September 18, 1998
VIA FACSIMILE AND FIRST CLASS MAIL
Michael F. Clark
September 18, 1998
Page 1
Michael F. Clark
3624 Belgrade Street
Philadelphia, PA 19134
Fax: (215) 537-8690
Gerard P. McNamara, Trustee
Teamsters Local Union 107
107 Spring Garden Street
Philadelphia, PA 19123
Fax: (215) 625-9087
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Fax: (202) 223-9677
Attn: Patrick J. Szymanski, Esq.
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
Fax:(248) 855-6501
Michael F. Clark
September 18, 1998
Page 1
Re: Election Office Case No. PR-246-LU107-NYC
Gentlemen:
Michael F. Clark, a member of Local Union 107, 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 Gerald McNamara, IBT-appointed trustee of Local Union 107. Mr. Clark alleges that Mr. McNamara is refusing to give the union’s approval for his employer-approved 60-day leave of absence which he will use to coordinate the Philadelphia area campaign for James P. Hoffa, a candidate for general president.
Local Union 107 responds that there is no reason that the protester’s leave will not be approved but that Mr. McNamara has been out sick and therefore has been unable to take care of union business.
The protest was investigated by New York City Protest Coordinator Barbara C. Deinhardt.
Michael F. Clark
September 18, 1998
Page 1
The protester is an active supporter of Mr. Hoffa, and ran his operations in Philadelphia in the initial election. Mr. Clark serves as the coordinator for the Hoffa Campaign in the Philadelphia area for the rerun election. Mr. Clark had requested a 60 day leave of absence from his employer to work on Mr. Hoffa’s campaign. The leave was to begin on August 25. His leave request was approved by Mr. Clark’s employer, Berger Brothers, but in order for it to be effective, a representative of the union has to sign off on it. On a number of occasions between August 17 and 21, 1998, Mr. Clark delivered, faxed and mailed the request for the leave of absence to Mr. McNamara for his signature. Mr. McNamara has failed to act on this request and therefore the protester has been unable to begin the leave he wanted to begin on August 24.
Counsel for Mr. McNamara stated to the investigator that Mr. McNamara has been out sick and has not been able to take care of union business, including signing paychecks. Counsel assured the investigator that as soon as the situation was resolved, Mr. McNamara would sign off on Mr. Clark’s leave. During the investigation, however, it was discovered that Mr. McNamara has been into the office on several occasions to sign paychecks, but has not signed the leave request.
Despite the fact that Mr. McNamara had notice of this protest on August 26, and has since had discussions with the investigator, the leave request has not been signed.
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).
Apart from Mr. Clark’s political support for Mr. Hoffa, there is no reason to support the local union’s failure to approve the leave. The Election Officer finds that the local union, and particularly Mr. McNamara, has failed to sign off on the protester’s leave request in retaliation for his support of Mr. Hoffa.
Accordingly, this protest is GRANTED.
Michael F. Clark
September 18, 1998
Page 1
When the Election Officer determines that the Rules have been violated, he “may take whatever remedial action is appropriate.” Article XIV, Section 4. 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.
The Election Officer therefore orders that:
1. Within twelve (12) hours of receiving this decision, Local Union 107 shall sign Mr. Clark’s leave request and deliver it to Mr. Clark and his employer. The Local Union will simultaneously serve a copy on the Election Officer.
2. Local Union 107 shall immediately cease and desist from retaliating against Mr. Clark or any other member based on the support of any candidate in the International Officer Rerun Election.
3. By September 21, Local Union 107 will post the attached “Notice To Local Union 107 Members” on all bulletin boards within the union hall, and at Berger Brothers, Mr. Clark’s employer. The notice shall remain posted until December 3, 1998. Further, Local Union 107 shall file an affidavit detailing compliance with this order by September 25.
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:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax: (212) 751-4864
Michael F. Clark
September 18, 1998
Page 1
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
Enclosure
cc: Kenneth Conboy, Election Appeals Master
Barbara C. Deinhardt, New York City Protest Coordinator
NOTICE TO LOCAL UNION 107 MEMBERS
The Election Officer has found that Local Union 107 retaliated against Michael F. Clark in violation of the Election Rules when it failed to sign off on a leave of absence request which was made to work on the campaign of James P. Hoffa in the International officer rerun election. The local union has been ordered to cease and desist from such conduct and to immediately sign off on Mr. Clark’s leave of absence.
_________________________
Gerald McNamara
Trustee, Local Union 107
This is an official notice which must remain posted until December 3, 1998, and must not be defaced or altered in any manner or be covered with any other material.
Approved by Michael G. Cherkasky, IBT Election Officer.