Rushton, a member of Local Union 31, against Garnet Zimmerman, president of Local Union 31 and former candidate for Canadian International vice president. The protester alleges that Mr. Zimmerman did not select him to represent Local Union 31 in national collective bargaining negotiations with UPS in retaliation of his support for the Ron Carey No Corruption-No Dues Increase slate (“Carey slate”) in the recent International officer election.
Mr. Zimmerman states that his choice for Local Union 31 collective bargaining representative was based on legitimate interests of the local union and was not politically motivated.
The protest was investigated by Regional Coordinator Gwen K. Randall.
The investigation discloses that the protester is a Local Union 31 steward serving approximately 122 members employed at the Fraser Valley UPS facility in the Vancouver, British Columbia area. The Fraser Valley Center interacts regularly with the Coastal and Airport facilities, at which approximately 180 additional members are employed.
Greg Rushton
February 10, 1997
Page 1
In 1991, Mr. Zimmerman selected the protester to serve on the negotiating committee for a national collective bargaining agreement with UPS. These negotiations took place in Toronto. The 1994 bargaining sessions with UPS took place in Calgary. Mr. Zimmerman again selected the protester to be a member of the negotiating committee. The protester was the only steward from the western region to attend UPS bargaining sessions in 1991 and 1994. UPS national agreement negotiations began again in January 1997.
Mr. Zimmerman was a candidate for International vice president on the Jim Hoffa-No Dues Increase-25 & Out slate (“Hoffa slate”). During the International officer election, the protester conspicuously supported Ron Carey for general president and the Carey slate. He sent several letters to Mr. Zimmerman complaining about the use of local union funds for campaign purposes. For example, on December 2, 1996, the protester sent a letter to Mr. Zimmerman objecting to the use of the Local Union #31 Teamwork Newsletter to Mr. Hoffa and the candidates aligned with him. Mr. Zimmerman admits that he knew the protester opposed him and the slate with which he was affiliated during the campaign. Further, Mr. Zimmerman admits that he was aware of the election-related activities in which the protester was engaged.
Negotiations for the successor national UPS collective bargaining agreement began January 26, 1997. On January 23, 1997, the protester was advised by Local Union 31 Business Agent Ross Peterson that Mr. Zimmerman had not selected him to be a member of the 1997 negotiating committee. Instead, Mr. Zimmerman selected Paul Dowler, a shop steward at the UPS facility in Victoria, British Columbia, to join the committee. There are only 12 full-time and three part-time members employed in that terminal and these workers are served by
Mr. Dowler.
Mr. Dowler was a supporter of Mr. Zimmerman and the Hoffa slate. During the campaign, he wore campaign paraphernalia supporting Messrs. Hoffa and Zimmerman.
Mr. Zimmerman acknowledges that he was aware of Mr. Dowler’s support.
Mr. Zimmerman states that the selection of representatives for the UPS national bargaining sessions is entirely within his authority and therefore he had the right to select
Mr. Dowler, and not Mr. Rushton, to serve on the negotiating committee. Mr. Zimmerman asserts two reasons for not selecting Mr. Rushton. Mr. Zimmerman states that he decided to send only a business agent, and not a shop steward, for financial reasons. Mr. Zimmerman pointed out that the business agent he selected to be on the negotiating committee works only three doors away from a UPS depot in Vancouver, and could report to concerned members there.
Mr. Zimmerman also stated that he was concerned the protester would not forcefully support “western issues” at the negotiating table.
Greg Rushton
February 10, 1997
Page 1
According to Mr. Zimmerman, he originally did not plan to send any shop steward from Vancouver Island to the negotiating committee and then changed his mind on January 23, 1997. He admits, however, that he spoke to Mr. Dowler, the shop steward in Victoria, on January 9 and asked him if he was prepared to take the job. The day after Mr. Zimmerman made his selection of Mr. Dowler to serve on the negotiating committee, Mr. Zimmerman was presented with a petition signed by approximately 160 union members from Vancouver, asking that the protester represent them at the UPS negotiations.
