April 30, 1997
VIA UPS OVERNIGHT
Rebecca Clemerson
April 30, 1997
Page 1
Rebecca Clemerson
9105 Fairridge Drive
Louisville, KY 40229
Jerry T. Vincent, Secretary-Treasurer
Teamsters Local Union 783
7711 Beulah Church Road
Louisville, KY 40228
Executive Board
Teamsters Local Union 783
7711 Beulah Church Road
Louisville, KY 40228
Rebecca Clemerson
April 30, 1997
Page 1
Re: Election Officer Case No. Post-41-LU783-SEC
Gentlepersons:
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
Rebecca Clemerson, a member and elected trustee of Local Union 783. The protest concerns a decision of Local Union 783’s Executive Board (the “Board”) dated February 19, 1997, which sustained internal union charges brought against Ms. Clemerson by Jerry T. Vincent, secretary-treasurer of Local Union 783. Ms. Clemerson alleges that the decision is in retaliation for her filing of a protest and her support for Ron Carey for general president.
Rebecca Clemerson
April 30, 1997
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Ms. Clemerson was charged with violating provisions of both the IBT Constitution and the Local Union 783 bylaws because of her failure to sign monthly financial statements, which the parties refer to as “the books.” Mr. Vincent specifically charged the protester with violating Article XIX, Sections 7(b)(1) and 7(b)(2) of the IBT Constitution. Article XIX, Section 7(b)(1) requires members to comply with all provisions of the Constitution, local union bylaws, rules of order and to perform “any of the duties specified thereunder.” Article XIX, Section 7(b)(2) prohibits violations of the oath of office or the oath of loyalty to a local union or the International, which also generally require compliance with the IBT Constitution and local union bylaws.
The bylaws of Local Union 783 provide at Section 10, that it is the duty of each Trustee to conduct a monthly examination of the books and sign them “if they have found them correct and the bank balances verified.” Under this provision, the duty may be refused only if the Trustee states “in writing to the Local Union Secretary-Treasurer his reasons for declining to do so.”
The Board found that Ms. Clemerson violated the IBT Constitution and Local Union 783 bylaws and ordered the 90-day suspension of Ms. Clemerson’s membership. Ms. Clemerson objects to the decision as unreasonably “harsh” and not proportionate to her actual conduct. She further contends that the Board issued its decision and penalty to intimidate and retaliate against her due to her activities on behalf of Mr. Carey during the International officer election.
The Board denies that its decision had any connection to the election and asserts that the decision was necessitated and justified by Ms. Clemerson’s own actions. The Board also challenges the timeliness of the protest and contests the jurisdiction of the Election Officer on two grounds: that the Election Officer’s authority expired upon conclusion of the election and that the Election Officer no “subject matter” jurisdiction asserting this case has nothing to do with the International election.
The protest was investigated by Adjunct Regional Coordinator Joe F. Childers.
I. Factual Background
A. Previous Protests
Ms. Clemerson has filed four previous. On October 18, 1996, Ms. Clemerson was dismissed by her employer for campaigning on the premises in violation of a “no-campaigning rule.” The Election Officer ruled in Clemerson, P-1104-LU783-SCE (November 1, 1996), that Ms. Clemerson’s termination was in violation of the Rules at Article VIII, Section 11(e), which creates a limited right-of-access to IBT members to distribute literature and seek support for their candidate in any parking lot used by union members to park their vehicles in connection with their employment. Ms. Clemerson’s employer agreed to resolve the protest, in part, by reinstating her. The Election Officer further concluded that both Local Union 783 and the employer had “demonstrated confusion as to the rights of members to campaign at work sites,” and ordered a comprehensive corrective remedy.
A second protest was filed regarding an incident which occurred on the evening of November 8, 1996, when the windows were shot out of Ms. Clemerson’s automobile while it was parked near an active campaign site. The Election Officer granted this protest and ordered that the violation be remedied by the posting of a stern notice. Clemerson, P-1263-LU783-SCE (November 25, 1996), aff’d, 96 - Elec. App. - 296 (KC) (December 5, 1996).
