Protest Decisions

              May 25, 1999

VIA UPS OVERNIGHT

Doreen Gasman

May 25, 1999

Page 1

Doreen Gasman

2517 NE 13th Court

Fort Lauderdale, FL  33304

T.C. Bundrant

427 Ollis Bowers Hill Road

Kingsport, TN 37664

W. Lamar Mathis

Teamsters Local Union No. 769

8350 N.W. Seventh Avenue

Miami, FL 33150

Hugo A. Hernandez

8998 NW 114 Terrace

Hialeah Gardens, FL  33018

Frelan Patrick

1951 Harbor Hills Drive

Dandridge, TN  37725

Doreen Gasman

May 25, 1999

Page 1

VIA HAND DELIVERY

Doreen Gasman

May 25, 1999

Page 1

James P. Hoffa, General President

International Brotherhood of Teamsters

25 Louisiana Avenue

Washington, D.C. 20001

Paul Alan Levy, Esq.

Public Citizen Litigation Group

1600 20th Street NW

Washington, D.C. 20009

Patrick J. Szymanski, General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue

Washington, D.C. 20001

Doreen Gasman

May 25, 1999

Page 1

VIA FACSIMILE

Doreen Gasman

May 25, 1999

Page 1

Hoffa Unity Slate

c/o Bradley T. Raymond, Esq.

Finkel, Whitefield, Selik, Raymond,

   Ferrara & Feldman

32300 Northwestern Highway, Suite 200

Farmington Hills, MI 48334

Joseph W. Morgan, Trustee

Teamsters Local Union 390

2514 Hollywood Blvd., Suite 502

Hollywood, FL 33020

Tony Cannestro, President

Teamsters Local Union 769

8350 NW 7th Avenue

Miami, FL 33150

Doreen Gasman

May 25, 1999

Page 1

Doreen Gasman

May 25, 1999

Page 1

Bob Barb, President

Teamsters Local Union 549

2857 Highway 11-W

Blountville, TN XXX-XX-XXXX

Doug Mims

1645 Brantford Drive

Tucker, GA 30084

Ronnie Martin, President

Teamsters Local Union 480

P.O. Box 100230

Nashville, TN XXX-XX-XXXX

Barbara Harvey, Esq.

645 Griswold, Suite 1800

Detroit, MI 48226

Doreen Gasman

May 25, 1999

Page 1

Re:               Election Officer Case Nos.               SR-02-IBT-EOH

SR-05-IBT-EOH

SR-07-IBT-EOH

SR-08-IBT-EOH

Gentlepersons:

Pre-election protests in the Southern Region Rerun Election were filed under Article XIV, Section 2 of the Rules for the 1995-1996 International Union Delegate and Officer Election (“Rules”) by the following individuals:

Doreen Gasman (SR-02), a member of IBT Local Union 769 and formerly an IBT International Organizer;

Hugo A. Hernandez (SR-05), a member of IBT Local Union 390 and formerly an IBT International Organizer;

T.C. Bundrant (SR-07), a member of IBT Local Union 519 and formerly an IBT International Organizer; and

Frelan Patrick (SR-08), a member of IBT Local Union 480 and formerly an IBT International Organizer. 

Each of these four individuals was, until recently, employed by the IBT as an International Organizer and alleges that the new Hoffa Administration terminated their employment either in retaliation for their opposition to the Hoffa Slate in the 1996 election and/or rerun election, in an attempt to coerce and intimidate voters in the Southern region, or in an effort to thwart the protesters’ ability to support the candidate of their choice in the Southern Region Rerun.  All of the protesters are IBT members.  The IBT denies that the terminations were made for reasons having to with the election or protestors’ political affiliations or actions in support of any candidate, and asserts that legitimate policy reasons support the terminations.

Doreen Gasman

May 25, 1999

Page 1

The protests were investigated by Election Office Associate General Counsel Geoffrey Millsom.

