Protest Decisions

November 4, 1998

VIA FIRST CLASS MAIL

Jaime Rodriguez

November 4, 1998

Page 1

Jaime Rodriguez

15-12 Dekalb Avenue

Apt. 3L

Brooklyn, NY 11237

Sylvester Needham

385 Bayview Avenue

Apt. 5F

Inwood, NY 11096

Eugene P. Maney, Trustee

Teamsters Local Union 813

225 Park Avenue South

New York, NY 10003

John Metz Slate

c/o Jim Smith

2833 Cottman Avenue

Philadelphia, PA 19149

Joseph Padellaro

28 Basin Road

Newburyport, MA 01950

Tom Sever, Acting General

   President/Secretary-Treasurer

Int’l Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC 20001

Phillip C. Landrigan, Esq.

81 Main Street

White Plains, NY 10601

George O. Suggs, Esq.

Wilburn & Suggs

1015 Locust

Suite 818

St. Louis, MO 63101

Jaime Rodriguez

November 4, 1998

Page 1

Re: Election Officer Case No. PR-265-LU813-EOH

Gentlemen:

Jamie Rodriguez and Sylvester Needham, members of Local Union 813, 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 Eugene Maney, trustee of Local Union 813; Joseph Padellaro, a candidate for Eastern Region vice-president on the John Metz Slate (“Metz Slate”) and IBT Trustee Coordinator for the Eastern Region; Tom Sever, Acting IBT General President and a candidate for general secretary-treasurer on the Metz Slate; and other unnamed members of the Metz Slate.  The protesters allege that they were discharged from their positions as business agents at Local Union 813 “pursuant to a practice” of retaliation by the charged parties due to their support of the Hoffa Unity Slate (“Hoffa Slate”) and their failure to support the Metz Slate, in violation of the Rules.

Jaime Rodriguez

November 4, 1998

Page 1

Mr. Maney admits discharging the protesters from their positions as business agents.  He states, however, that the discharges were well within his discretion as trustee of Local Union 813, and were not connected to the International officer rerun election.  Mr. Padellaro and Mr. Sever deny any involvement in the discharge of the protesters.

This protest was investigated by Election Office Staff Attorney Peter F. Gimbrère.

In September 1996, Mr. Maney was appointed by IBT General president Ron Carey to be the second trustee of Local Union 813, the position he currently holds.  In February 1998, a Federal judge continued the government imposed trusteeship of Local Union 813 until at least February 2000.

Immediately after being appointed, Mr. Maney fired five of the ten Local Union 813  business agents.  At the time of his appointment, Mr. Maney actively supported Mr. Carey for general president.  In early 1998, after the results in the 1996 election had been thrown out and Mr. Carey had been prohibited from running in the rerun election, Mr. Maney met with the business agents of Local Union 813 and told them that he was not going to support anyone in the rerun election. 

According to Mr. Maney, Messrs. Rodriguez and Needham also supported Mr. Carey in 1996.  Messrs. Rodriguez and Needham currently support Mr. Hoffa for general president and deny ever supporting Mr. Carey in 1996.[1]  They both are in open opposition to the trusteeship.  During the winter of 1997-1998, Messrs. Rodriguez and Needham petitioned the Federal Court to have the trusteeship dissolved and to have Mr. Maney removed as trustee.[2]  Mr. Maney states that, until he received the current protest,  he was unaware of the fact that the protesters were supporting Mr. Hoffa.

Jaime Rodriguez

November 4, 1998

Page 1

A general membership meeting of Local Union 813 was planned for June 28, 1998.  Prior to the meeting, Mr. Maney held a number of meetings with Local Union 813 shop stewards, without any business agents attending.  According to Mr. Maney, he was informed during those meetings that Messrs. Rodriguez and Needham were failing to enforce contract terms and were not providing the members with a satisfactory level of service.  Allegations of  monetary kickbacks to Messrs. Rodriguez and Needham also surfaced at the meetings.  At that time,

Mr. Maney started getting numerous requests for the removal of the two protesters from their positions as business agents.

On June 28, 1998, the general membership meeting was held as planned.  According to Mr. Rodriguez, he was in an area outside of the meeting hall where Hoffa supporters were distributing Hoffa campaign paraphernalia and literature and gathering signatures supporting the abolishment of the trusteeship.  Mr. Maney walked by this area on his way into the meeting hall.  No conversation is alleged to have occurred between Mr. Rodriguez and Mr. Maney.  The meeting, described as boisterous and violent, ended later that day.

On July 10, 1998, Mr. Maney discharged Mr. Rodriguez but then reinstated him after a number of other business agents, including Mr. Needham, threatened to quit in protest.  On August 7, 1998, Mike Kelly, Mr. Maney’s assistant, requested that Mr. Rodriguez sign and circulate a petition.  The petition referred to the level of intimidation and violence present at the June 28 meeting and requested that government supervision of Local Union 813 be retained until  such time as the situation became more stable.  Mr. Rodriguez refused to sign or circulate the petition.   In  August 1998, Mr. Needham circulated a petition seeking the removal of two business agents newly hired by Mr. Maney.  In late August 1998, both Mr. Rodriguez and

Mr. Needham were permanently terminated as business agents.

