Protest Decisions

              August 14, 1998

VIA UPS OVERNIGHT

David A. Eckstein

August 14, 1998

Page 1

David A. Eckstein

35 E Street, NW, No. 110

Washington, DC  20001

Tom Sever

General Secy. - Treas.

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Michael R. Smith, Esq.

Jonathan H. Levy, Esq.

Zuckerman, Spaeder, Goldstein,

  Taylor, & Kolker, LLP

1201 Connecticut Avenue, NW

Washington, DC  XXX-XX-XXXX

Thomas W. Leedham

c/o Thomas W. Leedham Campaign Office

Post Office Box 15877

Washington, DC  20003

Arthur Z. Schwartz, Esq.

Kennedy Schwartz & Cure, PC

113 University Place

New York, NY  10003

David L. Neigus

Deputy General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

William D. Basham

4511 Basham Lane

Sunbury, OH  43074

Dale Irwin

Field Services

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Douglas J. Webber

35 E Street, NW

Apartment 314

Washington, DC  20001

Dave Keaton

9369 Ewers Drive

St. Louis, MO  63126

Dale Arthur

42 Ridgewood Drive

Alexandria, KY  41001

Bob Blanchet

3853 Dryden Road

Fremont, CA  94555

Sam Carter

Executive Assistant to Acting General

  President/Secy. - Treas. Tom Sever

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Joe Henry

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

David A. Eckstein

August 14, 1998

Page 1

Steven Tabackman, Esq.

Tighe, Pattou, Tabackman & Babbin

1747 Pennsylvania Avenue, NW

Suite 300

Washington, DC  20006

Dick Collis

2618 West Palo Verde Drive

Phoenix, AZ  85017

Gary Stevenson

Organizing Department

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Jim Benson, Vice - President-at-Large

International Brotherhood of Teamsters

4444 West Northern Avenue

Suite A-2

Glendale, AZ  85301

Timothy M. Raiter

1403 Prentice Street

Arlington, TX  76018

Mark Junod

1326 Xaveria Drive

Silver Spring, MD  20903

Jim Powell

200 St. Benedict Lane

Florissant, MO 63033

              TABLE OF CONTENTS

I.              Summary of Investigative Activity              5

II.              Summary of Findings              6

III.              Findings of Fact              7

A.              Actions Directed at Field Services Department Staff              7

1.              The Field Services Department              7

2.              Dave Eckstein Joins the Leedham Slate              8

3.              Changes in the Field Services Department After June 15, 1998              11

a.              Installation of Joe Henry as Co-Director of the Field Services Department              11

b.              Reassignment of Field Services Department Staff              14

c.              Other Changes in Eckstein’s Job Responsibilities              20

B.              Actions Directed at the Director of the Carhaul Division              21

C.              Changes in the Conduct of the Kroger Negotiations              26

IV.              Conclusions              31

A.              Retaliation              31

B.              Specific Conclusions on Protest              33

1.              David Eckstein              33

2.              Employees and Field Representatives Assigned to the Field Services Department              34

3.              Dale Irwin              34

4.              International Representatives              35

5.              Jim Powell              36

6.              Dick Collis              37

7.              Doug Webber              38

8.              Kroger Negotiations and Retaliation Against Mr. Leedham              38

V.              Remedy              39

A.              Introduction              39

B.              The Remedy of Disqualification is Not Appropriate              40

C.              Remedies Ordered              42

David A. Eckstein

August 14, 1998

Page 1

Re:  Election Office Case Nos. PR-135-IBT-SCE                            [CORRECTED]

    PR-142-IBT-SCE

    PR-143-IBT-SCE

    PR-144-IBT-SCE

    PR-148-IBT-SCE

    PR-151-IBT-SCE

    PR-152-IBT-SCE

    PR-153-IBT-SCE

    PR-154-IBT-SCE

    PR-171-IBT-SCE

    PR-174-IBT-SCE

    PR-176-IBT-SCE

    PR-178-IBT-SCE

Pre-election protests were filed under Article XIV, Section 2(a) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by the following IBT members:

David Eckstein (PR-135, PR-142), a member of Local Union 661, IBT Director of Field Services, and a candidate for International Trustee on the Tom Leedham Rank and File Power Slate (“Leedham Slate”);

William Basham (PR-143, PR-176), a member of Local Union 413 and an IBT International Representative;

Dale Irwin (PR-144), an IBT employee who works as a Special Projects Coordinator in the Field Services Department (“Field Services”);

Doug Webber (PR-148), a member of Local Union 299, Director of the IBT National Automobile Transporters Industry Division (“Carhaul Division”), and a candidate for At-Large Vice President on the Leedham Slate;

Dave Keaton (PR-151), a member of Local Union 600 and an IBT International Representative;

Dale Arthur (PR-152), a member of Local Union 100 and an IBT International Representative;

Bob Blanchet (PR-153), a member of Local Union 287 and an IBT International Representative;

Dick Collis (PR-154), a member of Local Union 104 and an IBT Project Organizer;

David A. Eckstein

August 14, 1998

Page 1

Tim Raiter (PR-171), a member of Local Union 767 and an IBT Representative;

Mark Junod (PR-174), a member of Local Union 311 and an IBT International Representative assigned to the Warehouse Division; and

Jim Powell (PR-178), a member of Local Union 688 and an IBT International Representative assigned to Field Services.

The protests filed by these 11 individuals have a common theme.  All of the protests are directed against Acting General President and General Secretary - Treasurer Tom Sever and Executive Assistant to the Acting General President Sam Carter.  Mr. Sever is a candidate for General Secretary - Treasurer on the John Metz Slate (“Metz Slate”).  Messrs. Eckstein and Webber are candidates on the Leedham Slate.  Messrs. Basham, Keaton, Arthur, Blanchet, Collis, and Ms. Irwin all allege that they support the candidacies of Messrs. Eckstein and Leedham.  The protesters allege that General Secretary - Treasurer Sever and Mr. Carter retaliated against them because of their support for Mr. Leedham.  Each alleges that Messrs. Sever and Carter drastically changed their IBT job responsibilities after the protesters affiliated with, or announced their support for, the Leedham Slate.  Thus:

              Messrs. Eckstein, Basham, Keaton, Arthur, Blanchet, Collis, and Ms. Irwin allege that Messrs. Sever and Carter stripped the Field Services Division of personnel and responsibilities, and reduced the scope of Mr. Eckstein’s authority over field campaigns in retaliation for the protesters’ support for the Leedham Slate.  This included the abrupt termination of approved, ongoing field campaigns and the redeployment of Field Services staff to other projects away from Mr. Eckstein’s authority.

              Mr. Webber alleges that Messrs. Sever and Carter took responsibility away from him as head of the Carhaul Division.

              Mr. Sever and Mr. Carter allegedly withdrew authority from Tom Leedham to conduct ongoing negotiations with a major employer after Mr. Leedham became a publicly declared candidate.

David A. Eckstein

August 14, 1998

Page 1

              Mr. Eckstein and others allege that Mr. Carter retaliated against Field Services staff and Mr. Eckstein by ordering the cessation of an ongoing campaign coordinated between Field Services and Local Union 2000 just before ten previously scheduled rallies were to occur.

Messrs. Sever and Carter deny that union politics played any part in the decisions about IBT personnel or other IBT matters.  They claim that all decisions were made to save the IBT money, to promote efficient operations, and to ensure that employees were not campaigning on IBT time or using IBT resources.

These protests were investigated by Regional Coordinator J. Griffin Morgan, Deputy Election Officer Benetta M. Mansfield and Election Office Staff Attorney Peter Gimbrère.

1. Summary of Investigative Activity

The Election Office contacted the IBT Legal Department immediately after receiving the first protest and requested production of pertinent documents.  File materials were requested from the IBT pertaining to the union’s internal reorganizations that gave rise to these protests.  The Election Officer made a specific written request for production of documents from the files of Mr. Sever, Mr. Carter, and Joe Henry, International Representative and Assistant Director of Field Services, including drafts or planning documents, pertaining to the reorganization of Field Services.