1. Factual Background

The Election Officer certified certain results of the 1996 Rerun election on March 19, 1999 and the newly-elected IBT General Executive Board members assumed office shortly thereafter.  On the date of certification, Judge Edelstein ordered a rerun election for one vacant International Vice President seat in the Southern Region.  Three days later, on March 22, 1999, the new members of the General Executive Board adopted a “Resolution On Transitional Personnel Policies” that provided in part:

The General President and General Secretary-Treasurer are authorized to implement such personnel actions and transactions as each deems necessary and appropriate in his respective area of responsibility to ensure the employment of adequate and qualified staff possessing views which are compatible with those of the new administration.

Shortly thereafter, the new administration of the IBT announced several changes that significantly altered the internal structure of the Union and resulted in the termination of the protesters. 

The new administration redesigned the Organizing Department and made newly-installed International Vice President John Murphy head of the unit.  The administration stated that its objectives in redesigning the department were to move the responsibility for the work that had been done in Washington into the subordinate bodies (local unions and joint councils) that operate in the field areas where the organizing campaigns are occurring.  The administration hopes that this shift in responsibility will get locally-knowledgeable members more involved in organizing and will encourage cooperation among all administrative levels of the Union.  The administration also stated that it intended to shrink the size of the International’s workforce and payroll and to reduce the travel expenses associated with deploying a large staff of organizers from Washington, D.C. to points around the country. 

In pursuit of these objectives, on March 31, 1999 Mr. Murphy terminated all employees on the Organizing Department staff list except for two organizers and two clerical staff.  The department had only two clerical employees on staff when Mr. Murphy took over.  Nineteen of the Organizing Department employees on the department roster had titles of International  Organizer or International Representative.  Seventeen of the nineteen were terminated from the department.[1]  The four protesters were among those terminated. 

Doreen Gasman

May 25, 1999

Page 1

The IBT states that two of the organizers were retained in the department because they had long-term assignments on important organizing campaigns and continuity was a significant concern.  Those two organizers were Robert Ramshaw (assigned to the Overnite Organizing Campaign) and Lorene Scheer (assigned to the Apple Organizing Campaign).  Ms. Scheer, however, was terminated on May 14, 1999 because the Apple Organizing Campaign entered a new phase that did not require her continued work.[2] 

Barbara Dusina, an IBT employee who held an organizer title and had been assigned in the past to the Organizing Department, was not terminated with the other organizers on March 31, 1999.  Because Ms. Dusina had served as a trustee of Local Union 390, she had been carried on the personnel roster of the “Trustee/Legal” Department and was not on the Organizing Department roster Mr. Murphy used when reviewing the department’s personnel.  Since the initial terminations, Mr. Murphy has asssigned various organizing tasks to Ms. Dusina and, as of this date, she continues in the organizer job.  Ms. Dusina and Mr. Ramshaw gave testimony criticizing the previous administration before the House of Representatives Committee on Education and the Workforce, Subcommittee on Oversight and Investigations.

The IBT further states that Mr. Murphy decided to terminate protesters Gasman, Patrick, Hernandez and Bundrant for the reasons previously set forth and because he determined from a review of their personnel files, activity reports filed and overall work performed that these protesters were either without assignment or had not been engaged in any productive work for the past several months.  This was offered as a secondary rationale for the termination. 

On April 22, 1999, W. Lamar Mathis, Secretary-Treasurer of Local Union 769 refused to accept protester Gasman’s April 1999 dues payment because Ms. Gasman’s IBT employment had been terminated effective March 31, 1999.  Mr. Mathis rejected the dues by letter, in which he stated his understanding that the IBT had terminated Ms. Gasman’s employment and that Ms. Gasman was “not currently working in any Teamsters company or craft in the jurisdiction of Teamster Local 769 . . ..”  Mr. Mathis wrote that “[i]f the information I have mentioned concerning your employment status is not correct, please don’t hesitate to contact me.”  The letter enclosed a withdrawal card application. 

After receiving an instruction from the IBT counsel’s office, Mr. Mathis agreed, by letter dated May 6, 1999, to accept Ms. Gasman’s dues payments.  Ms. Gasman has paid dues for April and May 1999 and Mr. Mathis states that Local Union 769 has posted both payments. 