On January 24, 1997, Local Union 31 member Barrie Poirier visited with
Mr. Zimmerman in his office. Mr. Poirier states that he directly asked Mr. Zimmerman “why send a steward with no experience and very little support of the members to the negotiations versus one with a majority of support and National negotiation experience.” According to
Mr. Poirier, Mr. Zimmerman responded that the protester had initially indicated support for
Mr. Zimmerman’s candidacy, but then supported another candidate. Mr. Poirier further asserts that Mr. Zimmerman commented that the protester had circulated lies during the election by distributing literature that said Mr. Zimmerman was stealing from Local Union 31.
Mr. Zimmerman confirmed that he discussed with Mr. Poirier the fact that the protester had stated he would support him and then did not. He also confirmed that he and Mr. Poirier discussed Mr. Zimmerman’s discomfort with the leaflets that the protester distributed during the campaign.
The protester’s claim is addressed in 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 to the resolution of such claims are well-established and have been comprehensively reviewed in a number of Election Officer 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 Article VIII, Section 11(f) of the Rules can be sustained unless some evidence is presented or disclosed which expressly or inferentially connects the conduct 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).
Greg Rushton
February 10, 1997
Page 1
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).
There is no dispute in this case that the protester was engaged in campaign activity during the period of the election campaign and that Mr. Zimmerman had actual knowledge of the protester’s activities.
Therefore, the Election Officer will examine whether Mr. Zimmerman had an independent basis for the appointment or whether his asserted reasons are pretextual.
Mr. Zimmerman gave two reasons for his failure to select the protester to join the bargaining committee. First, he states that for financial reasons, he decided to send a business agent rather than a steward. Second, he expresses doubt that the protester would adequately represent “western issues” at the bargaining table.
The evidence in this case indicates that the reasons offered by Mr. Zimmerman for the selection of a steward-representative for bargaining are pretextual. The financial reasons used by Mr. Zimmerman to justify his selection of representatives is contradicted by his own action. Rather than sending only a business agent, as he indicates was his initial intent, he also selected a steward to attend negotiations. Thus, there was no cost differential involved in the ultimate choice of representatives. A steward other than the protester is still attending the negotiating committee meetings at the local union’s expense.
Furthermore, there is direct evidence that Mr. Zimmerman was motivated by
Mr. Rushton’s international electoral activity in failing to send him as a bargaining representative. Prior to the filing of this protest, Mr. Poirier sought out Mr. Zimmerman and asked him why he had sent Mr. Dowler, a steward with little experience, over Mr. Rushton, a steward with majority support and prior negotiating experience. Mr. Zimmerman responded with statements about Mr. Rushton’s lack of support and criticism of his during the International election campaign. This statement directly connected election-related rights to the failure to reappoint the protester to his previous position on the UPS negotiating committee.
While the decision as to whom to appoint to such a committee is one within the principal officer’s discretion, an employment-related decision cannot be motivated by retaliation for the exercise of protected election activity. Here, no credible, independent reason for the failure to appoint the protester has been given. The Election Officer therefore concludes that
Greg Rushton
February 10, 1997
Page 1
Mr. Zimmerman’s failure to select the protester as a representative to the 1997 UPS negotiations was motivated by his election-related activity.
Accordingly, the protest is GRANTED.
When the Election Officer determines that the Rules have been violated, she “may
take whatever remedial action is appropriate.” Article XIV, Section 4. In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process. Pursuant to the Rules at
Article XIV, Section 3(b), post-election protests which allege “improper threats, coercion, intimidation, acts of violence or retaliation for exercising any right protected by the Rules shall be considered and remedied without regard to whether the alleged violations affected the outcome of an election.”
The Election Officer orders as follows:
1. Mr. Zimmerman will cease and desist from retaliating against Mr. Rushton for exercising rights protected by the Rules.
2. Immediately upon receipt of this decision, Mr. Zimmerman will appoint
Mr. Rushton as a representative of Local Union 31 on the UPS negotiating committee and
Mr. Rushton shall be entitled to immediately participate in the negotiations to the extent that he would have absent the retaliatory conduct.
3. Within five (5) days of the receipt of this decision, Mr. Zimmerman, in his capacity as Local Union 31 president, will submit an affidavit to the Election Officer indicating compliance with this order.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within three (3) 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
Greg Rushton
February 10, 1997
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, 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 K. Randall, Regional Coordinator