September 18, 1998
VIA FIRST-CLASS MAIL
David L. Keaton
September 18, 1998
Page 1
David L. Keaton
9369 Ewers Drive
St. Louis, MO 63126
Mark Junod
1326 Xaveria Drive
Silver Spring, MD 20903
Bob Muehlenkamp
Director of Organizing
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Sam Carter
Executive Assistant to Acting
General President Tom Sever
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
David L. Neigus
Acting General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Tom Sever, Acting General
President/Secretary-Treasurer
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
Arthur Z. Schwartz, Esq.
Kennedy, Schwartz & Cure
113 University Place
New York, NY 10003
David A. Eckstein
35 E Street, NW, #110
Washington, DC 20001
Richard Nelson, Director
Freight Division
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
David L. Keaton
September 18, 1998
Page 1
Re: Election Office Case Nos. PR-237-IBT-EOH
PR-238-IBT-EOH
PR-267-IBT-EOH
Gentlepersons:
David L. Keaton
September 18, 1998
Page 1
Related pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by David Eckstein (PR-267), a member of Local Union 661, Director of Field Services, and a candidate for International Trustee on the Tom Leedham “Rank and File Power” Slate (“Leedham Slate”), Robert Muehlenkamp (PR-267), Director of Organizing, and IBT International Representatives David Keaton (PR-237), a member of Local Union 600, and Mark Junod (PR-238), a member of Local Union 311. The protesters allege that Tom Sever, Acting General President, and Sam Carter, Executive Assistant to the Acting General President created a new daily activity reporting requirement for all IBT International representatives and organizers in retaliation for protected political activity in violation of the Rules.
Messrs. Eckstein and Muehlenkamp further allege that the imposition of the new activity reports may “unfairly serve as a basis for retaliatory charges” against the protesters as department directors. Mr. Eckstein also contends that the reports are in direct contravention of the Election Officer’s decision in Eckstein, PR-135-IBT-SCE (August 14, 1998), aff’d , 98 - Elec. App. 369 (KC) (September 8, 1998). Mr. Keaton additionally alleges that his reassignment to the Freight Division by Mr. Carter was retaliatory in nature.
The IBT responds that the forms have been applied uniformly to International representatives and organizers in all departments, and that the idea for more rigorous reporting originated from discussion in late 1997 between the Election Officer and representatives of the IBT Legal Department. Mr. Carter denies that Mr. Keaton’s reassignment was based on any improper considerations.
Due to the similar nature of the allegations, these protests were consolidated for decision by the Election Officer. The protests were investigated by Deputy Election Officer Benetta M. Mansfield and Election Office Staff Attorney Peter F. Gimbrère.
- Daily Activity Reports
In December 1997, representatives of the Legal Department met with Election Officer Cherkasky and other representatives of the Election Office. The IBT General Counsel and Deputy General Counsel suggested that developing a form which more closely tracked the activities of organizers and other IBT employees in the field would better track when such employees were on work time. The Election Officer agreed that this would be a good idea. Thereafter, the Legal Department met with Mr. Sever and suggested the development of a new form to him.
David L. Keaton
September 18, 1998
Page 1
In March or April, 1998, developing a new the daily activity report was discussed in a meeting between Mr. Sever, Jim Bosley, the Executive Assistant to Mr. Sever, and Joe Selsavage, Director of IBT Accounting, in March and April of 1998. The rationale for the imposition of the new reports was to create a more effective and efficient monitoring system of the operations and activities of all International representatives and organizers in all IBT departments. Mr. Selsavage designed the new forms. There were not reviewed by the Legal Department or by any Department or Division Director. The new daily activity reports were distributed to all departments in early August, 1998. The report requires all International representatives and organizers to write down their daily specific activities and to then submit the report at the end of each week to their respective department heads. All department heads must then sign off on the report prior to forwarding it to Mr. Carter’s office.[1]
The Election Officer finds that the protesters fail to show any nexus between the imposition of the daily activity reports and the Rerun Election. The IBT requires the reports from all IBT representatives in all departments.[2] The reporting requirement was created and imposed prior to the decision in Eckstein, PR-135. While the daily reporting requirements might be considered onerous and burdensome, the Acting General President retains the right to monitor and supervise the daily activities of IBT employees. Without any evidence of a retaliatory motive or of interference with a member’s political rights, the Election Officer finds no violation of the Rules.
- Allegations by Mr. Keaton
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 the alleged adverse action, independent of the election process, defeats an allegation of improper motivation so long as such basis does not form an excuse for or is a pretext for conduct or action which is actually in violation of the Rules. The Election Officer will not determine that conduct or action is retaliation for the exercise of election-related rights if 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,
David L. Keaton
September 18, 1998
Page 1
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).
Mr. Carter presented evidence to the Election Officer which indicated that Richard Nelson, Director of the National Freight Division, specifically requested that IBT representatives with freight expertise and knowledge be assigned to the Freight Division due to a shortage of personnel there. Thereafter, Mr. Eckstein provided Mr. Carter with a list of five International Representatives who had freight experience. All of those listed were assigned on a rotating basis to the Freight Division. Therefore, Mr. Keaton was not the only IBT representative with freight experience to be reassigned. This independent reason provided by Mr. Carter for his reassignment of Mr. Keaton is sufficient under the Rules at Article VIII, Section 11(f) to defeat an inference of improper campaign-related motivation. While Mr. Keaton is a well-known supporter of the Leedham Slate, that factor alone is insufficient to find a violation of the Rules.
Accordingly, the protests are 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
[1] The sign-off contains a certification by the Division/Department Director. It states “I certify that this individual was assigned, and has performed, the assignments and activities detailed in this report.” When questioned about this certification, Mr. Carter stated he has advised Messrs. Eckstein and Muehlenkamp that despite the language, a signature did not commit the Division or Department director to certify that the reported work was actually performed.
[2] The only group of representatives exempted from this daily activity report is the IBT auditors.