Doreen Gasman

May 25, 1999

Page 1

When asked why he had initially refused to accept Ms. Gasman’s dues, Mr. Mathis stated simply that he had learned of her termination as an Organizer (he does not recall how he learned that fact) and he concluded that the provision of the IBT Constitution that creates a six month waiting period before issuance of a withdrawal card did not apply because Ms. Gasman was not working or actively seeking work within the jurisdiction of Local Union 769.  Mr. Mathis states that he heard Ms. Gasman was working in the jurisdiction of another Florida local, Local Union 385 but that turned out to be wrong.  In any case, he learned that fact only after initially rejecting the dues payment. 

2. Discussion

1. Retaliation, Coercion and Intimidation

Article VIII, § 11 of the Rules prohibits retaliation against any “Union member, officer or employee for exercising any right guaranteed by . . . the Rules.[3]  The Election Officer will thus find a violation of the Rules where an employment decision is based upon a member’s having engaged in election-related conduct.  Eckstein, PR-135-IBT-SCE (MGC) (August 14, 1998) at 31-32, aff’d In re Sever, 98-Elec. App.-369 (KC) (September 8, 1998).  The Election Officer has always enforced this provision mindful of the fact that the Rules “must not be read so broadly as to restrict the right and responsibility of union officers to conduct their official business.[4]  Wsol at 5.  The Election Officer recognizes that the IBT’s newly-elected and installed officers should have discretion to shape their new administration.  It is not a violation “ ‘to remove a member from an appointed position if there was a basis for doing so independent of the election process.’”  In re Eckstein, PR-135-IBT-SCE at 36-37 (quoting Wsol, P-095-IBT-CHI (September 20, 1995), aff’d 95-Elec. App.-17 (KC) (October 10, 1995)).  Accordingly, even under the expanded protection of the Rules the termination of appointed officials for reasons of “personality conflicts or political rivalry” does not automatically constitute a violation of that individual’s rights.  Wsol at 8 (citing Creman, Case No. P-425-LU311 MID (March 11, 1991), aff’d, 91 – Elec. App. – 101 (SA) (March 19, 1991)).

Doreen Gasman

May 25, 1999

Page 1

The IBT Constitution gives the IBT General President discretion to appoint and remove International Representatives and Organizers.  See IBT Constitution Art. V, § 1(d) (appointment) and Art. VI, § 6 (removal).[5]  The constitution does not limit the General President’s discretion in removing an International Representative or International Organizer: 

The General President, when he deems it for the best interests of the International Union, is hereby empowered to remove any International Representative or General Organizer. 

IBT Constitution Art. VI, § 6.

The reasons advanced by the IBT for terminating the employment of the protesters formerly assigned to the Organizing Department relate to the new administration’s goal of streamlining the Organizing Department in order to work more closely and efficiently with Local Unions and Joint Councils, and the protesters’ job performance.  The protesters strongly contest the IBT’s determination of their recent levels of productivity and assert that their terminations were entirely political.  According to the protesters, the Organizers who were retained were no more active than those terminated and Ms. Dusina was less active than the protesters during the several months preceding the terminations. 

The Election Officer has concluded that the termination of the protesters does not violate the Rules.  When union jobs are used as a weapon to coerce members in the exercise of their right to campaign, support, or vote for a particular candidate that violates the Rules.  Whether that type of improper coercion has occurred in a particular case can be determined only from examining the particular facts and circumstances.  Here, the facts do not support a finding of coercion for four separate, but related, reasons.  First, the IBT has provided a reason independent of the election – an administrative reorganization – as the basis for these terminations.  Second, the terminations were made post-election, after a change in administration, when one of the policy issues in the election concerned the deployment of International Organizers from IBT headquarters.  Third, there is no indication that the removals were tied to election activity (e.g. campaigning, solicitations of support, or voting).  At most, the new administration was aware of the protesters’ well-known and admitted opposition to its new policies and took that into account.  Fourth, under the IBT Constitution, General Organizers are representatives of the General President’s policy positions.  The General President is entitled to fill the organizer job with individuals who he believes will effectively carry his policy message to the membership. 