After the protests were filed, the Election Officer received a report that the IBT had removed personal computers from the desks of Mr. Murphy, and Ms. Irwin, both of whom worked for Mr. Eckstein in the Field Services Department, and Mr. Kapsa in the Education Department.  The Election Office requested the computers for analysis of the stored information, and the IBT produced them promptly.

David A. Eckstein

August 14, 1998

Page 1

Twelve witnesses were questioned on the record and under oath.  IBT employee witnesses had the right to be represented by counsel in these examinations, but counsel for the IBT was not present.  Messrs. Sever and Carter were represented by the IBT’s outside counsel during their examinations.

The IBT and involved witnesses cooperated fully in this investigation.  Requested documents and witnesses were made available promptly on request, and without objection.

2. Summary of Findings

Messrs. Sever and Carter retaliated against Mr. Eckstein, Mr. Webber, Ms. Irwin, and Mr. Leedham by drastically changing their job responsibilities.  These changes occurred, without warning to those involved, after the protesters affiliated with or announced their support for the Leedham Slate.  The retaliatory actions included the abrupt change or degradation of job responsibilities; the elimination of staff assigned to Field Services under Mr. Eckstein; and the sudden termination of previously approved and ongoing field campaigns under Mr. Eckstein’s direction.

The explanation offered by Messrs. Sever and Carter for these changes is not credible.  There is no documentary support for the assertion that the changes were worked out and planned as a money-saving effort.  Indeed, there is only meager documentary support for the contention that these changes had been at all planned before they actually occurred.  Assuming that these changes reflected plans made one or more months before they occurred, nothing explains the coincidence of making these changes just when the protesters announced their support for the Leedham Slate.  There is, however, documentary evidence and witness testimony that supports the finding that union politics influenced the decisions on internal reorganization made by Mr. Carter and Mr. Sever.

David A. Eckstein

August 14, 1998

Page 1

3. Findings of Fact
1. Actions Directed at Field Services Department Staff
1. The Field Services Department

Tom Sever is the General Secretary - Treasurer and Acting General President of the IBT.  Mr. Sever became the Acting General President when General President Ron Carey took a leave of absence from his position on November 19, 1997.  During Mr. Carey’s tenure as general president, Aaron Belk served as Executive Assistant to the General President.  In that job, Mr. Belk was responsible for ensuring the smooth operation of the general president’s office.  The Executive Assistant had the authority to approve all expenditures from the general fund.

In approximately February 1998, Mr. Belk returned to Mississippi while retaining his duties as both Executive Assistant to the General President and Southern Region International vice - president.  On April 13, 1998, Mr. Sever designated Sam Carter as Special Assistant to the Acting General President.  Carter Tr. at 5.  A short time later, and apparently under the authority of Mr. Sever, Mr. Carter was named Executive Assistant to the Acting General President replacing Mr. Belk.  Immediately prior to this appointment, Mr. Carter had been trustee of Local 745 in Dallas, Texas.  During all of the times relevant to this protest, Jim Bosley was the Executive Assistant to Mr. Sever in his capacity as general secretary - treasurer.

As Executive Assistant, Mr. Carter describes his job as “to make sure that things are done correctly and right as far as the General President is concerned.” Carter Tr. at 6.  Mr. Carter states that “[j]ust about any function in that building comes through my office.”  Id.  Mr. Sever states that Mr. Carter reports directly to him.  Sever Tr. at 9.

David A. Eckstein

August 14, 1998

Page 1

In March 1997, General President Ron Carey created the Field Services Department.  This department was given responsibility for organizing and coordinating member campaigns to support contract negotiations, contact ratifications, and strikes.  Before Mr. Carey created the department, the International provided this service by using a small staff in the General President’s office.  Mr. Carey named Dave Eckstein the Director of the Field Services Department and named Joe Henry, an International Representative who had worked in the field services function out of the General President’s office, as Assistant Director.  Mr. Henry’s main responsibilities were to supervise special projects.  He did not have day-to-day supervisory responsibility over Field Services staff.  Henry Tr. at 19-20.  The work of the Field Services Department was performed by approximately 18 International Representatives detailed to the department.

Mr. Eckstein continued as Director of the Field Services Department after Mr. Sever became the acting general president in November 1997.  Several witnesses gave testimony in this investigation that Mr. Sever appeared to develop a close working relationship with Mr. Eckstein in late 1997 and early 1998 and often sought Mr. Eckstein’s advice during that time.

At IBT headquarters, the Field Services Department is located in two offices joined by a connecting door.  Mr. Eckstein, Mr. Henry, and Kelly Mulligan, the office manager, shared one office.  Michael Murphy, staff coordinator, and Ms. Irwin, special projects coordinator, share the second office.  Field Services is on the same hall as the Acting General President’s offices and next door to Mr. Carter’s office.

2. Dave Eckstein Joins the Leedham Slate

On May 22, 1998, Tom Leedham announced his candidacy for general president of the IBT.  Mr. Leedham then sought to fill out a slate of candidates for the election.

David A. Eckstein

August 14, 1998

Page 1

Some time before June 11, 1998, Mr. Eckstein discussed his views of IBT politics with Ed Burke, an assistant to the acting general president, and Bob Hauptman, the special assistant to the general president for management and budget.  Mr. Eckstein told Mr. Burke and Mr. Hauptman that if the slate Mr. Sever ultimately joined did not reflect the interests of the IBT “reform” movement that, on or after June 11, he would publicly support the Leedham Slate.  Eckstein Tr. at 33-35.  Mr. Hauptman confirmed this conversation in his testimony.  Hauptman Tr. at 7.

During the second week in June, Mr. Leedham contacted Mr. Eckstein and asked him to run on his slate.  Messrs. Leedham and Eckstein both traveled to Cleveland, Ohio, to attend the IBT Women’s Conference on June 11 through June 13, 1998.  On Thursday night, June 11, Mr. Eckstein telephoned Mr. Leedham and agreed to run on the Leedham Slate for an International Trustee slot.  Eckstein Tr. at 25.

News of candidate announcements circulated at the IBT Women’s Conference.  On June 12, 1998, it was announced that Mr. Sever would run for general secretary - treasurer on the Metz Slate.  According to Mr. Eckstein, Joseph Padellaro, a candidate for Eastern Region Vice - President on the Metz Slate, approached him on that date and stated that Mr. Eckstein was making a “big mistake” by running with Mr. Leedham and that there was a spot for Mr. Eckstein on the Metz Slate.  Eckstein Tr. at 29-30.  The next day, Mr. Eckstein’s affiliation with the Leedham Slate was announced publicly at a fundraiser held in a hotel room at the same site as the Women’s Conference.  Mr. Eckstein testified that on both June 13 and 14 he was also approached by Sergio Lopez, a candidate for At-Large Vice President on the Metz Slate, who “tried to convince [Eckstein] that [he] was making a mistake.”  Eckstein Tr. at 32-33.

David A. Eckstein

August 14, 1998

Page 1

Mr. Eckstein returned to his office at IBT headquarters on Monday, June 15.  That evening, Messrs. Eckstein and Henry had a telephone conversation in which Mr. Henry stated that he now intended to support the Metz Slate.[1]  Eckstein Tr. at 98-99.  Previously, Mr. Henry had been an avowed supporter of Mr. Leedham.  Henry Tr. at 8-9.  Indeed, Mr. Eckstein had called Mr. Henry to ask him to make telephone calls to campaign for Mr. Leedham.  Mr. Henry’s switch to the support of the Metz Slate surprised Mr. Eckstein.

Mr. Eckstein’s affiliation with the Leedham Slate was well known.  Mr. Padellaro’s statements on June 12, Mr. Lopez’s statements on June 13 and 14, and Mr. Henry’s statements on June 15, all show that persons in IBT headquarters, close to Mr. Sever, knew that Mr. Eckstein had gone beyond deliberations and had actually joined the Leedham Slate.