Rebecca Clemerson
April 30, 1997
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In Clemerson, P-1269-LU783-SCE (November 25, 1996), the Election Officer sustained Ms. Clemerson’s allegation that James T. “Todd” Thomason, a Local Union 783 business agent, violated the Rules at Article VIII, Section 11(f) by following her car at an unsafe distance on November 17, 1996, after a campaign-related event. The Election Officer determined that this act constituted “a threat of actual harm” directly related to the exercise of Ms. Clemerson’s right to engage in campaign activities in violation of the Rules.
On November 20, 1996, Ms. Clemerson visited Local Union 783 for the purpose of examining the financial statements for October and November of that year. Mr. Thomason ordered an office clerical to stay in the room with Ms. Clemerson while she reviewed the books. Ms. Clemerson viewed this act as retaliation for the protest which she had previously filed against Mr. Thomason, which was under investigation at that time. On that basis, Ms. Clemerson left the offices of Local Union 783 without signing the books. The financial statements for these months were not signed by the protester until December 19, 1996, one day after the hearing on the internal union charge which became the subject of this protest.
In Clemerson, P-1339-LU783-SCE (January 30, 1997), the Election Officer ruled that Mr. Thomason’s actions on November 20, 1996 constituted retaliation against Ms. Clemerson for the previous filing of the protest in P-1269,[1] but found that the internal union charge was reasonably based on violations of the IBT Constitution and local union bylaws and therefore, denied that portion of the protest.
At the time the protest determination in P-1339 was issued, a decision by the Board on the internal union charges was still pending. The current protest addresses the penalty ordered by the Board.
B. Decision on the Internal Union Charges
Rebecca Clemerson
April 30, 1997
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In its decision, the Board specifically determined that Ms. Clemerson “intentionally and knowingly” failed to sign the Local Union 783 financial statements for October and November, 1996, in violation of the bylaws. In support of this conclusion, the Board found reached the following findings: Ms. Clemerson failed to sign the books even after she was reminded of her obligations as a trustee in a letter she received from General Secretary-Treasurer Sever; [2] Ms. Clemerson was aware of the duties of a trustee under the bylaws and the IBT Constitution by virtue of the her receipt of the charges and her communications with Mr. Sever; Ms. Clemerson’s conduct was intentional; she violated the Labor-Management Reporting and Disclosure Act of 1959, as amended, by initially refusing to sign the books; and Ms. Clemerson acted improperly by refusing to perform her duty on grounds of alleged retaliation rather than utilizing the procedures under the IBT Constitution and local union bylaws.
In support of its penalty, the Board relied upon the section of the bylaws which vests it with the authority to “authorize removal, for life, if an officer (as here) refused to execute required forms;” [3] and found that the 90-day suspension is necessary since there is no evidence to suggest that Ms. Clemerson will not continue to refuse to sign the books absent appropriate remedial disciplinary measures.
The Board’s decision cites the Election Officer’s decision in P-1339 as establishing that the charges were filed by Mr. Vincent were not in retaliation for Ms. Clemerson’s exercise of her election-related rights and refers to an effort to settle the protest by Mr. Vincent as evidence of his lack of “political” motivation for the internal union charges.
Pursuant to Article XIX, Section 2(a) of the IBT Constitution, Ms. Clemerson appealed Local Union 783’s decision to Joint Council 94. Unless the decision is modified or reversed by Joint Council 94 or the IBT General Executive Board, Ms. Clemerson will not be eligible to be a candidate for local union office at the next election. IBT Constitution, Article XIX, Section 2 and Article II, Section 4(a)(1). Ms. Clemerson also requested that Mr. Carey stay the penalty pending her appeal. This request was granted by Mr. Carey on March 5, 1997.
The hearing panel in this case consisted of all the members of the Executive Board except Mr. Vincent and Ms. Clemerson, who were replaced with other members. The local union president appointed Mr. Vincent’s son to sit on the panel. He participated in the hearing but did not participate in the final decision.
