January 27, 1999
VIA FIRST CLASS MAIL
Michael Solomon
January 27, 1999
Page 1
Michael Solomon
820 Grand Avenue
Metairie, LA 70003
George J. Westley, President
Teamsters Local Union 270
701 Elysian Fields Avenue
New Orleans, LA 70117
Jerry Tolbert, Business Agent
Teamsters Local Union 270
701 Elysian Fields Avenue
New Orleans, LA 70117
Paul Alan Levy, Esq.
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
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
Ken Paff
Teamsters for a Democratic Union
7435 Michigan Avenue
Detroit, MI 48210
Michael Solomon
January 27, 1999
Page 1
Re: Election Office Case No. PR-380-LU270-EOH
Gentlemen:
Michael Solomon
January 27, 1999
Page 1
Michael Solomon, a member of Local Union 270, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 International Union Delegate and Officer Election (“Rules”) against Local Union 270, President George Westley and Business Agent Jerry Tolbert. The protester alleges that he was removed as shop steward at the UPS Earhart Center because of his support for Tom Leedham, a candidate for general president, and his TDU involvement. The protester states that after receiving notice of his removal on October 31, 1998, he spoke with Mr. Westley on November 2, 1998, who told the protester that he was removed because of his poor working relationship with Mr. Tolbert. The protester claims Mr. Westley’s justification for his removal is pretextual. In support of his contention, the protester also alleges that shop stewards Gary Danmare, Jim Broidy, Tommy Trahan and Danny Mitchell, fellow supporters of Tom Leedham, were removed at the same time.
Messrs. Westley and Tolbert deny that the protester or other shop stewards were removed because of their support for Mr. Leedham or TDU involvement. Rather, both Messrs. Westley and Tolbert claim that the protester was removed as shop steward because of his contentious and antagonistic relationship with Mr. Tolbert.
The Election Officer deferred this protest for post-election review pursuant to his authority under Article XIV, Section 2(f)(2) of the Rules.
The protest was investigated by Election Office Staff Attorney Kathryn A. Naylor.
The protester claims that on Monday, November 2, 1998, when he spoke with Mr. Westley regarding his removal, Mr. Westley stated that the protester was removed because he could not get along with Mr. Tolbert and that his relationship with Mr. Tolbert was detrimental to the union. The protester noted that neither he nor Mr. Westley mentioned his support for Mr. Leedham or his TDU activity in this conversation.
The protester concedes that he has had a contentious relationship with Mr. Tolbert. He states, however, that the last heated argument between himself and Mr. Tolbert occurred in early July, 1998 and involved Mr. Tolbert’s decision to sit with UPS representatives and not the protester and other union members during a grievance hearing. The protester states that as a result of this incident, he spoke with TDU regarding Mr. Tolbert’s actions at the grievance hearing and a critical column on Mr. Tolbert’s actions appeared in TDU’s newspaper, Convoy Dispatch.
The protester claims that local union officers, including Messrs. Westley and Tolbert, were aware of his support for Leedham and TDU because he openly engaged in conduct that showed his political leanings. First, he regularly passed out campaign literature for Leedham and has worn Leedham t-shirts daily since late August, 1998. Second, in early September 1998, he was involved in a heated exchange with Trustee Mike Smith and Business Agents O.P. Davis and Sidney Massengail who were campaigning in support of the Hoffa campaign outside the gate of the UPS facility. The protester stated that all three individuals told the protester that, “we hear you’re the Leedham guy everywhere we go; you must be TDU.” Third, in mid-September 1998, the protester alleges that he was among a group of stewards and members who met with
Mr. Westley to discuss why Mr. Westley was supporting Mr. Hoffa in the International Officer Rerun Election and the alleged incompetence of Mr. Tolbert.