David A. Eckstein

August 14, 1998

Page 1

At IBT headquarters on Tuesday, June 16, 1998, Mr. Hauptman told Mr. Eckstein “[t]hat Sever had said he could not have Eckstein and Webber around if they are going to run on the slate against him.”[2]  Messrs. Hauptman and Eckstein both testified to their conversation.  Hauptman Tr. at 10-12; Eckstein Tr. at 37.  Mr. Hauptman testified that Mr. Sever stated his antipathy towards Mr. Eckstein on Friday, June 12, 1998, after he had learned of Messrs. Eckstein and Webber’s intent to run on the Leedham Slate.[3]  Hauptman Tr. at 8-10.  Mr. Sever denies making that statement.  Sever Tr. at 48.  Mr. Bosley, a witness identified by Mr. Hauptman, also denies hearing Mr. Sever make that statement.  Bosley Tr. at 41.

On June 12, 1998, John Metz announced his intention to run for general president and indicated that Mr. Sever would run on his slate as general secretary - treasurer.

3. Changes in the Field Services Department After June 15, 1998

Mr. Sever and Mr. Carter made significant changes to the Field Services Department after Mr. Eckstein joined the Leedham Slate.  These changes reduced Mr. Eckstein’s authority, staff, and job responsibilities.  Most of the actions in question were taken by Mr. Carter.  Mr. Carter reports directly to Mr. Sever, however, (Sever Tr. at 9), and was appointed by Mr. Sever to act as his executive assistant.  The Election Officer finds that when Mr. Carter takes official actions, he does so on behalf of the Acting General President.

1. Installation of Joe Henry as Co-Director of the Field Services Department

David A. Eckstein

August 14, 1998

Page 1

On Wednesday, June 17, Mr. Eckstein was called into Mr. Carter’s office for a meeting with Mr. Carter and Mr. Henry.  Mr. Carter told Mr. Eckstein that, beginning that day, Mr. Henry would have to sign off on all decisions made in Field Services.  Henry Tr. at 20; Eckstein Tr. at 40-43; Carter Tr. at 39-40.  This was a significant change in policy and in Mr. Eckstein’s authority -- Mr. Henry had never signed off on Field Service’s expenditures and/or memoranda.  Henry Tr. at 20-21; Eckstein Tr. at 40-41, 112.  During the meeting, Mr. Carter stated to Mr. Eckstein that he was still the Field Services Director, but that Mr. Henry was also going to approve all decisions.  Mr. Carter also stated that he would not  sign off on anything that did not have both Mr. Eckstein and Mr. Henry’s signatures.  Eckstein Tr. at 40, 45; Henry Tr. at 20-23, 27-28.  Mr. Eckstein responded by referring to the recent announcement of his candidacy.  Mr. Carter refused to put Mr. Henry’s change of status in writing.  Eckstein Tr. at 43.

Mr. Carter denied that this decision was political or that internal union politics influenced any of the decisions that affected Field Services or the Field Services staff.  He testified that he took these actions to de-politicize the Field Services Department during the ongoing campaign. Carter Tr. at 76.  Contemporaneous evidence does not support this explanation.  First, Mr. Carter’s computer contained a note dated June 17, the same day as the meeting, that reads as follows:

First things Thursday -- Meet with Joe Henry and Dave Eckstein.  Inform Eckstein that for the sake of protecting the integrity of this office during the election period he will be working together with Joe Henry.  They will have to sign off on all field assignments.  Any questions about assignment will be submitted to me for assignment.

I want the list of those employees who we can layoff in order to restore integrity to operating cost.  We have got to focus on the cost of Field Services.

Reduce the cost of operating Field Services by laying off Dale Irwin and Mike Murphy immediately.

              *                    *                    *

Ken Wood[4] needs to be reassigned -- is bad mouthing Sever.

Don Scott[5] needs to be replaced with Tyson Johnson.

David A. Eckstein

August 14, 1998

Page 1

Although the memorandum speaks in part of “protecting” Field Services from politics, it also shows explicitly that at least one person was reassigned from his job based on opposition to Mr. Sever.

Two other undated memos, which appear to be from Mr. Carter’s computer and written around June 17, 1998, state that one of the reasons for the transfer of Field Services staff was to insure “no involvement in Local or National politics while working.”  One of the memos also contains a plan for Mr. Henry to assume responsibility for supervising Mr. Murphy and Ms. Irwin.[6]  Those employees, formerly supervised by Mr. Eckstein, were very vocal supporters of Mr. Eckstein and Mr. Leedham.  None of these memoranda has any antecedents or other drafts.  The IBT International officer election was obviously ongoing and known to Mr. Carter even before he became Mr. Sever’s assistant in April, 1998.  There is no written foreshadowing of “political” concerns about Field Services before the June memoranda.

Second, the co-director structure imposed on the Field Services Department was unique.  The Election Office has no evidence that other headquarters departments or divisions, including those headed by candidates in the Rerun Election, were restructured in this way.

David A. Eckstein

August 14, 1998

Page 1

Third, and most significant, the elevation of Mr. Henry to the co-directorship coincided with his switching his support from Mr. Leedham to the Metz Slate and Tom Sever.  Mr. Henry testified that he had been disappointed when Ron Carey named Mr. Eckstein to head the new Field Services Department and that he had always sought more authority in that area.  He also had expressed to Sam Carter his view that he should have control over Field Services.  Henry Tr. at 36, 38.  Until approximately early June, however, Mr. Henry had supported Tom Leedham’s candidacy.  Henry Tr. at 8.  The elevation of Mr. Henry occurred after Mr. Eckstein joined the Leedham Slate, and after Mr. Henry switched his allegiance to the Metz Slate.  Mr. Carter had no memoranda or notes foreshadowing this change -- other than the one dated the same date as the meeting.

2. Reassignment of Field Services Department Staff

Mr. Carter directed the reassignment of Field Services Department staff to the campaign to organize workers at the Overnite Transportation Company (the “Overnite Campaign”).  This reassignment occurred suddenly after Mr. Eckstein’s affiliation with the Leedham Slate.

For many years, the IBT had mounted a campaign to organize employees of the Overnite Transportation Company.  The project was considered a unique effort, and was directed outside of the IBT Organizing Department.  Since 1996, Gary Stevenson has held the job of Overnite Organizing Campaign Director.

The Overnite Campaign was substantially staffed by project organizers, who are not permanent IBT staff, but who are hired out of local unions, while on leave from their positions, on a project-need basis.  The IBT reimburses local unions for the cost of project organizers.

David A. Eckstein

August 14, 1998

Page 1

On June 22, 1998, Mr. Carter and Mr. Henry met with Mr. Stevenson to discuss laying off Overnite Campaign project organizers (viz., returning them to their local unions and shedding that cost at the IBT level) and figuring out a plan to staff and continue the Overnite Campaign.  Mr. Stevenson testified that he identified two members of the organizing department, Melba Coffman and Seth Parks, as individuals whom he would like to have assigned to the Overnite Campaign to replace project organizers slated for layoff.  Stevenson Tr. at 25.  Mr. Stevenson also identified six project organizers he believed were critical to the campaign’s success.  Stevenson Tr. at 25.  Those individuals were not scheduled for layoff.  Messrs. Carter, Henry, and Stevenson agreed to the lay off of ten of the Overnite Campaign project organizers.  Carter Tr. at 28; Stevenson Tr. at 21.

Afterwards, Mr. Henry selected International Representatives from the Field Services staff for transfer to the Overnite Campaign to replace the project organizers.  Mr. Eckstein, the Director of Field Services, was not consulted or involved in the selection of Field Services staff for transfer to the Overnite Campaign.  Eckstein Tr. at 48 -49.

