January 6, 1999
VIA FIRST-CLASS MAIL
Charles R. Engel
January 6, 1999
Page 1
Charles R. Engel
71 Ball Road
Walnut Creek, CA 94596
Stephen J. Mack, Secretary-Treasurer
Teamsters Local Union 78
492 “C” Street
Hayward, CA 94541
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
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Charles R. Engel
January 6, 1999
Page 1
Re: Election Office Case No. PR-269-LU78-EOH
Gentlemen:
Charles R. Engel, a member of Local Union 78, 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 Steve Mack, secretary-treasurer of Local Union 78. The protester alleges that Mr. Mack removed him from his position as shop steward in retaliation for his opposition to candidates on the Hoffa Unity Slate (“Hoffa Slate”), his support of Tom Leedham, a candidate for general president, and his membership in Teamsters for a Democratic Union (‘TDU”).
Mr. Mack denies the allegation. He states that Mr. Engel was not the shop steward at the time and that, under the local union by-laws, he conducted an election for shop steward.
This protest was investigated by Protest Chief Mary E. Leary.
Charles R. Engel
January 6, 1999
Page 1
The protester works at the United Parcel Service (“UPS”) Oakland Hub at a car wash facility. He works in a small shop with approximately ten members of Local Union 78. It appears that sometime during 1997, UPS terminated the protester for a no call/no show violation due to an unexcused absence for uncovered funeral leave. At that time, the protester was the elected shop steward at this location. After a grievance was filed, the termination was converted to a three-day suspension. The protester did not return to work and went onto worker’s compensation for stress-related leave. He was not cleared by his doctor to return to work until June 15, 1998. During early 1998, the protester contended that UPS should permit him access to the property on union-related business, presumably to handle grievances.
Mr. Mack contends that UPS agreed to permit the protester access to the property, but the protester refused to come on the property, contending he was afraid to enter the property without a local union official accompanying him. The protester, in a series of documents filed with the investigator, claimed that UPS refused to give him his employee pass. On March 6, 1998, Mr. Mack wrote to the protester advising him that until he returned to work, the grievances would be handled by Shop Steward Matt McLoone and Business Agent Dan Varela.
Mr. Mack states that sometime in May, 1998, the employees sought the election of a new shop steward. An election was conducted and Ray Kindle was elected shop steward. The protester states that he was not permitted to participate because the union representative would not accompany him onto UPS property in order to allow him to run and his doctor would not permit him to go onto the property unaccompanied. The protester additionally asserts that the shop steward election was a sham.
When the protester returned to work in June 1998, he claimed he was the night shop steward. Mr. Mack stated to the investigator that he has received complaints from the members that the protester is holding himself out as the shop steward when the elected steward is Mr. Kindle. Mr. Mack claims that the protester is not an elected or appointed shop steward at this time.
There is evidence of ongoing animus between Mr. Mack and the protester which precedes the International Officer Rerun Election. Additionally, there is evidence from the protester that he openly campaigned against Mr. Hoffa and for Mr. Leedham, an opposing candidate for general president. However, there is no evidence that Mr. Mack retaliated against Mr. Engel due to his campaign activities by removing him as shop steward, as contended.
Charles R. Engel
January 6, 1999
Page 1
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).
Here, the Election Officer has found no evidence that the protester’s removal as shop steward, whether or not conducted in compliance with the local union procedures, was in retaliation for his support of Mr. Leedham or his opposition to Mr. Hoffa. In the voluminous correspondence sent to this office by the protester in support of his position, neither the campaign nor the protester’s political preferences is ever mentioned. Moreover, it appears that the disputes between the protester and the local union’s leadership precede the International Officer Rerun Election.
In his protest, the protester also states that Joint Council 7 threatened him due to postings he placed on the Internet. On March 12, 1998, Joint Council 7 Recording Secretary Rome Aloise wrote to the protester about a notice he placed on his web site which appeared “to have been put out by Teamsters Joint Council No. 7.” Mr. Aloise demanded that the notice be removed immediately. The protester has not shown that this demand was election-related. Moreover, his allegation in this regard is clearly untimely as his protest was filed on September 3, 1998.
Accordingly, the protest is DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one 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:
Charles R. Engel
January 6, 1999
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, 400 N. Capitol Street, Suite 855, 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