October 6, 1998
VIA FIRST CLASS MAIL
Maria Elva Maldonado
October 6, 1998
Page 1
Maria Elva Maldonado
7308 Hilton Avenue
Takoma Park, MD 20912
John W. Braxton
4712 Windsor Avenue
Philadelphia, PA 19143
Bill Diltz
Director of Education
Int’l Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, D.C. 20001
David L. Neigus
Acting General Counsel
Int’l Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, D.C. 20001
Tom Leedham Campaign Office
P.O. Box 15877
Washington, D.C. 20003
Arthur Z. Schwartz, Esq.
Kennedy, Schwartz & Cure
113 University Place
New York, NY 10003
Tom Sever
Acting General
President/Secretary-Treasurer
Int’l Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, D.C. 20001
Maria Elva Maldonado
October 6, 1998
Page 1
Re: Election Office Case No. PR-230-IBT-EOH
PR-257-IBT-EOH
Gentlemen:
Maria E. Maldonado, a member of Local Union 246, 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 Bill Diltz, IBT Director of Education. Ms. Maldonado alleged in PR-230 that Mr. Diltz “harassed” her and denied her work assignments, compensation leave, part-time status and an unpaid leave of absence because of her support of Tom Leedham, a candidate for general president. John Braxton, a member of Local Union 623, alleged in PR-257 that his request for part-time status and an unpaid leave of absence was refused by Mr. Diltz in retaliation for his support for Mr. Leedham. Mr. Diltz denied all of these allegations.
Maria Elva Maldonado
October 6, 1998
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The protest was investigated by Regional Coordinator J. Griffin Morgan and Election Office Counsel David S. Paull. Because similar facts were alleged against the same IBT supervisor during approximately the same time period, the protests were consolidated for decision by the Election Officer.
Ms. Maldonado and Mr. Braxton are employed by the IBT Education Department as education coordinators. As such, it is their duty to present training programs to union officers, stewards and other union members on topics such as collective bargaining and contract administration. Mr. Diltz is the direct supervisor of all employees in the department.
Ms. Maldonado and Mr. Braxton support Tom Leedham for general president. Mr. Diltz supports another candidate.
The IBT Education Department has seven full-time and one half-time education coordinator positions. Currently, only five of these positions are staffed. The education coordinators are governed by a collective bargaining agreement which utilizes seniority in the distribution of contract benefits. Mr. Braxton is the least senior education coordinator in the department. Ms. Maldonado is senior only to Mr. Braxton. Another education coordinator, Joanie Parker, is third in departmental seniority.
Ms. Maldonado alleged that Mr. Diltz has not assigned her any work since January of 1998. A review of all projects completed by the Education Department in 1998 disclosed that Ms. Maldonado has participated in more training programs than any other education coordinator. Mr. Diltz admits that he did not assign the majority of this work to Ms. Maldonado. He maintains, however, that education coordinators have the responsibility to generate their own work projects. “Unless there are extraordinary circumstances,” states Mr. Diltz, “I send whoever the requestor asks for. If the affiliate does not specify a trainer, then I assign one based on availability.” Ms. Maldonado does not deny that the majority of work assignments are made as described by Mr. Diltz.
During the summer of 1998, Mr. Diltz rejected requests by Ms. Maldonado and Mr. Braxton to work on a part-time schedule and for unpaid leaves of absence. When Mr. Diltz asked Mr. Braxton the reason for his request, Mr. Braxton replied that “there was no work for me to do” and that he “wanted to use some of the time to campaign in the IBT election.”
The requests of both protesters were denied, according to the uncontradicted evidence, on the basis that the Education Department was not fully staffed. In a memo, Mr. Diltz stated that Mr. Braxton’s request could not be granted because “The Education Department currently has 2 full-time training positions and 1 part-time position open which I’m trying to fill.” Mr. Diltz’s memo also referred to Ms. Parker, who was already on a leave of absence at the time of the requests. According to the memo, three other leave requests including one made by Mr. Braxton earlier in the summer, were denied by Mr. Diltz “for the same reasons.” Additionally, the memo stated:
Maria Elva Maldonado
October 6, 1998
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It is not very logical to have two (2) or more coordinators taking leaves of absence, nor reducing their work schedules to part-time while we are already trying to fill vacant positions. Therefore, I cannot grant your request for a leave of absence nor part-time status at this time.
Similarly, in a memo to Ms. Maldonado, Mr. Diltz stated that his denial of her request also due to the staff shortage.
Mr. Diltz further refused Ms. Maldonado’s request for compensation leave on June 5, 1998. The collective bargaining agreement governing the employment of education coordinators provides that 6 days or 42 hours of leave is permitted annually, subject to “appropriate notice and the approval of their supervisor.” Mr. Diltz stated that at the time of her request,
Ms. Maldonado had already used up all but 1.5 hours of her annual leave for the year. According to Mr. Diltz, the additional leave was not granted on this occasion due to the staff shortage.
Article VIII, Section 11(f) of the Rules prohibits retaliation against any member by the Union or its employees for exercising any right guaranteed by the Rules. To sustain a violation of this section, some evidence must be presented or disclosed which expressly or inferentially connects the conduct which is alleged to be improper to 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).
The existence of a reasonable justification for an alleged adverse action, independent of the election process, defeats the 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 he concludes that a union officer or employee 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).
The independent reason provided by Mr. Diltz for his refusal to grant the requests made by Ms. Maldonado and Mr. Braxton for unpaid leave and part-time status, as well as
Maria Elva Maldonado
October 6, 1998
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Ms. Maldonado’s request for compensatory leave, was that further loss of staff time was not in the best interests of the Education Department, even for a temporary period. This justification is sufficient under the Rules at Article VIII, Section 11(f) to defeat an inference of improper election-related motivation.