On or about Monday, June 22, 1998, Mr. Henry drafted a series of memos about the transfers.  The information in these memos was ultimately disseminated in a June 24 memo from Mr. Carter to Mr. Stevenson that memorialized who would be reassigned from Field Services to the Overnite campaign.[7]

David A. Eckstein

August 14, 1998

Page 1

Mr. Carter met with Messrs. Henry and Eckstein on Wednesday, June 24, 1998, and discussed the plan for the IBT to lay off certain Overnite Campaign project organizers and replace them with Field Services personnel.  That meeting was the first time that Mr. Eckstein learned that staff was to be removed from his department and authority.  Eckstein Tr. at 48.  Mr. Carter told Mr. Eckstein and Mr. Henry that Overnite project organizers were to be laid off on July 3 and would be replaced with, among others, International Representatives then assigned to Field Services.  Eckstein Tr. at 47.  The memorandum to Mr. Stevenson of the same date reads, in pertinent part, as follows:

Furthermore, to continue the IBT’s efforts on the Overnite Campaign, and as discussed earlier, the following International Organizers and Representatives will be assigned to your department, effective July 6, 1998:

1.              Melba Coffman  (IBT Organizer)

2.              Seth Parks                 (IBT Organizer)

3.              Sean Murray                 (IBT Representative)

4.              Tim Raiter                 (IBT Field Coordinator)

5.              Gordy Teller                 (IBT Organizer)

6.              Dan Basham                 (IBT Organizer)

7.              Dale Arthur                 (IBT Field Coordinator)

8.              Dave Keaton                 (IBT Representative)

9.              Glen Davis                 (IBT Representative)

10.              Terry Lovan                 (IBT Representative)

11.              Rob Halsted                 (IBT Field Coordinator)

12.              Bob Blanchet                 (IBT Representative)

Thus, ten staff members assigned to Field Services (more than one-half of the staff) were reassigned without prior notice to the Department Director, Mr. Eckstein.[8]

David A. Eckstein

August 14, 1998

Page 1

Mr. Sever and Mr. Carter offered explanations for the staffing change and denied that union politics had motivated the redeployment.  Their primary explanation was that the project organizers were laid off from the IBT to save money, and that the International Representatives assigned to the Field Services Department were not fully utilized.  Sever Tr. at 39, 42, 49; Carter Tr. at 24.  Mr. Carter also asserted that the reorganization had been planned long before Mr. Eckstein affiliated with the Leedham Slate and that file memos existed that would back up that claim.[9]  Carter Tr. at 24, 26-28, 29, 31.

The facts found in the investigation did not corroborate the assertion that the Field Services Department International Representatives were underutilized.  First, at the time of the reorganization, there were ongoing or planned campaigns concerning Anheuser-Bush, Kroger Warehouse, the Carhaul contract, and Northwest Airlines.  The Field Services staff was allocated to perform the work required by these campaigns.  Mr. Sever and Mr. Carter knew of, and had approved these campaigns, as evidenced by the following:

1.  a May 12, 1998 memo from Mr. Eckstein to Mr. Sever requesting the assignment of Field Services’ staff to the Kroger campaign;

2.  numerous approvals by both Mr. Sever and Mr. Carter in April and May 1998 of travel authorizations for the  Kroger negotiations;

David A. Eckstein

August 14, 1998

Page 1

3.  a May 16, 1998 memo from Mr. Webber to Mr. Sever (approved by Mr. Sever on May 21) advising him of the timetable for the Carhaul contract campaign which specifically mentions the use of Field Services;

4.   the April 1998 Field Services Report to the General Executive Board (“GEB”) describing ongoing efforts with both the Anheuser-Busch campaign and the Carhaul campaign; and

5.  the July 1998 Field Services Report to the GEB describing future assistance to the Northwest Flight Attendants contract campaign and providing further description of efforts related to the Anheuser-Busch and Carhaul campaigns.

Mr. Eckstein and Mr. Webber produced documents and testified to staff allocations that used the Field Services staff to conduct these campaigns.  Eckstein Tr. at 45, Webber Tr. at 15-16.[10]  Thus, the investigation found that staff in the Field Services Department had full work assignments.

David A. Eckstein

August 14, 1998

Page 1

Second, the testimony of Mr. Sever and Mr. Carter conflicted on how the allegedly under-utilized staff members were identified.  Mr. Sever testified that Mr. Eckstein had told him, earlier in 1998, that 15 International Representatives were sitting at home doing nothing and that was one of the factors that motivated the decision to redeploy staff out of Field Services.  Sever Tr. at 38-39, 19-20.  Mr. Sever stated that he did not follow up either to identify these allegedly under-employed staff or to get them particular work assignments.  Sever Tr. at 43-46.  Mr. Eckstein denied making the statement, and no other witness corroborated Mr. Sever’s account of the 15 supposed stay-at-home workers.  Eckstein Tr. at 59.

Mr. Carter said that he moved to make the project organizer layoffs and International Representative redeployments based on a list of fifty names for possible layoff he had asked Mr. Eckstein and Mr. Hauptman to compile earlier in 1998.  Carter Tr. at 25; Hauptman Tr. at 21-23.  None of the project organizers on that list, however, was among those laid off.  The layoffs were those agreed upon in the June 22 meeting among Messrs. Carter, Henry, and Stevenson.  None of the project organizers redeployed to the Overnite Campaign was among those identified on the 50-name layoff list.

Mr. Henry gave a third, completely different explanation of how individual Field Services staff members were selected for redeployment.  He testified that seniority was the major criterion used to select staff for redeployment, and he referred to a June 18, 1998 list he obtained from the IBT Human Resources Department listing “IBT REPS, IBT ORGANIZERS, AND PROJECT ORGANIZERS, by seniority.” [11]  Henry Tr. at 37, 54-55.

David A. Eckstein

August 14, 1998

Page 1

Third, there is no documentary trail showing that this reorganization had been long planned.  Mr. Carter testified that drafts of the June 24, 1998 memo had been prepared beginning in May.  Carter Tr. at 27.  The Election Officer requested production of all drafts, but the IBT had none to produce before Mr. Henry’s June 22, 1998 drafts.  Furthermore, Mr. Henry stated that the only drafts he prepared of the June 24 memo were the ones written at the end of the selection process.  Henry Tr. at 53, 54.  There is no evidence that anyone else authored drafts of the June 24, 1998 redeployment memo.[12] 

As a result of the redeployment, staff assigned to the Field Services Department who were working full-time on field campaigns was to drop by approximately 50 percent (50%).  The staffing changes did not, however, take effect.  Mr. Carter rescinded the actions after the protests were filed, and at the request of the Election Officer, to preserve the status quo.

3. Other Changes in Eckstein’s Job Responsibilities

Mr. Sever and Mr. Carter continued to take actions that undermined Mr. Eckstein’s position as Director of Field Services:

              On July 10, 1998, Mr. Eckstein distributed a memorandum memorializing existing staffing assignments of Regional Coordinators.  Mr. Carter rescinded that memo on July 14.  He told Mr. Eckstein, in writing, that four individuals had been selected as Regional Coordinators and that he would be advised who they were “at the appropriate time.”

              On July 13, 1998, Mr. Sever sent a TITAN message to Anheuser-Busch local unions telling them to direct Field Services requests to Mr. Carter, and not to Mr. Eckstein as was previously done.   Mr. Eckstein had no notice of this change before the TITAN was sent.

David A. Eckstein

August 14, 1998

Page 1

From the totality of the facts, it appears that the changes in Field Services came about abruptly after Mr. Eckstein joined the Leedham Slate and had rejected overtures from the Metz Slate.  The changes rewarded Mr. Henry (a late convert to the Metz Slate) with authority he had long sought, and diminished the authority and responsibility of Mr. Eckstein (a member who chose to join the Leedham Slate).  Although Mr. Sever and Mr. Carter gave testimony about purportedly legitimate reasons for the redeployments, they did not testify consistently with each other, and documents that they said would  exist to back up their position that the reorganization was previously planned could not be produced. 

2. Actions Directed at the Director of the Carhaul Division

The IBT’s Carhaul Division attends to the contractual and other interests of IBT members employed in the industry of transporting cars.  The General Executive Board, headed by Acting General President Sever, appointed Doug Webber as Director of the Carhaul Division in March 1998.

National Carhaul negotiations are scheduled to begin in October 1998.  Mr. Webber began planning the Carhaul contract field campaign in early May.  On May 21, Mr. Sever approved a memorandum by Mr. Webber that laid out a plan for a field campaign to support Carhaul contract negotiations.  Sever Tr. at 58.  The campaign plan required Field Services staff to contact local unions beginning on June 24, 1998, and to set up a network with local unions and members.  The plan for the Carhaul contract field campaign was modeled on the successful campaigns conducted by the Field Services Department for the United Parcel Service contract, the Master Freight contract, and the Anheuser-Busch contract.

