May 20, 1999
VIA FACSIMILE
John Wayne Garrett
May 20, 1999
Page 1
Donald S. Scott, President
Teamsters Local Union 728
2540 Lakewood Avenue, SW
Atlanta, GA 30315
John Fisher, President
Teamsters Local Union 600
9041 Riverview Drive
Tucker, GA 30084
Barbara Harvey, Esq.
645 Griswold, Suite 1800
Detroit, MI 48226
Rick Glasebrook, President
Teamsters Local Union 657
8214 Roughrider
San Antonio, TX XXX-XX-XXXX
Doug Mims
1645 Brantford Drive
Tucker, GA 30084
Hoffa Unity Slate
c/o Bradley T. Raymond, Esq
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
John Wayne Garrett
May 20, 1999
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John Wayne Garrett
May 20, 1999
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VIA UPS OVERNIGHT
John Wayne Garrett
6052 Lyndale Street
Douglasville, GA 30135
Thomas R. Salinas
7023 Crested Quail
San Antonio, TX 78250
H. R. Thompson
8911 Anchor Drive
St. Louis, MO 63123
BY HAND
James P. Hoffa, General President
International Brotherhood of Teamsters
25 Louisiana Avenue
Washington, DC 20001
Patrick J. Szymanski, Esq., General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue
Washington, DC 20001
Paul Alan Levy, Esq.
Public Citizen Litigation Group
1600 20th Street NW
Washington, DC 20009
John Wayne Garrett
May 20, 1999
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John Wayne Garrett
May 20, 1999
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Re: Election Officer Case Nos. SR-03-IBT-EOH
SR-04-IBT-EOH
SR-06-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:
John Wayne Garrett (SR-03), a member of IBT Local Union 728 and formerly an IBT International Representative;
Thomas R. Salinas (SR-04), a member of IBT Local Union 657 and formerly an IBT International Representative;
H.R. Thompson (SR-06), a member of IBT Local Union 600 and formerly an IBT International Representative.
Each of these three individuals was, until recently, employed by the IBT and alleges that the new Hoffa Administration terminated them as International Representatives 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, but rather for legitimate policy reasons.
The protests were investigated by Election Office Associate General Counsel Geoffrey Millsom.
- 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:
John Wayne Garrett
May 20, 1999
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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.
As part of the new administration’s restructuring efforts, the IBT eliminated the “Field Services Division,” a department first created by the previous administration. The dismantling of the Field Services Division resulted in the termination of all 29 employees within that division, including protesters Thompson and Salinas. According to the IBT, the Field Services Department was eliminated because, in the new administration’s view it had not accomplished its stated purpose – to provide support for organizing drives and contract campaigns – and instead had become a vehicle for the International union to interfere in Local Union affairs. The IBT states that the new administration plans to conduct organizing drives and contract campaigns differently by using members, officers and agents from Local Unions and Joint Councils from the geographical area of the campaign targets. The new administration believes this approach will build cooperation among all administrative levels of the Union and will save the travel and lodging expenses that were formerly incurred by International Representatives assigned to such campaigns.
The first protester, John Wayne Garrett, was terminated from his position as an International Representative assigned to the Tankhaul Division. The IBT claims that, prior to his termination, Mr. Garrett and Doug Mims were the only salaried employees of the Tankhaul Division. (Mr. Mims received a supplement to his General Executive Board salary as a result of his position with the Tankhaul Division). According to the IBT, the Tankhaul Division was restructured in order to more effectively allocate the IBT’s limited financial resources and to bring the Division into alignment with the new administration’s philosophy of working through local unions and joint counsels to the maximum extent possible. Specifically, the IBT contends that it hired a new full-time director, Keith Gleason, who terminated Mr. Garrett and hired four part-time regional employees. The IBT contends that the money formerly spent on Mr. Garrett’s salary will be more efficiently used to pay four members in different parts of the country to perform the same tasks.
- Discussion
- Retaliation, Coercion and Intimidation
John Wayne Garrett
May 20, 1999
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Article VIII, § 11 of the Rules prohibits retaliation against any “Union member, officer or employee for exercising any right guaranteed by . . . the Rules.[1] 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.[2] 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)).
The IBT Constitution gives the IBT General President discretion to appoint and remove International Representatives. The constitution does not limit the General President’s discretion in removing an International Representative:
The General President, when he deems it for the best interests of the International Union, is hereby empowered to remove any International Representative . . ..
IBT Constitution Art. VI, § 6.
- H. R. Thompson and Thomas R. Salinas
John Wayne Garrett
May 20, 1999
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The IBT has offered reasons independent of the election process to support the termination of Mr. Thompson and Mr. Salinas. First, the decision to eliminate the Field Services Division 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 that formerly worked for that division. Indeed, the fact that all 29 employees of Field Services Division were terminated shows that the new administration aimed at organizational restructuring, not at specific individuals. 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 Messrs. Thompson and Salinas.
In addition, the Election Officer notes that the IBT Constitution provides a reason independent of the election process that can be used to support the terminations here. When a new administration takes office, employees that serve at the pleasure of those elected can reasonably expect their jobs to be at risk. See Finnegan, 456 U.S. at 441. If these terminations and the elimination of the Field Services Division had occurred while the union-wide election was going on and the facts showed a political motive, the Election Officer could find retaliation and fashion a remedy. See Eckstein, PR-135-IBT-SCE. The IBT is now operating post-election and, with the exception of the Southern Region, is not caught up in union-wide campaigning. 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.
The Election Officer notes that the existence and operation of Field Services was an issue in the campaign, and that the IBT membership elected as General President the candidate who had argued for the elimination of that division. With the major part of the election just completed, the Election Officer will not apply the Rules in a way that unduly constricts the new General President from exercising the discretionary authority to remove International Representatives, which the IBT Constitution vests in his office.
- John Wayne Garrett
The IBT’s stated purpose for restructuring of the Tankhaul Division and terminating Mr. Garrett was to improve the efficiency of the department. This is a valid basis independent of rights protected by the Rules. In addition, Mr. Garrett was an International Representative subject to the IBT General President’s discretionary power of removal. Accordingly, the Election Officer finds that reasons independent of the election process exist to support the IBT’s termination of Mr. Garrett at this time.
John Wayne Garrett
May 20, 1999
Page 1
- Interference with Voting and Campaigning By The IBT
Protesters Salinas and Thompson further allege that the termination of their employment as International Representatives 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(a) 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) that 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.
For all the foregoing reasons the protests are 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 100
New York, NY 10022
Fax: (212) 751-4864
John Wayne Garrett
May 20, 1999
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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]The Election Officer does not exercise jurisdiction over, or consider any other legal claims the protesters may have relating to their jobs.
[2]In Finnegan v. Leu, 456 U.S. 431, 441 (1982), the Supreme Court held that elected union officials could terminate subordinates who were politically opposed to the elected leadership. The Court reasoned that “the ability of an elected union official to select his own administrators is an integral part of ensuring a union administration’s responsiveness to the mandate of the union election.” Id. The Rules vest IBT members with rights greater than those bestowed upon them by the LMRDA. See Wsol, P-095-IBT-CHI (BZQ) (September 20, 1995), aff’d, 95 – Elec. App. – 17 (KC) (October 10, 1995). While the Election Officer is not limited by Finnegan, the Election Officer will not apply the Rules in a way that interferes with the legitimate policy choices of the IBT election officials.