Michael Solomon
January 27, 1999
Page 1
Messrs. Westley and Tolbert vehemently deny that the protester or other stewards’ support for Mr. Leedham or their TDU involvement was a factor in the decision to remove them as stewards, but rather that the decision was based solely on their acrimonious relationship with Mr. Tolbert. Mr. Westley stated that in mid-September, before the nominations for offices in Local Union 270's local election, a group of stewards and members led by Mr. Broidy, met with Mr. Westley. They demanded the removal of Mr. Tolbert as the business agent, otherwise
Mr. Broidy would oppose Mr. Westley for local union president. Mr. Westley stated that he resented this ultimatum and was not willing to terminate Mr. Tolbert. Mr. Westley mentioned that he did not find the group’s accusations about Mr. Tolbert’s incompetence credible and believed that racial bias might be involved. Messrs. Westley and Tolbert are African-American and the protester and the stewards who were removed are white.
Messrs. Broidy, Danmare, Trahan and Mitchell opposed Mr. Westley and the incumbent administration for local union office. The protestor supported the candidates opposed to Westley’s team. According to both Messrs. Westley and Tolbert, at the height of the campaign, the protester and other stewards made their disregard for Mr. Tolbert a focal part of the opposition campaign. Mr. Tolbert stated that members at the Earhart facility have heard the protester state on numerous occasions that Mr. Tolbert is in “bed with the company.”
Mr. Westley mentioned that even after his victory in the local union election in early October, 1998, the stewards continued to voice their reluctance and difficulty in working with Mr. Tolbert and to encourage members to refuse to work with Mr. Tolbert. A few weeks after the election, Mr. Westley stated that he received a number of calls from members who said that the protester and stewards were advising them to deal only with Mr. Westley and not Mr. Tolbert regarding grievances and other issues. Mr. Westley claims that after receiving a number of these calls, he spoke with Mr. Tolbert about the matter and Mr. Tolbert decided to remove them as stewards. Mr. Tolbert stated that he decided to remove the stewards after the local union officer election since it was abundantly clear that he could neither trust nor continue to work with them in light of their disloyalty, their criticism during the local union officer campaign and their expressed unwillingness to work with him. Both Messrs. Westley and Tolbert contend that the decision to remove the stewards conforms with the bylaws of Local Union 270 that grants business agents the authority to appoint stewards at their discretion from members under their jurisdiction.
Both Messrs. Westley and Tolbert claim that they have not had any discussions with the protester or anyone else regarding the protester’s support for Mr. Leedham in the rerun election. Mr. Tolbert states that he has not seen the protester wearing campaign paraphernalia in support of Mr. Leedham. Mr. Westley admits that there was some discussion about his support for Mr. Hoffa in mid-September; however, Mr. Westley contends that the discussion focused on Mr. Westley’s decision to send letters endorsing the Hoffa Unity Slate to members in the local union without first surveying or polling the membership as he had done in 1996, and not on the stewards’ alleged support for Mr. Leedham.
Michael Solomon
January 27, 1999
Page 1
Mr. Trahan initially stated that he was removed as steward for the following two reasons: (1) he ran for local union office against Mr. Westley and the incumbent officers, and (2) he supported Mr. Leedham while Mr. Westley supported Mr. Hoffa. However, near the end of the interview, Mr. Trahan conceded that he did not believe that the stewards were ousted because of their support for Leedham, but rather because they did not see eye to eye with Mr. Tolbert. Mr. Trahan admitted that he could not work with Mr. Tolbert. Mr. Trahan stated that the members were very aware of the protester and other stewards’ disregard for Mr. Tolbert as a business agent. Mr. Trahan stated that the protester was the most active and vocal supporter of their slate against Mr. Westley and the incumbent officers in the local union officer election.
Mr. Broidy maintained that he and the other stewards were removed because they were all boisterous supporters of Tom Leedham and that he has had discussions with Messrs. Westley regarding his support for Mr. Hoffa. Mr. Broidy stated that when he spoke with Mr. Westley regarding his removal as shop steward, Mr. Westley told him that he was replaced because he did not get along with Mr. Tolbert. Mr. Broidy stated that he responded that was fine because
Mr. Tolbert was not a good business agent and it was hard to work with someone who is incompetent. Mr. Broidy admitted that neither he nor Mr. Westley raised his support for
Mr. Leedham as a reason for his removal during this conversation. Mr. Broidy admitted that he has had numerous disagreements with Mr. Tolbert regarding Mr. Tolbert’s alleged failure to represent members, degrading treatment of members and always acquiescing to UPS’ demands or concerns.