David A. Eckstein

August 14, 1998

Page 1

On June 11, 1998, Mr. Webber declared his intention to run as a candidate for Southern Region Vice - President on the Leedham Slate.  His candidacy was announced as part of the Leedham Slate at the June 13, 1998 Leedham fundraising event at the IBT Women’s Conference in Cleveland, Ohio.

As stated earlier, Bob Hauptman testified that he heard Mr. Sever state on June 12, 998, that “he could not have Eckstein and Webber around if they are going to run on the slate against him.”  Mr. Hauptman repeated this statement to Mr. Eckstein on June 16 and, later on the same day, repeated it again to Mr. Webber in Mr. Eckstein’s presence.  Eckstein Tr. at 39; Webber Tr. at 21-24; Hauptman Tr. at 14.

David A. Eckstein

August 14, 1998

Page 1

The campaign plan Mr. Sever had approved on May 21 had included using the Field Services staff to contact “local unions to set up network structures with local unions and members.”  This apparently refers to the way in which Field Services staff had been used in other, recent successful corporate campaigns.  The actual activity encompassed in this networking included the distribution and collection of member surveys to determine contract priorities, the dissemination of information bulletins to local union members, and the organization of meetings with local unions to review proposals.  In Mr. Webber’s view, Field Services staff provided consistent oversight and follow-up during campaigns that raised member involvement and strengthened the union’s bargaining position on those contracts.[13]  Webber Tr. at 14, 17.

In July 1998, Mr. Sever injected himself into the Carhaul Campaign by sending TITAN messages to interested local unions directly without consulting Mr. Webber.

David A. Eckstein

August 14, 1998

Page 1

On July 8, 1998, Mr. Webber received a draft TITAN message pertaining to the Carhaul Campaign.  The TITAN message concerned Mr. Webber for two reasons.  First, it omitted his name.[14]  That was a significant change from the previous practice under which communications like this issued from the responsible division director.[15]  Second, the TITAN’s reference to local union involvement in the campaign appeared inconsistent with the previously approved plan to use Field Services staff to oversee and stimulate local union involvement in the campaign. 

Immediately after having the draft TITAN message hand-delivered to his office for review, Mr. Webber sent a message to Mr. Sever stating his objections and requesting a meeting. A few minutes later, Mr. Webber received back the same copy of the TITAN draft upon which Mr. Sever had written “O.K.  (T.S.) . . . Provide a copy of this titan draft to Carhaul Director Doug Webber (T.S.).”  Mr. Webber’s request for a meeting was not granted.  The TITAN message was sent out without any changes.

David A. Eckstein

August 14, 1998

Page 1

On July 10, Mr. Sever sent a second TITAN message over his signature (and omitting Mr. Webber) to the Carhaul local unions.  This TITAN explicitly changed the approved plan for using Field Services in the campaign.  Instead of recognizing Field Services as taking the lead on communications and setting up and managing the information network with local unions to support the Carhaul Contract negotiations, the TITAN relegated Field Services to a passive and reactive role.[16]  Moreover, the July 10, 1998 TITAN instructed Local Unions to contact Mr. Sever’s “Executive Assistant Sam Carter” if they needed any assistance with the contract surveys, or other preparations for the contract negotiations.  Instead of setting up the network, Field Services was to be used only on request, ostensibly to avoid impinging upon local union autonomy. 

On July 10, Mr. Sever appointed Tyson Johnson, Johnny Johnson, and J.D. Jackson to serve as members of the National Carhaul Negotiating Committee.  On July 31, Mr. Sever added Walt Lytle to the Committee.  These actions were unusual because Mr. Sever appointed individuals without requesting or obtaining a recommendation from the Carhaul Division Director, Mr. Webber.  Mr. Webber states that the division director would normally lead the negotiating committee and make a recommendation for a negotiating committee to the General President, prior to the General President appointing the negotiating committee.  This statement was corroborated by Mr. Leedham.

David A. Eckstein

August 14, 1998

Page 1

The Carhaul Campaign was the first occasion that the witnesses could remember on which the General President’s office requiring local unions to contact the General President’s office directly to request assistance from a department.  Normally a local union president would directly contact the director of a department of a division.  In this case, both the director of the division responsible for the negotiations (Mr. Webber) and the director of the department whose services and activity were the subject of the TITAN (Mr. Eckstein) were not involved, or even mentioned, in these communications.  These changes occurred without discussion, in contradiction of established practice and approved plans, and (as the chronology shows), after Mr. Webber and Mr. Eckstein affiliated with the Leedham Slate. 

3. Changes in the Conduct of the Kroger Negotiations

During this protest investigation, the Election Officer obtained information concerning the conduct of negotiations with the Kroger Company, a grocery store chain.  Approximately 4,000 Teamsters are employed in Kroger warehouses under a master agreement.  Tom Leedham is the head of the IBT’s warehouse division, which represents the member’s interests in connection with warehouse employees, including Kroger.

David A. Eckstein

August 14, 1998

Page 1

In February and March, local unions with members who worked at Kroger approved opening negotiations with Kroger well ahead of the contract expiration date.[17]  The contract was being opened early because Kroger had stated its intention to out-source warehouse jobs from their warehouse facilities.  Contract negotiations were scheduled and the schedule was published to the membership of the interested local unions.  A bargaining survey was published by the Teamsters Kroger National Negotiating Committee and distributed to the union members who work at Kroger.

Mr. Sever and, when he came to the headquarters, Mr. Carter, received and approved paperwork reflecting the early start-up of the Kroger negotiations by Mr. Leedham.  The publication of the survey, which explicitly refers to the Kroger National Negotiating Committee, and early bargaining, was approved by Mr. Sever.  Other expenses relating to the negotiation were approved by Mr. Sever personally, or by his assistant.  In April and May, Mr. Sever and Mr. Carter approved at least twelve travel authorizations for Mr. Leedham, the Warehouse Division Director, and other members of the Warehouse division to prepare for and engage in contract negotiations with Kroger.

Other departments presented information to Mr. Sever and Mr. Carter about the ongoing negotiation program.  On May 12, Mr. Eckstein wrote a memo to Mr. Sever, with a copy to Mr. Carter, referring to the ongoing negotiations with Kroger and noting that a meeting of all local unions with Kroger employees had been held on April 30, 1998.  The memo proposed the assignment of Field Services staff to this national contract campaign and attached a copy of the bargaining survey.

David A. Eckstein

August 14, 1998

Page 1

On May 12, Mr. Eckstein and Mr. Carter spoke by telephone with Mr. Leedham, concerning:  1) Mr. Leedham’s not having requested Mr. Sever’s approval for the appointment of the negotiating committee members; and 2) Mr. Leedham’s not “coordinating through Dave Eckstein for the full benefit of IBT Representatives in a contract campaign, similar to Freight and UPS”.[18]  Mr. Carter instructed Mr. Leedham to ask Mr. Sever to approve the appointment of negotiating committee members and to coordinate the contract campaign with Mr. Eckstein.  Carter Tr. at 46.  A handwritten note at the bottom of the typewritten note seems to indicate that Mr. Carter was aware that the Kroger negotiations could possibly affect 3,500 to 4,000 IBT jobs.[19]

David A. Eckstein

August 14, 1998

Page 1

After this telephone call, Messrs. Carter and Eckstein discussed possible Kroger Negotiating Committee members with Mr. Sever.  Mr. Eckstein states that Mr. Sever asked Mr. Eckstein to prepare a list of people who could replace Mr. Leedham as the Director of the Warehouse Division, if Mr. Leedham decided to run on a ticket separate from that of Mr. Sever.[20]  Mr. Eckstein prepared a list of approximately eight names, including George Saunders, Bill Wright, Scott Wilkins, and A.W. Parker.[21]

Mr. Leedham announced his candidacy for general president on May 22, 1998.  After that, Mr. Carter’s stance towards the ongoing Kroger negotiations changed.