Ms. Maldonado and Mr. Braxton maintain, however, that Mr. Diltz’s actions were election-related despite the independent justification stated. Ms. Maldonado bases her contentions on Mr. Diltz’s lack of support for Mr. Leedham and a connection between Mr. Diltz and John Metz, another candidate for general president. She states that she incurred Mr. Diltz’s animosity by regularly hosting supporters of Mr. Leedham in her office in the discharge of her job duties. The uncontradicted evidence establishes that Mr. Diltz has consistently reminded the Education Department staff that campaigning on union-paid time is prohibited. Ms. Maldonado also makes reference to these reminders as proof of her contentions.
Mr. Braxton initially cited three reasons in support of his claim. First, he stated that he had no work until an education seminar which was scheduled to begin on September 19, 1998. Mr. Braxton further asserted that it was “absurd” to claim that an unpaid leave of absence cannot be granted “because one coordinator is already on leave and because there are open positions.” He also makes reference to a current “hiring freeze” at the IBT.
The assertions made by the protesters are insufficient to show that Mr. Diltz has directed any adverse action toward either of them for any election-related reason. To deny a request for part-time status, compensatory leave or unpaid leave on the grounds that one employee is already absent and other budgeted positions remain unfilled is not “absurd,” as Mr. Braxton contends. Rather, such supervisory decisions are reasonable and well within Mr. Diltz’s authority. Without specific evidence, the election is not implicated by managerial decisions made on the basis of staff shortages or the manner in which the work is assigned. According to Mr. Diltz, a general hiring freeze does currently exist at the IBT, but the hiring of additional Education Department staff is an exception.
Mr. Braxton also refers to several other events, all occurring after the protest was filed, as evidence that Mr. Diltz was motivated by election-related considerations when he refused to authorize his request for unpaid leave. The first is a telephone conversation, overheard by
Mr. Braxton on September 9, 1998, between Mr. Eckstein and Mr. Diltz. Mr. Eckstein is the IBT Director for Field Services and a candidate on the Tom Leedham slate. One of the subjects of this telephone conversation was Mr. Eckstein’s request that Mr. Braxton be assigned to assist in the presentation of an education seminar at the IBT on September 10 and 11, 1998. Mr. Diltz refused to assign Mr. Braxton to this event, stating in a memo that “I cannot approve this request dated September 2, 1998, pending the election protest filed by Mr. Braxton.” During the conversation, both Mr. Braxton and Mr. Eckstein heard Mr. Diltz say that “I am not letting them take leave ‘cause they just want to campaign” and “I’m not going to help out your election campaign.”
Maria Elva Maldonado
October 6, 1998
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The second event is a meeting attended by Mr. Braxton, Mr. Diltz and the Education Department’s office manager on September 9, 1998. According to Mr. Braxton, Mr. Diltz “handed me a stack of 23 Education Department documents which he said needed to be updated” and further stated that “We’ll see what kind of monster you want to have created. You’ll have work coming out of your ears.”
Finally, Mr. Braxton submitted evidence showing that on September 10, 1998, Mr. Diltz approved in total his request for vacation days for September 1998. Mr. Braxton states that this submission is “proof that my work load does not currently require me to be at work full time, even after Mr. Diltz has created the additional work of updating publications.”
These post-filing events are insufficient to establish that Mr. Diltz acted on the basis of election-related considerations. While Mr. Diltz admits that he made it clear during the September 9 meeting that he did not care for Mr. Braxton’s statement that there was “no work” to be done in the Education Department, he points out that updating department manuals and instructional materials is very much a part of the job of an education coordinator.
The evidence does indicate that Mr. Diltz expressed to Mr. Eckstein in their telephone conversation of September 9, 1998, his unwillingness to “help out Mr. Eckstein’s election campaign.” However, such a statement, standing by itself, does not establish that Mr. Diltz’s refusal to grant the protester’s request for leave was improper under the Rules. There is no evidence that Mr. Diltz discriminated against the Leedham Campaign or Mr. Braxton by “helping out” any other candidate. Rather, the evidence shows that Mr. Diltz very strictly enforces the IBT policy, as reflected in the Rules, requiring that the employees refrain from campaigning during union paid time. Mr. Diltz stated during the investigation that he remains very concerned that the Education Department be perceived by all IBT members as “neutral” during this campaign period. His consistent and strict enforcement of this prohibition as a department policy is confirmed in documents, as submitted by Mr. Braxton.
Mr. Diltz’s memo of September 4, 1998, expressing reluctance to approve Mr. Eckstein’s request to assign Mr. Braxton to an educational seminar “pending the election protest,” also fails to establish improper motivation in this case. Certainly, the memo demonstrates Mr. Diltz’s incorrect assumption that it was improper to assign the protester to any outside educational activities during the pendency of the protest which, in part, concerned that subject. However, there is no showing that Mr. Braxton was restricted by Mr. Diltz in the generation of his own work assignments during this time. The fact that Mr. Diltz misunderstood the operation of the Rules does not provide a basis to determine a violation.
Despite the pendency of Mr. Braxton’s protest, Mr. Diltz immediately approved all of the Mr. Braxton’s proposed vacation days for September, even after the protester stated his intention to campaign during this period. The investigation also disclosed documents in which Mr. Diltz suggested that vacation would be available to Ms. Maldonado in lieu of one of her requests.
Maria Elva Maldonado
October 6, 1998
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The evidence accordingly fails to establish either that Mr. Diltz’s electoral preferences or the protesters’ election-related activities were factors in the actions which were protested.
The protests are therefore 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
cc: Kenneth Conboy, Election Appeals Master
J. Griffin Morgan, Regional Coordinator