C. Protester’s Claim
In support of her allegations, Ms. Clemerson specifically asserts that the Board did not properly consider her basic defense to the internal union charge that the delay in signing the books was precipitated by mental stress resulting from the termination of her employment reviewed in P-1104 and the election-related vandalism to her car, reviewed in P-1263. Ms. Clemerson also asserts that certain critical comments directed toward Mr. Carey by Board members supporting James P. Hoffa for general president during meetings, were intended as insults to her. Ms. Clemerson also partially imputes the cause of her stress to Mr. Thomason, claiming that he has publicly expressed his dislike for her.
Rebecca Clemerson
April 30, 1997
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The protester takes the position that the decision of the Board is part of a continuing pattern of retaliation and intimidation which is exemplified by two undated notices to members who, like the protester, are employed by President’s Baking Company.[4]
The protester further asserts that the severe penalty is part of an alleged pattern of conduct in which Mr. Vincent or his supporters have consistently engaged in retaliation against political opponents by filing and unreasonable resolution of internal union charges. In support of this aspect of her claim, the protester makes reference to the following events: 1992 internal union charges filed against Ms. Fuller; 1996 internal union charges filed against Kevin Lally, another political ally of Ms. Clemerson; a 1991 protest decision by Election Officer Holland in which the Election Officer determined that Mr. Vincent retaliated against Mr. Lally; and 1991 internal union charges against Terry Nevitt, an elected trustee aligned with Mr. Lally.
II. Timeliness and Jurisdiction
The Board contends that Ms. Clemerson’s protest is untimely under the Rules at Article XIV, Section 2 (b)(3), providing that all pre-election protests be filed within two working days of the day “when the protester becomes aware or reasonably should have become aware of the action protested.” The decision was not announced until February 19, 1997, several weeks subsequent to the voting in December of 1996. Accordingly, the protest concerns postelection activity, because it objects to “election day or postelection day conduct.”
Ms. Clemerson filed her protest on February 26, 1997, within 3 days of the time she received notice of the Board’s decision and one day beyond the time limitations stated in Article XIV, Section 3(a)(3). On February 25, 1997, the day before she filed, the protester telephoned the Adjunct Regional Coordinator to request clarification on her right to file.
The Election Officer has never treated time limits as an absolute jurisdictional requirement, but rather as a prudential restriction.” Hoffa, P-788-IBT-EOH (June 18, 1996); Blake, P-712-LU630-CLA (April 29, 1996). In prior cases, the Election Officer has waived the timeliness requirements of the Rules if, as here, the protest was not excessively untimely and the alleged violation was retaliation or similarly serious conduct. Williams, P-1325-LU469-NYC (December 3, 1996). A similar finding is appropriately made in this case.
Rebecca Clemerson
April 30, 1997
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The Board’s jurisdictional arguments are also without merit. The authority of the Election Officer does not expire merely because the International election has been conducted, as contended by the Board. The Rules at Article XIV, Sections 1 and 3 specifically authorize the Election Officer to consider protests based on conduct occurring after an the election.
The filing of an internal union charge and the penalty dispensed in connection with that charge are separate events, each having the potential to impact the Rules. The protester has not alleged in this protest that the Rules were violated when Mr. Vincent filed his charge. That issue has been previously decided in favor of Mr. Vincent in P-1339. Rather, the protester makes the allegation that the decision itself constitutes retaliation because the discipline ordered is unreasonably “harsh” and is tainted by improper election-related considerations. The allegation that the penalty imposed by the Board’s decision is improperly motivated under the Rules is sufficient to invoke the Election Officer’s jurisdiction under Article XIV, Section 3(a) of the Rules.
III. Retaliation Based on the Penalty Imposed by the Board
The Rules at Article XIV, Section 1, provide that “[A]ny member, Local Union or other subordinate body of the International Union or the International Union may file a protest with the Election Officer alleging non-compliance with the Rules, free from retaliation or threat of retaliation by any person or entity for such filing.” The Election Officer has previously held that “[T]he right of IBT members to file, free from retaliation, election protests, even protests which are found to be non-meritorious, goes to the heart of the safeguards mandated by the Rules and the Consent Order.” In Re: Sullivan, 95 - Elec. App. - 2 (KC) (July 14, 1995).
Similarly, the Rules provide at Article VIII, Section 11(f) that “[R]etaliation 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.”