On June 4, Mr. Carter sent Mr. Sever a memorandum listing eight “individuals who are qualified to observe, participate and/or head up the” Kroger National and Supplemental Negotiations.  A comparison of the list with Mr. Eckstein’s testimony shows that the names were basically those that Mr. Eckstein suggested.  They were not, however, persons selected or identified by Mr. Leedham. 

On June 9, Mr. Leedham formally requested that Mr. Sever appoint Ken Hilbish, George Saunders, and Mark Junod to the negotiating committee.

David A. Eckstein

August 14, 1998

Page 1

On June 12, Mr. Carter approved the printing of the IBT’s Kroger Master Agreement Contract Proposals.  Carter Tr. at 63.  On June 15, Mr. Leedham sent a memorandum to Mr. Sever, reminding Mr. Sever of the upcoming Kroger negotiations and requesting a response to his June 9, 1998 memo regarding appointment of the negotiating committee.

On June 17, 1998, Mr. Sever wrote Mr. Leedham stating that Mr. Leedham had failed to seek Mr. Sever’s approval to begin early negotiations with Kroger and accusing Mr. Leedham of appointing a negotiating committee without obtaining the approval of the Acting General President.  This letter was sent in the week after the IBT Women’s Conference, when the Leedham Slate was publicly announced.  At the time, Mr. Leedham was in the midst of negotiations with Kroger.  On June 18, there were several written and telephonic communications between Messrs. Sever and Leedham.  Mr. Sever then wrote to Mr. Leedham and stated in part:

[B]ecause of the need for me to obtain all necessary information to determine whether opening negotiations early with Kroger is within the best interest of the members, you are hereby instructed to discontinue any further negotiations with Kroger until you receive specific approval from my office.  Reopening of the Kroger contract will not be authorized unless it is required to protect the members.  Please provide me with written acknowledgment that the Kroger negotiations have been discontinued.

David A. Eckstein

August 14, 1998

Page 1

In his testimony, Mr. Sever denied that he had been aware prior to his letter of June 17, 1998, that the Master Agreement for Kroger was being negotiated or that Mr. Leedham had requested the appointment of a negotiating committee.  Sever Tr. at 64-73.  Mr. Carter also denied knowing, prior to May 10,  that the Kroger contract was being negotiated.  Carter Tr. at 54.  They both testified that the cessation of negotiations was done to stop Mr. Leedham’s having taken control over the negotiation without proper authority or approval.  Carter Tr. at 55-56, 64; Sever Tr. at 64-68.  Both Messrs. Sever and Carter denied that their June decisions to stop the Kroger negotiations was related to Mr. Leedham’s candidacy for general president.

The paper record on the Kroger negotiations contradicts the sworn testimony of Mr. Sever and Mr. Carter.  Their signatures appear on documents approving travel and other expenses incurred explicitly in furtherance of the Kroger negotiations.  Documents and testimony about communications with Mr. Eckstein on Field Services, and Mr. Leedham on the appointment of the negotiating committee show that, before Mr. Leedham was a declared candidate, and before Mr. Eckstein announced his slate affiliation, Mr. Sever and Mr. Carter knew that Mr. Leedham was leading a reopening of the Kroger contract and using Field Services.  The withdrawal of authority, and the change in approach, only came after formation of the Leedham Slate.

4. Conclusions
1. Retaliation

This decision juxtaposes the right of the union to conduct its legitimate ongoing business and to set its priorities against the right of IBT employees to support the candidacy of whomever they choose free from retaliation or the threat of retaliation.  The IBT has the right and the duty to continue to make policy decisions during the International election rerun process.  As the Election Officer first stated in Robbins, P-013-IBT-SCE (Merger of Specific Local Unions) (June 30, 1995), aff’d, 95 - Elec. App. - 3 (KC) (July 26, 1995).

It is not the role of the Election Officer to scrutinize the general policy decisions of the International Union, except as they relate to [his] grant of authority.  The Election Officer, therefore, only would find a violation if there is evidence of a nexus arising to a violation of the Rules . . . .

David A. Eckstein

August 14, 1998

Page 1

The Rules protect the right of IBT members to support the candidate of their choice and to refuse to support any candidate in this election.  As the Election Officer has stated,

Since the Rules protect campaign activity as a personal right of members, the exercise of that right cannot be interfered with by labor organizations or employers, including the IBT as an employer.

Hoffa, P-812- IBT-NYC.  Therefore, the IBT is strictly prohibited from using the electoral preferences or activities of its employees as factors in any employment-related decision. 

Article VIII, Section 11(f) of the Rules provides:

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.

To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the adverse decision or conduct in dispute.  The Election Officer will not find retaliation if he 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).

David A. Eckstein

August 14, 1998

Page 1

2. Specific Conclusions on Protest
1. David Eckstein

As previously stated, Mr. Eckstein, alleges that Messrs. Sever and Carter stripped Field Services of personnel and responsibilities, reduced the scope of Mr. Eckstein’s authority over field campaigns in retaliation for his candidacy and support for the Leedham campaign. 

The Election Officer has found that, despite their protestations that they were engaged in money-saving and long planned reductions, Messrs. Sever and Carter engaged in retaliation by taking the following actions:

1.  On June 17, Mr. Carter advised Mr. Eckstein that henceforth Mr. Henry would have to sign off on all decisions made in Field Services.  This was done without any prior discussion with Mr. Eckstein, was imposed on Field Services without being imposed on other departments, and was implemented contemporaneous with the announcement of Mr. Eckstein’s candidacy and the announcement by Mr. Henry that he was supporting the Metz/Sever slate.  The Election Officer found there is no evidence Mr. Carter did this as part of any long-range policy plan.

2.  Mr. Carter, without prior discussion or consultation with Mr. Eckstein, reassigned more than half the Field Services staff to the Overnite campaign.  While Mr. Carter asserted this had been “planned long before Mr. Eckstein affiliated with the Leedham slate,” the documentary evidence fails to support that assertion.  In taking this action, Messrs. Sever and Carter were aware that they would disrupt and affect ongoing campaigns at Kroger, Anheuser-Busch, Carhaul and Northwest Airlines.

3.  Mr. Carter rescinded Mr. Eckstein’s previous authority to make staff assignments.

4.  Mr. Sever advised Anheuser-Busch local unions that Field Services requests should be directed to his office and not to Mr. Eckstein, as had previously been done.  There was no prior discussion of this action.

David A. Eckstein

August 14, 1998

Page 1

5.  Mr. Sever refused to permit Mr. Eckstein to send out a list of Field Service Regional Coordinators to all Field Service staff, stating to Mr. Eckstein that he would let him know who the Regional Coordinators were at the appropriate time.  Mr. Eckstein had always assigned regional coordinators and these were not new assignments, but a confirmation of assignments previously made.

All of these actions took place after Mr. Sever had stated his antipathy to Mr. Eckstein based on Mr. Eckstein’s affiliation with the Leedham Slate.  Mr. Sever declared on June 12, 1998, that “he could not have Eckstein and Webber around if they were going to run on a slate against him.”  The ensuing actions to limit Mr. Eckstein’s authority and counter. 

2. Employees and Field Representatives Assigned to the Field Services Department

Dale Irwin, Special Projects Coordinator in Field Services, as well as Dave Keaton, Dale Arthur, Bob Blanchet, Tim Raiter and Jim Powell, all allege that they were retaliated against by Messrs. Sever and Carter.

3. Dale Irwin

Ms. Irwin alleges that she was retaliated against due to her vocal support of Mr. Eckstein and Mr. Leedham, when Mr. Carter 1) removed her computer; and 2) reassigned her to be supervised by Mr. Henry instead of Mr. Eckstein and downgraded her responsibilities to that of secretary.

David A. Eckstein

August 14, 1998

Page 1

The Election Officer notes that Mr. Carter offered no valid reason for the removal of Ms. Irwin’s computer.  The activist list, even if considered a valid reason,[22] was not on Ms. Irwin’s computer.  In these circumstances, the Election Officer concludes that the removal of Ms. Irwin’s computer was to harass her for supporting Mr. Eckstein and Mr. Leedham.