Mr. Mitchell stated that he does not believe that he was removed as a steward due to his support for Mr. Leedham. Specifically, Mr. Mitchell believes that by affiliating with Mr. Broidy and other members of the slate who frequently challenge Mr. Westley, he was branded as a radical. Mr. Mitchell stated that his business agent, Sidney Massengail, has made comments to the effect that Mr. Mitchell affiliated with the “wrong crowd,” and was referring to Mr. Broidy’s slate not in terms of their support for Mr. Leedham but rather as individuals who publicly challenge Mr. Westley and the incumbent administration.
Michael Solomon
January 27, 1999
Page 1
Mr. Danmare maintains that he was removed as a steward because of his support for Mr. Leedham. Mr. Danmare claims that Mr. Westley was aware of his support for Mr. Leedham as evidenced by Mr. Westley’s actions at an event commemorating the UPS strike in June or July, 1998. Mr. Westley made a campaign speech in support of Mr. Hoffa and at the end of his speech, Mr. Westley addressed Mr. Danmare and told him that the floor was his to say whatever he wanted, presumably against Mr. Hoffa or in support of Mr. Leedham. Mr. Danmare stated that thirteen years ago he had problems with Mr. Westley and his anti-TDU stance. Mr. Danmare stated that he did not have any personal problems with Mr. Tolbert, but does not like how he has represented members for the past two years and along with the other stewards wanted Mr. Westley to remove him in order to move in the right direction for the membership. Mr. Danmare stated that sometime in June or July 1998 he told Mr. Tolbert directly that he did not like how he represented members. Mr. Danmare also mentioned that he has had bad feelings regarding how Mr. Tolbert handled a grievance with UPS on Mr. Danmare’s behalf.
Mr. Danmare denied that his slate was critical of Mr. Tolbert during their campaign for local union office. However, Mr. Danmare also stated that one of the goals of his slate in the local union election was to seek better representation for the members because he believed 70% of the members would be dissatisfied with Mr. Tolbert’s representation.
Article VIII, Section 11(f) of the Rules prohibits any retaliation against anyone by the union or its agents for exercising any right guaranteed by the Rules.[1] 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. 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). The Election Officer has determined that “it is not a violation of the Rules to remove a member from an appointed position if there was a basis for doing so independent of the election process.” Wsol, supra.
The Rules and these applicable principles require the establishment of three elements before any allegation of retaliation can be sustained:
(1) A showing that the protester was engaged in an activity protected by the Rules;
(2) A showing that the charged party had actual or constructive knowledge that the protester was so engaged; and
(3) The activity which is protected by the Rules was a motivating factor in causing the adverse action.
Michael Solomon
January 27, 1999
Page 1
No violation of the Rules at Article VIII, Section 11(f) can be sustained unless some evidence is presented or disclosed which expressly or inferentially connects the conduct which is alleged to be improper to an activity protected by the Rules. Giacumbo, P-100-IBT-PNJ (October 13, 1995); Salucci, P-178-LU552-MOI (October 31,1995).
The Election Officer finds that there is insufficient evidence to establish that Messrs. Tolbert and Westley were aware of the protester’s support for Mr. Leedham or his TDU activities. However, assuming arguendo that Messrs. Tolbert and Westley were aware of the protester’s support for Mr. Leedham, the Election Officer cannot conclude that the protester was removed as shop steward in retaliation for his support of Mr. Leedham or his TDU activities. Based on all of the evidence, including the former stewards’ concessions concerning their active political opposition to Mr. Tolbert in the local union election and their inability to work with him, the Election Officer concludes that Mr. Tolbert removed the stewards, including the protester, for reasons unrelated to the IBT International Officer Rerun Election. Moreover, given the protester’s and other stewards’ attempts to convince Mr. Westley to remove Mr. Tolbert in mid-September, the protester’s remarks criticizing Mr. Tolbert’s representation of members during the local union officer election campaign, and the lack of any evidence connecting the protester’s removal to an election-related right, the Election Officer also concludes that the timing of the protester’s removal in late October is not indicative of an improper motive.
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
Michael Solomon
January 27, 1999
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
[1]Article VIII, Section 11(f) of the Rules states:
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.