Protest Decisions

June 2, 1998

VIA UPS OVERNIGHT

Mark Clark

June 2, 1998

Page 1

Mark Clark

8004 Cureton Circle

Las Vegas, NV  89128

Mike Magnani, President

Teamsters Local Union 995

300 Shadow Lane

Las Vegas, NV  89106

Steve H. Burrus, Secy. - Treas.

Teamsters Local Union 995

300 Shadow Lane

Las Vegas, NV  89106

Lewis N. Levy, Esq.

Levy, Stern & Ford

3660 Wilshire Blvd., No. 638

Los Angeles, CA  90010

Victor M. Perri, Esq.

Victor M. Perri, & Assoc.

633 South Fourth, Suite 4

Las Vegas, NV  89101

Mark Clark

June 2, 1998

Page 1

Re: Election Office Case No. PR-055-LU995-PNW

Gentlemen:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Mark Clark against Local Union 995.  Mr. Clark, currently an inactive member of Local Union 995, alleges that he has not been referred for permanent full-time work within the jurisdiction of Local Union 995 because of his support for Ron Carey in the initial election and in retaliation for election protests previously filed by him.  As a result of this improper conduct, Mr. Clark contends, he has been unable to qualify for active union membership and will be deprived of his right to vote in the rerun election. 

Local Union 995 states that the protester was dispatched to permanent full-time work within its jurisdiction in July 1997 and contends that he has not been referred to other job opportunities for reasons which are legitimate and not retaliatory or election-related. 

The protest was investigated by Regional Coordinator Christine R. Mrak.

Mark Clark

June 2, 1998

Page 1

Local Union 995 represents hotel employees in the Las Vegas area and operates a hiring hall for workers in the hotel industry.  Individuals are “dispatched” to signatory employers from rosters maintained by Local Union 995 specifically for the purpose of responding to requests for workers.  A dispatch guarantees a job interview but not actual employment. 

For many years, Mr. Clark worked pursuant to a Local Union 995 collective bargaining agreement for the Fremont Hotel as a receiving clerk.  On August 4, 1994, Mr. Clark’s bargaining unit voted to decertify and Local Union 995 lost its exclusive authority to represent him.  Mr. Clark was permitted by Local Union 995 to continue paying union dues and remain an active member.  In June 1995, he requested a withdrawal card and stopped paying the dues, but resumed payment of his dues in September 1995 without objection by Local Union 995.  At that time, he received a dispatch from the hiring hall.  However, since the dispatch did not result in Mr. Clark obtaining work covered by a Local Union 995 collective bargaining agreement, he continued to seek permanent full-time union work opportunities through Local Union 995's hiring hall.[1] 

Local Union 995 held elections for local office in November 1995.  The successful candidate for union president was Mike Magnani.  Mr. Clark actively campaigned for Mr. Magnani’s opponent.  During Mr. Magnani’s term as president, the secretary-treasurer of Local Union 995 was Steve Burrus.  On July 1, 1997, Mr. Magnani succeeded Mr. Burrus to that office.  In addition to his campaign activity for local union candidates, Mr. Clark was an open, vocal, and visible supporter of Mr. Carey for the office of general president.  Both Mr. Magnani and Mr. Burrus are strong supporters of James P. Hoffa, a candidate for general president who opposed Mr. Carey in the initial election. 

A few weeks before the vote for International officers in November 1996, Mr. Clark filed a protest against Local Union 14, also located in Las Vegas.  He charged that Local Union 14, through the actions of Secretary-Treasurer Gary Mauger, improperly promoted Mr. Hoffa’s candidacy by using union money to contract with a private publisher to produce a newspaper which contained campaign material.  The Election Officer granted this protest and required Local Union 14 to distribute ten pages of campaign material submitted by the Carey Campaign to each of its members.  Clark, P-1132-LU14-CLA (November 13, 1996). 

Mark Clark

June 2, 1998

Page 1

Five days later, Local Union 995 issued Mr. Clark a withdrawal card, an action which removed him from the roster of active members.  Mr. Clark filed a protest with the Election Officer.  He alleged that Local Union 995's action was in retaliation for his support of Mr. Carey and his filing of a meritorious protest against Local Union 14.  In support of his allegation, Mr. Clark pointed out that he had been permitted to remain a dues paying member for the previous 26 months despite his failure to be employed under a Local Union 995 collective bargaining agreement.  He also referred to the Election Officer’s decision against Local Union 14, which had issued only a few days before.

The Election Officer denied Mr. Clark’s protest because the action taken by Local Union 995 was specifically required by Article XVIII, Section 6(a) of the IBT Constitution, which provides that any member who has not worked in a job under the jurisdiction of a local union for six months be must placed on withdrawal.  However, because of the suspicious timing of the action, the Election Officer ordered that a notice be posted at Local Union 995 for 30 days reminding members that they have the “right to support candidates of their choice and to file protests with the Election Officer . . . without fear of retaliation or intimidation.”  Clark, P-1282-LU995-EOH (December 2, 1996). 