While Mr. Carter has the authority to make personnel assignments, he must do so without regard to employees’ political views.  In a memo basically contemporaneous with the personnel reassignments, the announcement of Mr. Eckstein’s candidacy, Mr. Sever’s affiliation with the Metz Slate, and Mr. Henry’s support of the Metz Slate, Mr. Carter reassigned two vocal supporters of Mr. Eckstein and Mr. Leedham.  The timing of Mr. Carter’s actions, and his contemporaneous computer note of June 17, 1998, support a finding of retaliation against Ms. Irwin.

4. International Representatives

Ten staff members from Field Services were reassigned to the Overnight Campaign before this action was rescinded.  These staff members included Dave Keaton, Dale Arthur, Bob Blanchet, William “Dan” Basham and Tim Raiter, all protesters in this case.  The Election Officer has already concluded that the reassignment itself was retaliatory against Mr. Eckstein.  The Election Officer, however, does not find that Mr. Carter or Mr. Sever acted to transfer these individuals to the Overnite campaign due to their political support of Mr. Eckstein.  Therefore, while the Election Officer finds the action was retaliatory conduct against Mr. Eckstein, the protests of these individuals as to retaliation against them are denied.[23]

David A. Eckstein

August 14, 1998

Page 1

5. Jim Powell

Mr. Powell’s protest involves a decision by Mr. Sever, by letter dated July 16, 1998, to remove Mr. Powell from his assignment as a personal representative of the General President in Local Union 710.  Mr. Powell states that he has openly supported Mr. Leedham, and that Mr. Sever’s actions in removing him from his assignment in Local Union 710 was in retaliation for this support.  Mr. Powell contends that this action followed a strongly worded letter he wrote to Mr. Sever on June 22 in which he openly declared his support for Mr. Leedham and criticized the Metz Slate.  In the letter Mr. Powell stated, in pertinent part:

Those who have earned trust, via their action as measured over time, know what it is and what it looks like. . . . In my opinion, you and possibly one other on the slate you now choose to run with has failed in this respect.

Mr. Sever and Mr. Powell had a telephone conversation on July 7, followed by a letter from Mr. Sever to Powell, which stated, in part:

As you indicated in out telephone conversation, you were very frustrated as an IBT employee with the way things have been going when you wrote your letter and apparently, you took your frustrations out on Brother John Metz and myself, characterizing us as untrustworthy and lacking in integrity.

Under Article VI, Section (f) of the IBT Constitution,

The General President may appoint and designate a member of the Union as a Personal Representative who shall act on behalf of the General President as the General President may determine, including the right to attend meetings of any subordinate body of the International Union.

David A. Eckstein

August 14, 1998

Page 1

In Wsol,  P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995), the Election Officer stated that “it will not be a violation to remove a member from an appointed position if there was a basis for doing so independent of the election process.”

Mr. Powell wrote a letter to Mr. Sever in which he was openly critical not only of his candidacy, but of his leadership.  Mr. Powell was thereafter removed by Mr. Sever, not from his position of International Representative, but as the “Personal Representative to the General President.”  Mr. Powell had been appointed to that job by Mr. Carey.

Under the IBT Constitution, Mr. Powell served as the president’s representative at the pleasure of the Acting General President.  Even assuming that IBT electoral politics affected Mr. Sever’s decision about Mr. Powell, the Election Officer concludes that Mr. Sever could properly determine that Mr. Powell was no longer suitable to serve as his personal representative.  Since “[r]emoval from an appointed union position because of . . . political rivalry is not prohibited,” Wsol, Mr. Sever did not violate the Rules in removing the protester as his personal representative.

6. Dick Collis

In PR-154, Mr. Collis, a member of Local Union 104 and an IBT Project Organizer alleges that his removal from the Overnite campaign was in retaliation for his support of Mr. Leedham, and to retaliate against Jim Benson, a candidate for International vice-president who subsequently withdrew.  Mr.  Collis alleges that this action was in retaliation for Mr. Benson’s refusal to support the Metz Slate.

David A. Eckstein

August 14, 1998

Page 1

The Election Officer has not found that the selection of the project organizers for removal from the Overnite campaign was retaliatory.  They were selected by Gary Stevenson and there is no evidence that the selection was motivated by considerations which are violative of the Rules.  Moreover, the action was rescinded shortly after its implementation.  This protest is therefore denied.

7. Doug Webber

Based upon their timing, the Election Officer finds that Messrs. Sever and Carter have retaliated against Mr. Webber.  Again, Mr. Sever’s June 12, 1998, statement that “he could not have Eckstein and Webber around if they were going to run on a slate against him” provides the critical context for later actions against Mr. Webber.  The Election Officer relies upon the following findings:

1.  Despite a long-planned and approved Carhaul contract campaign, which included the use of Field Services in the campaign, Mr. Sever sent out TITANs instructing local unions to contact Mr. Carter if they needed assistance in matters previously assigned to Field Services.

2.  Mr. Sever began to send TITAN messages related to the Carhaul Division omitting Mr. Webber’s name as director, and without consulting Mr. Webber.

3.  Mr. Sever appointed members to the National Carhaul Negotiating Committee without requesting or obtaining a recommendation from Mr. Webber.

The changes occurred shortly after the announcement of Mr. Webber’s candidacy and Mr. Sever’s remarks of June 12.  The changes occurred without discussion in contradiction of established practice and approved plans.  The Election Officer therefore concludes that they were taken to retaliate against Mr. Webber for his support of the Leedham Slate.

8. Kroger Negotiations and Retaliation Against Mr. Leedham

David A. Eckstein

August 14, 1998

Page 1

During the investigation, the Election Officer found facts showing that Mr. Leedham was retaliated against for political reasons in the context of the Kroger negotiations.  The Election Officer has found that shortly after Mr. Leedham announced his candidacy, and despite their knowledge of the reopening of the Kroger contract, Messrs. Sever and Carter withdrew Mr. Leedham’s authority and changed the approach to the negotiations.  The Election Officer concludes that while the Acting General President has the authority to lead the course of such important negotiations, his reasons for interference in the ongoing negotiations were in retaliation for Mr. Leedham’s candidacy.

In PR-174, Mark Junod, an International Representative who works for Mr. Leedham in the Warehouse Division contends that “due to the interference of General Secretary-Treasurer Sever and Sam Carter negotiations could not be completed . . ..  Consequently, the negotiating committee was informed on July 15 that the assets of the Dallas distribution center employing over 250 Teamsters were being sold . . .”  The Election Officer cannot inject himself into contract negotiations and has no intention of doing so.  The Election Officer has already found that Messrs. Sever and Carter retaliated against Mr. Leedham by stopping the negotiations.  No findings have been made, nor should any be implied, concerning Kroger.  The Election Officer finds that Mr. Junod’s protest does not specifically state a violation of the Rules and is accordingly denied.

Accordingly, the protests in PR-135, 142, 144, and 148 are GRANTED; and the protests in PR-143, 151, 152, 153, 154, 171, 174, 176, and 178 are DENIED.

5. Remedy
1. Introduction

David A. Eckstein

August 14, 1998

Page 1

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.  Here, the Election Officer shares the concern of many of the protesters that election politics (specifically, an intent to retaliate against supporters of the Leedham Slate),  and not policy is driving decisions made by the Office of the Acting General President and his executive assistant.   The Election Officer also recognizes that any remedy must be carefully drafted so as not to restrict the IBT from conducting legitimate union business.  This remedy should not be interpreted to condone campaigning on union time.  Indeed, the Election Officer finds that the rationale offered by Messrs. Sever and Carter, that they were trying to abate the improper use of union resources, was a subterfuge for retaliation on the basis of staff political views. 

2. The Remedy of Disqualification is Not Appropriate

The Rules provide that, upon determining a violation or the occurrence of any other conduct “which may prevent or has prevented a fair, honest, open and informed election,” the Election Officer may take appropriate remedial action.  Rules, Art. XIV, Sec. 4.  The provision reflects the Election Officer’s wide discretion to fashion remedies as necessary to promote and protect the integrity of the election process.  The enumerated remedies include, without limitation, “removing any nominee from the ballot” (id. Sec. 4(a)) and “disqualifying any member from seeking any. . . International Officer position.”  Id. Sec. 4(c). 