Doreen Gasman

May 25, 1999

Page 1

The decision to restructure the Organizing Department reflects a philosophical difference between the previous administration and the current administration.  It does not reflect animus or retaliation by the new administration against any of the members or other employees who formerly worked for that division.  The new administration’s desire to configure the Union consistent with its political platform is a reason independent of the election process that can be used to support the termination of Gasman, Hernandez, Bundrant, and Patrick.  Indeed Mr. Hoffa’s policy position with respect to the Organizing Department has been well known since early in the campaign, and the implementation of that policy, as reflected by this reorganization cannot come as a surprise to the members of that department.  See In re Hoffa,

P-812-IBT-NYC (BZQ) (August 16, 1996) at 4-5.  The Election Officer cannot compel the new administration to retain the departments, or protesters, in contravention of its philosophy of administration. 

That the protesters acknowledge that they have been openly critical of Mr. Hoffa and his views does not protect them against reorganization, even under the broad protection of the Rules.  The elected officials of the IBT are not barred from taking an appointed official’s known views on union politics into account when deciding if that official should continue in a job.  In Wsol, IBT General President Ron Carey removed Frank Wsol from the position of chairman of the Motor Carrier Labor Advisory Council.  Mr. Wsol had held that appointed position for 15 years.  Mr. Wsol alleged that Mr. Carey had removed him in retaliation for having decided to run for election on a slate opposed to Mr. Carey.  The Election Officer found no Rules violations: 

Mr. Wsol was dismissed from an appointed policy-making position in which he served at the pleasure of the General President.  Further, the evidence fails to show that Mr. Carey was motivated by a desire to retaliate against Mr. Wsol for running for office.  Instead, it appears that Mr. Carey was motivated by Mr. Wsol’s consistent public opposition to the policies of the Carey administration.  Since “[r]emoval from an appointed union position because of . . . political rivalry is not prohibited,”  Cremen; DelGallo, the IBT did not violate the Rules in removing the protester from his appointed position as chair of MCLAC.

Wsol, at 8.  The Rules protect IBT member-employees from retaliation for engaging in campaigning and other election-related activity.  The Rules do not protect a member-employee’s job tenure against a change in administration. 

Doreen Gasman

May 25, 1999

Page 1

The nature of the General Organizer’s job also weighs in favor of denying the protests here.  The IBT Constitution confers broad discretion on the General President to appoint General Organizers (IBT Constitution Art. V, § 1(d)) and broad discretion to remove them (id. at Art. VI, § 6).  That the protesters have been, and are, politically opposed to the newly-elected and installed officers provides the new administration with some basis to believe that both the existing structure of the organizing department and its personnel were not compatible with the new administration’s philosophy.  The IBT Constitution envisions General Organizers as representing the General President’s policies to the rank and file, and the new General President is entitled to fill the position with those who he believes will represent him effectively.  As in Wsol, the Rules do not protect organizers, who serve at the pleasure of the General President, against removal because of their political opposition. 

The Election Officer makes no findings concerning the IBT’s and the protesters’ conflicting assertions about the amount or quality of the protesters’ work.  The policy rationales, summarized above provide a basis independent of the election to support the protesters’ terminations from their International appointments regardless of their individual job performance. 

The Election Officer is not holding that every job action involving a discretionary appointment is immune from scrutiny under the Rules.  Removal in furtherance of a policy objective, however, is different from taking a job action on account of a member’s participation (or failure to participate) in campaigning or other election-related activity. If these terminations and the restructuring of the Organizing Department had occurred while the union-wide election was going on and the facts showed an election-related political motive, the Election Officer could find retaliation and fashion a remedy.  See Eckstein, PR-135-IBT-SCE.  As the Election Officer recently stated:

The Election Officer will afford the new administration more latitude now as it starts work and seeks to control IBT policy than the administration would or should have when the International officer election process is underway.  Conduct that may pass muster in this immediate post-election context could very well be a Rules violation if it happened in the midst of a union-wide election.  When a new administration starts, terminations and appointments may fairly be found to reflect policy choices: when an established administration in the midst of an election takes a job action, the conduct must be scrutinized strictly to determine whether it is being done to coerce members in the exercise of their political rights.

Garrett, SR-03-IBT-EOH (May 20, 1999) at 5.

