February 18, 1998
VIA UPS OVERNIGHT
Craig Gonsalves
February 18, 1998
Page 1
Craig Gonsalves
4836 Larimer Way
Castro Valley, CA 94546
Chuck Mack, Sec.-Treas.
Teamsters Local Union 70
70 Hegenberger Road
Oakland, CA 94621
Marty Frates, Business Rep.
Teamsters Local Union 70
70 Hegenberger Road
Oakland, CA 94621
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
Craig Gonsalves
February 18, 1998
Page 1
Re: Election Office Case No. PR-038-LU70-PNW
Gentlemen:
Craig Gonsalves, a member of Local Union 70, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Local Union 70. Mr. Gonsalves alleges that Local Union 70 has retaliated against pro-Carey shop stewards at the United Parcel Service (“UPS”) Oakland California hub facility in violation of the Rules.
Local Union 70 asserts that its officials do not have knowledge of or interest in the political affiliations of their stewards and have not retaliated against pro-Carey stewards.
This protest was investigated by Regional Coordinator Christine M. Mrak.
Craig Gonsalves
February 18, 1998
Page 1
Local Union 70 represents UPS employees at the Oakland hub facility and at the Oakland Airport. Business Agent Marty Frates is in charge of the terminal. Chuck Mack is secretary-treasurer of Local Union 70. The local has written “Rules and Regulations Regarding Shop Steward” which demonstrate the following: 1) while the stewards and alternate stewards are elected to their positions, a business agent may appoint a steward on a temporary basis due to the absence of a regular steward; 2) all shifts shall elect their own stewards; and 3) no steward shall be removed from the job until the charges against him have been proven. Section 14 (F) of the Local Union 20 Constitution and Bylaws states that “Business Agents shall be empowered to appoint the Steward or Stewards at the respective terminals . . . provided that they first give those involved the opportunity for election of such.”
Mr. Gonsalves was elected as a steward in 1980. He has actively supported Mr. Carey in the International officer election. On August 7, 1995, the protester was advised that he would be fired from his UPS job because he had not complied with company rules regarding appearance. At that time he took a 30-day leave of absence from his job and role as steward. Mr. Frates states that Mr. Gonsalves informed him on August 7 that he was resigning as steward. On August 8, Mr. Frates sent the protester a letter accepting his alleged resignation. He then appointed a replacement steward.
Mr. Gonsalves asserts that he did not resign on August 7, but merely indicated to Mr. Frates his desire to take a leave of absence. On October 31, 1996, the protester filed a charge with the National Labor Relations Board (“NLRB”) concerning his steward post. That charge was dismissed as time-barred on February 27, 1997. Both parties continue to dispute Mr. Gonsalves’ status as steward.
The protester supports his retaliation charge by describing the dismissal, replacement, and threatened removal of other UPS stewards who supported the Carey campaign. He specifically cites the removal of Oakland hub facility stewards Kim Marchant and Maran Wilson, the removal of Oakland Airport stewards Jerome Otis, Ken Green, and Scott Reid; and the threatened removal of the Oakland hub facility steward, David Dodinez.
The investigation has determined the following facts regarding the dismissals, replacement, and threatened removal of the above-mentioned individuals:
1) Kim Marchant was appointed as steward in the Fall of 1996. She was removed and replaced with a pro-Hoffa steward by Mr. Frates on July 29, 1997. Ms. Marchant and Mr. Frates agree that her removal was in retaliation for a dispute over internal union affairs and was not connected to the International election;
2) Maran Wilson was originally appointed as an alternate steward. At a later date his original job was abolished and he transferred to a different shift. On July 26, 1997, Mr. Frates informed Mr. Wilson that he was no longer a steward due to the shift transfer. The Local Rules specify that “all shifts shall elect their own stewards.” There is no evidence of a campaign related motive for this dismissal;
Craig Gonsalves
February 18, 1998
Page 1
3) David Godinez remains a steward at the Oakland hub facility. Both parties agree that he was threatened with removal for arranging a meeting of stewards without advising or inviting Mr. Frates. There was no evidence presented of a campaign related motive for this dismissal;
4) There is no dispute that Jerome Otis was removed as steward after he was suspended by the Local Union Executive Board for failing to comply with financial obligations; and
5) Both Ken Green and Scott Reid were reinstated as stewards after initially being dismissed.
The Rules at Article XIV, Section 2(b) state that preelection protests “must be filed within two (2) working days of the day when the protester becomes aware of the action protested or such protests shall be waived.” The requirement to promptly file protests is an important part of the election process. The short time limits were designed to ensure that alleged violations of the Rules would be quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy in the event a violation is found. Nevertheless, the Election Officer has not treated time limits as an absolute jurisdictional requirement, but rather a prudential restriction.
The instant protest was filed on November 17, 1997, approximately six months after the latest dismissal of any pro-Carey steward, nearly 27 months after the original replacement of Mr. Gonsalves himself, and almost eight months after his complaint to the NLRB was dismissed as untimely. While Mr. Gonsalves alludes to an ongoing “systematic practice of illegally removing pro-Carey stewards” in his protest, the Election Officer finds that the allegations referred to in the protest do not constitute ongoing violations of the Rules. As the Election Appeals Master stated in In re: Heiman, 96 - Elec. App. - 172 (KC) (April 18, 1997):
Circumstances, especially the long public exposure of a violation, may give rise to a conclusion that a concerned party can reasonably be held to have constructive knowledge of said violation, with his failure to act under such circumstances being an appropriate basis upon which to find that any protest right has been waived.
As Mr. Gonsalves has been presumptively aware of the existence of a potential violation for a period of time greatly exceeding the traditional two-day limit, there is no excuse for his failure to file. Consequently, the Election Officer finds that the protest is untimely. See Ruscigno, P-144-LU337-MGN (October 4, 1995), aff’d, 95 - Elec. App. - 25 (KC) (October 18, 1995), Young, P-423-LU41-MOI (April 4, 1996). However, as allegations of retaliation are considered a severe violation of the Rules, the Election Officer will address the merits of this protest regardless of its untimely status.
Craig Gonsalves
February 18, 1998
Page 1
Article VIII, Section 11(f) of the Rules prohibits any retaliation against anyone by the Union or its agents for exercising any right guaranteed by the Rules. No violation of this section 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 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.
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/he 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).
Craig Gonsalves
February 18, 1998
Page 1
In the instant matter, the Election Officer finds that there have been serious animosities between pro-Hoffa Business Agent Frates and a number of Local Union 70 pro-Carey stewards, including Mr. Gonsalves. Despite the pronounced partisan emnity between the parties, there is evidence of the existence of a reasonable independent basis for the discharge of the stewards from their appointed office which defeats the allegation of improper motivation. Consequently, the investigation does not support the protester’s contention that all of the stewards were dismissed due to their support for Mr. Carey. The Election Officer finds that the dismissals were not related to the election or a violation of the Rules. The Election Officer is not free to address all conduct which occurs in the general context of the election and during the election period, unless the conduct is actionable 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 one (1) 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
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
MGC:chh
cc: Kenneth Conboy, Election Appeals Master
Christine M. Mrak, Regional Coordinator