In the pre-election context, the Election Officer is empowered to “determine the appropriate remedy,”  Rules, Art. XIV, Sec. 2(f)(1), to ensure a “fair, honest, open and informed election[ ].” Id., Art. I.

David A. Eckstein

August 14, 1998

Page 1

Here, the Election Officer must consider whether the violations found in this decision are of sufficient seriousness to leave the Election Officer with no choice but to disqualify Mr. Sever from the rerun election.  Considering the violations in their totality, and the disqualification standard previously articulated in In re Cheatem, Post-27-EOH (KC) (November 17, 1997) (“Cheatem”), In re Carey Slate, PR-035-EOH (April 27, 1998) and Moriarty, PR-056-LU986-EOH (April 27, 1998), the Election Officer concludes that disqualification is not the appropriate remedy in this case because the remedies outlined below sufficiently uphold the objectives of the Consent Decree.

Although the Election Officer has broad discretion, Election Officer Kenneth Conboy in Cheatem properly recognized disqualification as an extraordinary “anti-democratic remedy” to be used as a last resort when the integrity of the electoral process could not be vindicated by lesser measures.  Id. at 53-54.  As the Election Officer stated in the Carey Slate Protest, “[t]he use of the Consent Decree’s remedial authority to disqualify a candidate yields a ‘paradoxical’ situation in which the electorate’s voting options are limited in order to promote democratic governance of the IBT.”   In Cheatem, the Election Officer used the powerful remedy of disqualification because the facts in the investigation showed that Mr. Carey participated intentionally in a hidden, corrupt scheme for his personal benefit that also breached his fiduciary duty to the IBT membership.

This breach of fiduciary duty, self-dealing at the expense of the IBT membership, constitutes one of the core types of misconduct the Consent Decree was designed to eliminate. 

Id. at 71 (emphasis added).

In the Carey Slate Protest, the Election Officer found that the violations did not warrant  disqualification because they involved the failure to identify otherwise proper contributors of disclosed sums, the amount involved was de minimis in the scale of $3.6 million in total contributions, and the problematic conduct was not concealed.

David A. Eckstein

August 14, 1998

Page 1

In Moriarty, the Election Officer disqualified MaryLou Salmeron because she coerced her subordinates, who she directly supervised, into contributing to her campaign.  Moreover, the disqualification remedies were imposed on Mr. Carey and Ms. Salmeron in contexts where the conduct was so egregious, contrary to the conduct of the democratic election, and lacking any other mixed, legitimate union business interests, that disqualification was the only appropriate remedy to ensure a fair, honest, open and informed election.

The Election Officer recognizes that while the violations here are very serious, Mr. Sever and Mr. Carter did not divert union resources to support Mr. Sever’s campaign or the Metz Slate, and Mr. Sever has not breached his fiduciary trust to the IBT.  While the retaliatory motive is clear, and the actions against the protesters would not otherwise have occurred, the retaliatory conduct was mixed with policy decisions relating to union business.  The actions were serious, but were directed at candidates and supervisors, not subordinates.  Most importantly, the Election Officer firmly believes he can remedy the conduct without the drastic and draconian remedy of disqualification.

3. Remedies Ordered

Based upon the violations found here, the Election Officer orders the following remedies by the IBT, Mr. Sever and Mr. Carter:

1.  Mr. Sever as Acting General President and General Secretary - Treasurer shall immediately cease and desist from:

a.  Retaliating against David Eckstein, Dale Irwin, and staff of the Field Services Department by taking specific, adverse actions against them and that department that are based on their candidacies or their support of candidates in the International rerun election.

b.  Retaliating against Doug Webber by taking specific, adverse actions based upon Mr. Webber’s candidacy.

David A. Eckstein

August 14, 1998

Page 1

c.  Retaliating against Mr. Leedham by taking specific, adverse actions based upon Mr. Leedham’s candidacy.

2.  Each week on Monday, the IBT will submit a  memorandum to the Election Officer signed by the Acting General President, which outlines all personnel decisions and assignment changes of IBT staff that occurred in the preceding week.  For each decision or change, the memorandum shall state the reason for the action.  This procedure is being imposed so the Election Officer can monitor future conduct during the rerun election.

3.  Within two (2) days of the date of this decision, the IBT will issue the enclosed TITAN message to all IBT subordinate bodies, with instructions that it be posted on the bulletin boards at the local union until the count of International officer rerun election ballots begins.  Within one (1) day of sending out the TITAN message, a copy will be delivered to the Election Officer.

4.  Within seven (7) days of the date of this decision, Mr. Sever and Mr. Carter will retype               on official stationery, sign and deliver the attached “Letter to IBT Employees” to all employees of the IBT.  Within one (1) day of completing the delivery of the letter, a copy will be provided to the Election Officer.

5.  Within ten (10) days of this decision, Messrs. Sever and Carter shall each deliver an affidavit to the Election Officer detailing their 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 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:

David A. Eckstein

August 14, 1998

Page 1

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

J. Griffin Morgan, Regional Coordinator

TEXT OF TITAN MESSAGE

NOTICE TO ALL IBT SUBORDINATE BODIES FROM ACTING GENERAL

PRESIDENT TOM SEVER AND EXECUTIVE ASSISTANT SAM CARTER

THE IBT ELECTION OFFICER, MICHAEL G. CHERKASKY, HAS FOUND THAT WE HAVE RETALIATED AGAINST TOM LEEDHAM, DOUG WEBBER AND DAVID ECKSTEIN, CANDIDATES FOR INTERNATIONAL OFFICE, BY TAKING SUCH ACTIONS AS REMOVING SUPERVISORY AND JOB RESPONSIBILITIES, INTERFERING IN ONGOING CAMPAIGNS AND NEGOTIATIONS, AND CEASING ONGOING CONTRACT CAMPAIGNS.  WE HAVE BEEN ORDERED TO IMMEDIATELY CEASE AND DESIST FROM SUCH CONDUCT.  WE ARE SENDING THIS TITAN MESSAGE BY DIRECTION OF THE ELECTION OFFICER.  IT SHOULD BE POSTED ON ALL BULLETIN BOARDS AT THE UNION UNTIL THE BALLOTS IN THE RERUN ELECTION OF INTERNATIONAL OFFICERS ARE COUNTED.

TOM SEVER

SAM CARTER

“Letter to IBT Employees”

Dear  IBT Employee:

During the course of a recent investigation, the Election Officer found that we retaliated against certain IBT employees and candidates for International office in the rerun election (Tom Leedham, Doug Webber and David Eckstein) in violation of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election ("Rules").  These violations involved removing supervisory and job responsibilities, interfering in ongoing campaigns and negotiations, and ceasing ongoing contract campaigns.  We have been ordered to immediately cease and desist from such conduct. 

As part of his remedy, the Election Officer has determined that we should issue this letter to all IBT employees to ensure that all employees understand their right to support International candidates of their choice.  Accordingly, the Election Officer reminds IBT employees of their rights under the Rules:

•                      Every member of the IBT has a personal right to participate in campaign-related activity under the Rules.  This right extends to members employed by the International union.  Members may decide to support or oppose whomever they choose, to aid or campaign for any candidate, and to make campaign contributions.  The Rules also protect a member’s right not to become involved in the International officer election at all.

•                      Retaliation or the threat of retaliation by the IBT for exercising any right guaranteed by the Rules is prohibited and will not be tolerated.

•                      Members are prohibited from using union resources to campaign.

If you believe you have been retaliated against or threatened with retaliation based upon election-related activity, you may file a protest with the Election Officer at 444 North Capitol Street, NW, Suite 445, Washington, DC  20001; Telephone (800) 565-VOTE; Fax (202) 624-3525.

_________________________

Tom Sever

Acting General President

_____________________________

Sam Carter

Executive Assistant to the Acting General

President

David A. Eckstein

August 14, 1998

Page 1

F:\GROUPS\PROTEST\PRERERUN\WORK\PR135814.WPD