November 30, 1998
VIA FIRST CLASS MAIL
David Leininger
November 30, 1998
Page 1
David Leininger
200 N. Pecos Road, Space #86
Las Vegas, NV 89101
Larry Miller
Corporate Administrator
Nevada Ready Mix
6610 E. Vegas Valley Drive
Las Vegas, NV 89122
Robert R. McClone, Sec.-Treas.
Teamsters Local Union 631
P.O. Box 1870
Las Vegas, NV 89125
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
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Hoffa Slate
c/o Patrick J. Szymanski, Esq.
Baptiste & Wilder
1150 Connecticut Avenue, NW
Suite 500
Washington, DC 20036
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
David Leininger
November 30, 1998
Page 1
Re: Election Office Case No. PR-346-LU631-EOH
Gentlemen:
David Leininger, a member of Local Union 631, 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 his employer, Nevada Ready Mix (“NRM”).
Mr. Leininger alleges that he was fired from NRM in retaliation for his filing of an earlier protest. NRM denies the allegation and responds that the firing of Mr. Leininger was not related in any way to the International Officer Rerun Election.
David Leininger
November 30, 1998
Page 1
The protest was investigated by Election Office Staff Attorney Peter F. Gimbrère.
Mr. Leininger is a driver working out of an NRM facility located in Las Vegas, Nevada. In August, 1998, Mr. Leininger filed a protest alleging that NRM removed a campaign sticker from the company vehicle assigned to him while leaving different campaign stickers on other company vehicles, in violation of the Rules. In Leininger, PR-260-LU631-EOH (October 1, 1998), the Election Officer denied the protest, finding NRM not liable for any violation of the Rules.
On October 13, 1998, NRM informed Mr. Leininger through a phone message system that on the following day he was not to report to his regular plant, the NRM Arrville plant, or to drive the truck regularly assigned to him, truck #190. Instead, he was ordered to report to another facility, the NRM Bonanza plant, and to drive truck #226 which was located there. The company provided the Election Office with a taped message left on their answering machine by Mr. Leininger regarding his October 13 assignment. According to NRM Corporate Administrator Larry Miller, the message left by Mr. Leininger constitutes “insubordination” as well as “open defiance” of the company’s order.
On the tape, a copy of which was reviewed by the Election Office investigator,
Mr. Leininger is heard stating that the company’s practice of ordering drivers to travel to secondary NRM facilities on their own time constitutes a unilateral change of the terms in the collective bargaining agreement. He states that NRM’s practice has been the source of a number of grievances, which are pending. Finally, he states that due to these outstanding grievances and his rights as guaranteed by the National Labor Relations Act, he intends to take his regularly assigned truck the following morning. He added that if the company wished to respond they should call him or his business agent before the beginning of his shift the next morning.
On October 14, Mr. Leininger proceeded to the Arrville plant, picked up truck #190 at least one hour before his assigned start time, and proceeded to drive that truck to the Bonanza plant. Parking the truck outside the front main entrance of the plant, Mr. Leininger then utilized the remainder of his free time prior to the start of his shift to distribute campaign leaflets for the Tom Leedham “Rank and File Power” Slate (“Leedham Slate”). Later that day, the protester was suspended by NRM management without explanation.
On October 15, 1998, the protester had two telephone conversations with NRM management, one with Ronald Reed, the NRM Dispatch Supervisor and one with Mr. Miller, the Corporate Administrator for NRM. Mr. Leininger stated that Mr. Reed said that NRM suspended Mr. Leininger because “you took our truck to Bonanza to do other things . . . you took our truck two hours early.” Mr. Miller told Mr. Leininger that he was “suspended because you didn’t follow instructions . . you’re suspended so that we can review a case of insubordination that happened on October 14 . . . that’s one of the issues that’s being considered . . . there are other issues . . . the charges against NRM has nothing to do with it.” Later, in response to
David Leininger
November 30, 1998
Page 1
Mr. Leininger asking Mr. Miller if he felt harassed by the charges filed against him, Mr. Miller is heard to say “yeah.” Mr. Leininger informed the Election Office investigator that he had filed six or seven formal charges against both Mr. Miller and NRM with various different federal agencies, including the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, and the National Labor Relations Board.
In a letter dated October 16, 1998, NRM informed Mr. Leininger that his suspension had been converted into a termination “due to [his] failure and refusal to comply with the orders of [his] supervisor and [his] unauthorized removal of a company vehicle from the Arrville plant on or about October 14, 1998.”