However, the Election Officer is not free to remedy adverse conduct merely because it occurs in the general context of the election and during the election or postelection period. 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); Rogers, P-1346-IBT-NYC (March 4, 1997), aff’d, 97 - Elec. App. - 320 (KC) (March 17, 1997).
In P-1339, the Election Officer concluded that the charges filed against Ms. Clemerson were not retaliatory as they were based on the claim that she violated the IBT Constitution and the bylaws of Local Union 783 when she initially refused to sign the monthly financial statements for October and November of 1996. Therefore, the only issue before the Election Officer here is whether the discipline imposed by the Board was retaliatory.
Rebecca Clemerson
April 30, 1997
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In Leal, P-051-IBT-CSF (October 3, 1995), aff’d, 95 - Elec. App. - 30 (KC) (October 30, 1995), the Election Officer considered whether a four-week suspension of Mr. Leal from his position of Trustee (thereby rendering him ineligible to be a candidate in the International Union delegate and officer elections) was in retaliation for his criticism of Mr. Carey and other International union officers. The Election Officer denied the protest. In so doing, she found that the protester had not established that the punishment imposed was “beyond the range of penalties imposed by the GEB in other disciplinary decisions.”
In this case, Ms. Clemerson made the choice to resist what she considered to be retaliatory conduct by failing to perform her duty as a trustee in direct violation of Local Union 783 bylaws and the IBT Constitution. While her suspension may render her ineligible to seek local union office, the Election Officer finds that the punishment, based upon a violation of the IBT Constitution and the local union bylaws is not so disproportionate to the charges as to render it retaliatory for Ms. Clemerson’s actions related to the International officer election or her prior protest activity.[5]
The Election Officer also considered Ms. Clemerson’s claim that the decision manifests hostility towards her. Neither the references to the election contained in the decision nor the decision as a whole provide sufficient evidence to establish a correlation between the penalty imposed and protected activity during the recent International officer election.
The protester also presents four cases which she asserts establish a pattern of retaliation by Mr. Vincent against his political opponents. The Election Officer finds these cases too remote and tangential to the instant protests to be supportive of the position Ms. Clemerson asserts. Furthermore, the record shows that animosity has existed between the opposing political camps within Local Union 783, prior to the 1995-1996 election period. Ms. Clemerson has admitted that her criticism of Mr. Vincent’s administration goes beyond her support for Mr. Carey and her filing of election protests. The cases offered by the protester do not establish retaliation under the Rules.
Accordingly, the protest is DENIED.
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:
Rebecca Clemerson
April 30, 1997
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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, 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
Joe F. Childers, Adjunct Regional Coordinator
[1]The Election Appeals Master reversed on the grounds that the evidence did not support the Election Officer’s decision that Mr. Thomason’s actions were retaliatory. In Re: Clemerson, 97 - Elec. App. - 314 (KC) (February 17, 1997).
[2] Mr. Sever’s letter, dated December 9, 1996 and reviewed in detail by the Election Officer in P-1339, informed Ms. Clemerson that, consistent with Article X, Section 8(b) of the IBT Constitution, a trustee has a duty to sign the books if they are “correct and the bank balances verified.”
[3] The language relied on by the Board for this authority is contained in Section 13(c) of the Local Union 783 Bylaws which states that “[a]ll officers of the local Union must, as a condition of holding office, execute all forms required by law to be filed with any federal or state agency.”
[4]These notices were from Local Union President William Norris and Mr. Thomason. Mr. Norris’ notice addresses a petition from Ms. Clemerson’s co-workers seeking to have the internal union charges dropped. The notice defends the internal union charges as proper. Mr. Thomason’s notice is about an effort to collect money to send Ms. Clemerson and Sheila Fuller, a political ally of Ms. Clemerson, out of town to assist in the presentation of a previously denied grievance. While both notices are critical of Ms. Clemerson, they relate solely to internal union matters.
[5]In reaching this conclusion, the Election Officer is considering solely whether the penalty is retaliatory under the Rules. Whether the penalty is otherwise fair and appropriate is left for consideration through the IBT’s internal procedures.