October 20, 1998
VIA FIRST CLASS MAIL
Randy Olson
October 20, 1998
Page 1
Randy Olson
1825 San Jose Street
San Leandro, CA 94577
Chuck Mack, Sec. - Treas.
Teamsters Local Union 70
70 Hegenberger Road
Oakland, CA 94521
Marty Frates, Business Rep.
Teamsters Local Union 70
70 Hegenberger Road
Oakland, CA 94521
John Naddy
Teamsters Local Union 70
70 Hegenberger Road
Oakland, CA 94521
Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
Randy Olson
October 20, 1998
Page 1
Re: Election Office Case No. PR-295-LU70-EOH
Gentlemen:
Randy Olson, a member of Local Union 70, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International and Officer Election (“Rules”) against Chuck Mack, Marty Frates and John Naddy. Mr. Mack is the secretary-treasurer of Local Union 70 and a candidate for Western Region vice-president.
Mr. Frates is employed by Local Union 70 as a business representative. Mr. Naddy is the East Bay District Labor Manager for the United Parcel Service (“UPS”), Mr. Olson’s former employer. The protester alleges that he was not fairly represented at a grievance panel hearing by Mr. Frates because of his “political views” and his support for Tom Leedham, a candidate for general president. Mr. Frates denies the allegation and contends that the protest was not filed in a timely manner.
Randy Olson
October 20, 1998
Page 1
The protest was investigated by Election Office Counsel David S. Paull.
The investigation disclosed that Mr. Olson has been absent from his job since September 1, 1995, due to an automobile accident. On August 7, 1998, UPS mailed the protester a letter advising him of his discharge for “exceeding the leave of absence time limits,” citing a provision of an applicable collective bargaining agreement. Local Union 70 filed a grievance protesting his termination on August 10, 1998, requesting that Mr. Olson “not be discharged and suffer no loss of wages, seniority or benefits.” Local Union 70 assigned Mr. Frates to represent Mr. Olson in the grievance proceeding.
A hearing was scheduled for Mr. Olson’s grievance on September 3, 1998. Prior to that date, Mr. Olson requested a postponement. The collective bargaining agreement permits any case to be postponed one time on grounds of “physical illness of one or more of the principles involved, or other serious reason, or upon mutual consent of the parties concerned.” UPS advised Local Union 70 that UPS would not agree to a postponement of Mr. Olson’s case.
Mr. Frates contacted Mr. Olson on several occasions and told him it was “imperative” that he attend the hearing.
On the day of the hearing, Mr. Olson sent Mr. Frates a note indicating that he could not attend because of “stress brought on by treatment which UPS has inflicted on me!” He also provided Mr. Frates a note from the San Leandros Hospital Emergency Department. The note stated that Mr. Olson would “not be able to attend his hearing in Reno on 9/3/98,” but failed to include any statement connecting Mr. Olson’s lack of attendance to any particular medical condition or ailment.
The hearing was held as scheduled. Without success, Mr. Frates again requested that UPS agree to postpone the hearing. The request was refused and the decision terminating
Mr. Olson’s employment was upheld.
The protester filed his protest on September 10, 1998, four days after he first became aware of the grievance decision. Article XIV, Section 2(b) of the Rules requires protesters to file “within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested.” The short time limits are important to ensure that alleged violations of the Rules are quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy if a violation is found. “Nevertheless, the Election Officer has not treated time limits as an absolute jurisdictional requirement, but rather as a prudential restriction.” Hoffa, P-788-IBT-EOH (June 18, 1996); Blake, P-712-LU630-CLA (April 29, 1996).
Randy Olson
October 20, 1998
Page 1
In prior cases, the Election Officer has waived the timeliness requirements of the Rules if the protest was not excessively untimely. The Election Officer determines that this is a proper case for the waiver of the timeliness requirements of the Rules at Article XIV, Section 2(b).
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).
Although Mr. Olson provided several documents as evidence and letters containing arguments in support of his protest, he has submitted no evidence showing that the actions of
Mr. Frates, Mr. Mack or Mr. Naddy occurred in retaliation for any election-related activity.
Mr. Olson bears the burden to come forward with sufficient evidence to support the conclusion that a violation has occurred. Rules, Article XIV, Section 1. The Election Officer has consistently denied protests when the protester offers insufficient evidence to corroborate and support his allegations. Hoffa, PR-043-LU385-SCE (January 9, 1998); Pike, P-278-LU952-CLA (January 30, 1996).
On October 9, 1998, the Election Officer’s representative telephoned Mr. Olson and left a message to return the call and to submit, all evidence supporting his claim, by October 14,1998. Although the protester subsequently provided additional documents, he never returned the call. The Election Officer’s message also specifically requested that Mr. Olson forward all evidence supporting his contention that his representation by Local Union 70 was unfair and due to “your support of Mr. Leedham.” The protester submitted no evidence connecting any of the material facts in this case to the exercise of an election-related right. There is further no evidence that
Mr. Mack or Mr. Naddy violated the Rules as alleged by Mr. Olson.
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
Randy Olson
October 20, 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
cc: Kenneth Conboy, Election Appeals Master