The pendancy of a Southern Region Rerun election does not change this analysis.  The new administration did not restrict the terminations to organizers from the Southern Region and there is no evidence that the election was targeted by this action.  Practically all of the organizers from all regions of the country were terminated on March 31, 1999, when the Southern Region Rerun Election plan had not yet been approved. 

2. Interference with Voting and Campaigning By The IBT

Doreen Gasman

May 25, 1999

Page 1

The protesters all further allege that the termination of their employment has deprived them of the right to vote and/or support the candidate of their choice in the upcoming Southern Rerun Election.  Art VIII, § 11 of the Rules guarantees every member’s right “to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.”

As an initial matter, the protester’s terminations do not deprive them of the right to vote in the upcoming Southern Region Rerun Election.  An IBT member is eligible to vote in an election provided “his/her dues [are] paid up through the month prior to the month in which the election is held.”  Rules Art. VI, § 1.  Whether a member is employed by the union does not affect eligibility. 

Nor do protesters’ terminations impede their ability to support the candidates of their choice.  Among the arguments advanced by protesters on this issue are: (i) their access to members in the Southern Region is adversely affected by their terminations, (ii) the stigma and loss of status resulting from their termination lessens their effectiveness as campaigners, and (iii) protesters’ loss of income prevents them from contributing financially to candidates.  These arguments misconstrue the rights members have under Art VII, § 11.  All members are prohibited from campaigning during working hours, but have the right to campaign incidental to work.  Rules, Art VII, § 11(a).  While members who work for the IBT may enjoy greater exposure to the membership and have greater status by virtue of their positions, which they believe increases their effectiveness as campaigners, the Rules do not protect anyone’s job status alone.  Loss of the perquisites of a Union job, by itself, does not give rise to a Rules violation.

3. Interference with Voting and Campaigning By W. Lamar Mathis

As noted above, a member’s eligibility to vote under the Rules turns on current dues payment.  See Rules Art. VI, § 1.  When members become unemployed in the craft in the jurisdiction of their local union, they may continue as active members for a period of six months so long as they are actively seeking employment in the jurisdiction of their local union.  IBT Const., Art XVIII, § 6(a).  A member does not lose the right to maintain good standing, and pay dues, the day that the member becomes unemployed.  IBT Const., Art. II, § 4(a)(1). 

By refusing to accept Doreen Gasman’s dues payment in the first month after the termination of her employment, W. Lamar Mathis attempted to interfere with Ms. Gasman’s right to vote.  That clearly violated the Rules.  See Rules, Art V, § 12.  Mr. Mathis corrected his error under instructions from the IBT legal department when, on May 6, 1999, he wrote to Ms. Gasman stating that Local Union 726 would accept her dues payments. 

Although the violation has been resolved, the initial interference with Ms. Gasman’s right to vote is a serious offense.  A remedy is set forth at the end of this ruling.

For all the foregoing reasons the protests of members Hernandez, Bundrant and Patrick are DENIED and the protest of member Gasman is GRANTED IN PART and DENIED IN PART.

Doreen Gasman

May 25, 1999

Page 1

3. Remedy

1.  Mr. Mathis shall immediately cease and desist from interfering with the right of Ms. Gasman, or of any other IBT member, to vote in the Southern Region Rerun Election. 

2.  By May 27, 1999, Mr. Mathis shall have the attached “Notice to Local Union 769 Members and Employees” posted at the local union office.

3.  Mr. Mathis must submit an affidavit to the Election Office, on or before May 28, 1999, attesting to his compliance with this order. 

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 100

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

Enclosure

cc:              Kenneth Conboy, Election Appeals Master

              NOTICE TO LOCAL UNION 769 MEMBERS

The Election Officer has found that I interfered with member Doreen Gasman’s right to vote in the Southern Region Rerun in violation of the Election Rules by improperly rejecting her dues payment.  Local 769 has now accepted and posted the dues payments made by Sister Gasman. 

All local union Members have the right to vote without interference from any other person.

In the future I will not interfere with any member’s right to vote.

____________________                            ______________________________

Date                                                                                    W. Lamar Mathis, President

Local Union 769

This is an official notice, which must remain posted until June 11, 1999.  This notice must not be defaced or altered in any manner or be covered with any other material.

Approved by Michael G. Cherkasky, IBT Election Officer.