On October 21, during Mr. Leininger’s grievance hearing, as provided for by the collective bargaining agreement currently in existence between NRM and Local Union 631, NRM was presented with evidence showing that other company drivers who in the past had taken the exact same course of action as Mr. Leininger had not been disciplined. Both NRM and Mr. Leininger provided the Election Office with examples of these other employees taking their regularly-assigned trucks from one NRM plant and driving it to a second NRM plant without the explicit permission of the company when the company had assigned them to a different truck already located at the second plant. During the grievance hearing, Mr. Leininger alleges that Mr. Miller asked him “what did you think you were doing taking a company vehicle with you when you were campaigning outside of the plant?” Since the grievance hearing, three of the drivers previously identified have received two-day suspensions from work and the fourth received a one-day suspension. The Election Office notes that NRM only disciplined the other four drivers after the existence of the other four violations had been brought to their attention during Mr. Leininger’s grievance hearing and after NRM had already disciplined Mr. Leininger.
In a letter dated October 23, 1998, NRM informed Mr. Leininger that the earlier termination notice was rescinded but that he still was “suspended without pay with the opportunity to return to work on November 30" and that he was prohibited from coming on to company property for any reason.
On October 26, 1998, Mr. Leininger informed the Election Office investigator that prior to his grievance hearing, the IBT Ethical Practices Committee had ordered Local Union 631 Business Agent David Deitrich to cease from representing the protester in all union functions due to the fact that Mr. Leininger had filed a number of “failure of duty to fairly represent” charges against him. Consequently, Mr. Leininger was represented by Local Union 631 Business Agent Bill Dooley at the grievance hearing.
On October 30, the protester returned to work for NRM. On November 4, 1998,
David Leininger
November 30, 1998
Page 1
Mr. Miller confirmed that Mr. Leininger had been reinstated and informed the Election Office investigator that Mr. Leininger’s original thirty (30) work day suspension had been reduced to a fourteen (14) work day suspension without pay. When asked to explain the discrepancy in the terms of suspension between Mr. Leininger and the other four drivers, Mr. Miller reiterated that the taped message left by Mr. Leininger on October 13 constituted insubordination and consequently required a more severe form of discipline. Local Union 631 informed the Election Office investigator that despite having a past practice of counting suspension periods by calendar days, in Mr. Leininger’s case, the company was insisting in counting his suspension period in work days, thereby prolonging the suspension period.
On November 17, 1998, the Election Office received from Local Union 631 a copy of a letter dated October 22, 1998. The letter, signed by Mr. Deitrich, reads as follows:
Grievance 09695
On 10-22-98 David Leininger agreed to accept time off as a suspension for the incident outlined in this Grievance. The Local Union agrees with this disposition as well. This therefore resolves this grievance to all parties satisfaction.
Agreed to by Member: Agreed to by Union
[signature]
David Deitrich
Date: Date: 10-22-98
The protester informed the Election Officer representative that while he returned to work, he did not sign the October 22 letter (which would effectively dismiss his grievance) due to his belief that the length of his suspension constituted “unequal punishment.” Furthermore, Mr. Leininger was not even made aware of this letter and the option to return to work until October 29, 1998. Mr. Dooley was on vacation and away from Local Union 631 from October 26 to October 30.
The Rules, at Article VIII, Section 11(f), prohibit “[r]etaliation or threat of retaliation
by . . . any subordinate body . . . any employer or other person or entity against a Union member. . . for exercising any right guaranteed” under the Rules. To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the decision or the conduct in dispute. Thus, the protester must show that he was suspended because of his earlier action of filing a protest or due to his campaigning in support of a candidate in the Rerun Election. The Election Officer will not find retaliation if he concludes that the employer would have taken the same action even in the absence of the protected conduct. See Gilmartin, 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).
David Leininger
November 30, 1998
Page 1
In the instant case, the Election Officer is aware that the protester filed a grievance regarding both his termination and the terms of his suspension with Local Union 631. While there is some disagreement over the status of the grievance, both Local Union 631 and NRM consider the grievance resolved. Consequently, the Election Officer finds that the protest has been resolved by the grievance process regardless of the fact that Mr. Leininger refused to sign the “grievance resolution” letter of October 22, 1998. In light of the fact that Mr. Leininger has returned to work and the protested activity has ceased, the Election Officer concludes that further processing of this protest is unwarranted. The protester’s complaint, as contained in this protest, has been addressed.
Accordingly, the protest is RESOLVED.
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:
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
IBT Ethical Practices Committee