Mr. Maney contends that it was well within his discretion as trustee of Local Union 813 to discharge the two business agents.  He asserts that the removal of both business agents was specifically based on their failure to provide satisfactory services to the members.

The protesters base their allegation that they were both removed due to election-related reasons on the fact that Mr. Maney observed Mr. Rodriguez distributing Hoffa campaign paraphernalia when he arrived at the June 28 membership meeting and that Mr. Needham strongly opposed the subsequent “political” discharge of Mr. Rodriguez.

While the protesters assert to the Election Officer that Mr. Maney discharged them for election-related activities, Mr. Maney told the Election Office Representative that they informed the Teamster National Black Caucus that their discharges were due to their status as minorities,[3]  and they informed the National Labor Relations Board that they were discharged due to union activity, i.e. their attempt to have the trusteeship of Local Union 813 dissolved and to have

Mr. Maney removed as trustee.

Jaime Rodriguez

November 4, 1998

Page 1

John Skala, an Independent Review Board (“IRB”) investigator also assigned by the Federal District Court to be the investigating officer for Local Union 813, corroborated

Mr. Maney’s version of events.  He noted that, at Mr. Maney’s request, he accompanied

Mr. Maney to one of the shop steward meetings in early August.  He confirmed that the stewards all spoke of their distrust and dissatisfaction with the services of Messrs. Rodriguez and Needham as business agents.  He noted that Mr. Maney had gotten numerous complaints regarding Mr. Rodriguez from other members for at least a year prior to his discharge.

Mr. Skala noted that he had no idea the protesters were supporting Mr. Hoffa and had never seen them campaigning.  He volunteered that in conversations he held with both protesters after their discharges, neither business agent ever alleged to him that they were discharged over their political or election-related activities, stating to him instead that they felt the discharges were due to the fact that they “attempted to take over the local by forcing Maney out.”

Finally, Mr. Skala stated that even though there were no governmental or IRB charges pending against the protesters nor any evidence that either protester was involved in any illegal activities that would warrant their removal from union office, Mr. Maney still had the discretionary right, under the IBT Constitution,  to discharge the business agents.  He added that, regardless of Mr. Maney’s motivations in removing the two men, he had seen no evidence connecting their removal to any election-related activities.

Article VIII, Section 11(f) of the Rules prohibits retaliation against any member by the Union and its agents for exercising any right guaranteed by the Rules.  Article VIII, Section 11 (a) protects a member’s right to participate in campaign activity.  No violation of Article VIII, Section 11(f) can be sustained, however, unless some evidence is presented or disclosed which expressly or inferentially connects the conduct which is alleged to be improper to 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).  There is no retaliation where the Election Officer concludes that the union officer or entity would have taken the same action even in the absence of the protester’s protected conduct.  Gilmartin, P-032-LU245-PNJ (January 5, 1996), aff’d, 95 - Elec. App. - 75 (KC) (February 6, 1996).  See Leal, P-051-IBT-CSF (October 3, 1995), aff’d, 95 - Elec. App. - 30 (KC) (October 30, 1995); Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995) (“[I]t will not be a violation to remove a member from an appointed position if there was basis for doing so independent of the election process.”).

Jaime Rodriguez

November 4, 1998

Page 1

Article XIV, Section 1 of the Rules places the burden on the complainants “to present evidence that a violation has occurred.”  Furthermore, the Election Appeals Master has stated that the protester bears the initial burden of proof to offer evidence substantiating his allegation.  In re: Chentnik, 95 - Elec. App. - 52 (KC) (January 10, 1996).  Rules, Article XIV, Section 1. The Election Officer has consistently denied protests when the protester offers insufficient evidence to corroborate his allegations.  Hoffa, PR-043-LU385-SCE (January 9, 1998); Pike, P-278-LU952-CLA (January 30, 1996).

The evidence established that hostility existed between the protesters and Mr. Maney over Local Union 813's trusteeship status as well as over Mr. Maney’s actions as trustee.  There is insufficient evidence to show that support for the candidacy of Mr. Hoffa or any other matter relating to the rerun election was a motivating factor in Mr. Maney’s decision to remove Messrs. Rodriguez and Needham from their position as business agents.  Further, the protester’s also failed to present any evidence showing any violation of the Rules on the part of the Metz Slate or Messrs. Padellaro and Sever.  With respect to the protester’s contention that they were discharged due to their opposition to the trusteeship, the Election Officer has no authority to resolve those allegations. Ryan, P-1149-LU150-CSF (November 21, 1996); Kantrowitz, PR-033-LU705-NCE (December 16, 1997).

Accordingly, the protest is DENIED.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY  10022

Fax:  (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 444 North Capitol Street, NW, Suite 445, Washington, DC  20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Michael G. Cherkasky

Election Officer

cc:              Kenneth Conboy, Election Appeals Master