Over the next two months, Local Union 995 did not accept dues payments from Mr. Clark.  On February 10, 1997, Mr. Clark appeared in person at Local Union 995 to register for the hiring hall.  Local Union 995 contends and Mr. Clark agrees, that he also attempted during this visit to deposit his withdrawal card and resume the status of an active member.  While hiring hall registrations are routinely handled by Local Union 995 clerical staff, requests to resume active membership status are not.  After consultation with a supervisor, the hiring hall clerk referred Mr. Clark’s requests to the Local Union 995 Executive Board.  On February 26, 1997, Mr. Clark received a letter from Mr. Burrus informing him of the Executive Board’s action.  The letter stated in pertinent part as follows:

The Executive Board met on Friday, February 21, 1997 to consider placing you on the out-of-work list at the Teamsters Local 995 dispatch office.  It was decided at this time to allow you to be dispatched out for work in the classifications of your choosing for work covered by our jurisdiction.  However, it was also decided that the Local will not at this time require dues from you until such time as you find covered employment.

The minutes of the meeting merely report that a motion was made, seconded, and adopted “to disapprove the application of Mark Clark for membership.”

In May 1997, Mr. Clark learned that several receiving clerk positions might become available at the Riviera Hotel.  To be eligible for a referral, he once again appeared at Local Union 995 and was allowed to complete the hiring hall registration process.  Since that time, Mr. Clark has remained continuously on the hiring hall list as a paid registrant.

Mark Clark

June 2, 1998

Page 1

The hiring hall dispatches for full-time laborer/receiver were reviewed for the period beginning May 1, 1997, and ending with the date the protest was filed to determine whether Local Union 995 failed to dispatch Mr. Clark to any job interview for which he was qualified and a senior registrant.  Only two of these instances appeared to fit this criteria.  On the first, Local Union 995 insists that Mr. Clark was called and did not respond.  Mr. Clark contends that he was never called.  On the second, the hiring hall records do not indicate, at first glance, that Mr. Clark was qualified for the positions being offered.  Mr. Clark contends that he was qualified.  Even assuming a failure to dispatch Mr. Clark, there is no evidence that on either occasion the reason related to the IBT International officer election or Mr. Clark’s prior participation in the protest process.

On November 9, 1997, Local Unions 14, 631, and 995 jointly sponsored a family picnic.  No campaign activity was permitted at this function and no candidates were notified in advance of the event.  See, Rules at Article VIII, Section 5(a)(4).  Mr. Clark and several others appeared at the picnic and displayed a large campaign sign supporting the candidacy of Mr. Carey.  Officers of the various local unions sponsoring the picnic asked Mr. Clark and the others to remove the sign and the campaigners ultimately complied.

Article VIII, Section 11(f) of the Rules prohibits retaliation against any member by the Union or its agents for exercising any right guaranteed by the Rules.  Article VIII, Section 11 (a) protects a member’s right to participate in campaign activity.  No violation of Article VIII, Section 11(f) can be sustained, however, 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).  Conduct is not retaliatory unless it “embodies a palpable threat of actual harm.”  Blake, P-785-LU630-CLA (June 19, 1996).  See also Dunn, P-110-LU25-BOS (July 28, 1995), aff’d, 95 - Elec. App. - 8 (KC) (August 21, 1995); Kelly, P-600-LU705-CHI et seq. (March 27, 1991); Schweitzer, P-672-LU896-CLA (March 25, 1991), aff’d, 91 - Elec. App. - 118 (SA) (April 31, 1991); In Re: Sullivan, 95 - Elec. App. - 2 (KC) (July 14, 1995).  There is no retaliation where the Election Officer concludes that the union officer or entity would have taken the same action even in the absence of the protester’s protected conduct.  Gilmartin, P-032-LU245-PNJ (January 5, 1996), aff’d, 95 - Elec. App. - 75 (KC) (February 6, 1996).  See 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). 

Mark Clark

June 2, 1998

Page 1

On this record, there is insufficient evidence to demonstrate that Local Union 995's failure to refer Mr. Clark to additional job interviews was improper or that Mr. Clark’s support for Mr. Carey was a motivating factor.  Such animosity as exists between Mr. Clark and the leaders of Local Union 995 derives at least in large part from a local union election campaign over which the Election Officer exercises no jurisdiction.  See, Rules, Article 1.  The events prior to December 2, 1996, were reviewed in a prior case and it was determined that, according to IBT Constitution and Mr. Clark’s failure to work under a Local Union 995 collective bargaining agreement within a prior six month period, no Rules violation occurred.  The referral of Mr. Clark’s request to register for the hiring hall to the Executive Board on February 10, 1997, does not establish improper motivation, in the context of his stated objective to resume the status of an active member.  The events as they occurred at the jointly sponsored picnic were consistent with the decision to prohibit campaigning and is not evidence of an improper motive.

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 Cherkasky

Election Officer

MGC:chh

cc:              Kenneth Conboy, Election Appeals Master

Christine R. Mrak, Regional Coordinator