Cobey, 2022 ESD 185
OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: CONOR COBEY, ) Protest Decision 2022 ESD 185
) Issued: April 5, 2022
Protestor. ) OES Case No. P-147-052621-FW
____________________________________)
Conor Cobey, member of Local Union 439, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that the local union administration stripped him of steward responsibilities in retaliation for activity protected by the Rules. This alleged retaliation is said to have violated Article VII, Section 12(g) of the Rules.
Election Supervisor representatives Deborah Schaaf and Jeffrey Ellison investigated this protest.
Findings of Fact
Cobey, employed at the UPS facility in Stockton CA for several years, was made shop steward in approximately 2016. In about 2018, he ran unopposed for election as chief steward at the facility.
Although stewards at the UPS facility have been elected for many years, such elections are neither required nor authorized by local union bylaws. Instead, bylaws specify that “[t]he Secretary/Treasurer in conjunction with the President shall appoint all Shop Stewards.” Section 13(A)(2). The same provision states that the local union shall pay the monthly dues of members selected as stewards. Cobey’s dues were paid by the local union commencing with his service as steward and continuing with his elevation to chief steward.
In addition to being chief steward at UPS Stockton, Cobey was a trustee and executive board member of the local union. The local union held its officers election late in 2020, and a slate of incumbent officers, including Cobey, ran to retain their positions. Cobey and the other members of his slate lost the election to a slate headed by Sal Lomeli. The Lomeli administration took office in January 2021, displacing the previous executive board, Cobey included. The new administration did not remove Cobey from his position as chief steward at UPS Stockton, however. Instead, it appointed 2 shop stewards to service the same craft Cobey represented there. Although Cobey continued as chief steward, he stated that Pablo Cordova, the business agent assigned by the new administration to service the worksite, had little contact with him and did not inform him of dates that grievances would be reviewed with management or invite him to attend.
On February 17, 2021, Cobey was nominated for local union delegate to the IBT convention. Cobey was part of a slate that ran against a slate headed by Lomeli. During the campaign period for the delegates and alternate delegates election, Cobey campaigned for his slate and against Lomeli’s; he also filed 2 pre-election protests. One was granted, the other denied. Cobey, 2021 ESD 78 (March 12, 2021); Cobey, 2021 ESD 107 (April 15, 2021). Ballots in the election were tallied April 15, 2021. Lomeli’s slate won all positions. Cobey and 2 other members of his slate polled the fewest votes cast for delegate.
On May 5, 2021, some 3 weeks after ballots were tallied in the delegates election, Cobey asserted that Lomeli and business agent Cordova met with the UPS manager at Stockton and informed him that Cobey was not to be included in investigative or disciplinary meetings or grievance reviews at any level. Cobey was not present at the purported meeting. He asserted that he learned of Lomeli’s instruction to UPS from the UPS manager, not from the local union leadership. Cobey stated that upon learning this information, he phoned Lomeli to inquire about his status as chief steward and that of the newly appointed stewards. According to Cobey, Lomeli explained, “We’re going in a different direction.” Cobey stated that he challenged Lomeli that the only possible rationale for the change in duties was retaliation for running on the opposing slate. Lomeli rejected this statement. According to Cobey, Lomeli replied, “The politics is over.” He repeated, “We’re just going in a different direction.” Cobey rejoined that he was uncomfortable having the local union pay his union dues as steward if he would not be allowed to serve as steward. According to Cobey, Lomeli replied, “We’re not removing you. You can still file grievances.” (Cobey noted during the investigation that any member can file grievances.)
On May 26, 2021, 3 weeks after the phone conversation with Lomeli, Cobey filed a protest with the IBT over what he regarded as his diminished status as chief steward. On May 28, 2021, Cobey forwarded his communication to the IBT to us and asked that we treat it as a protest under the Rules. The protest asserted that the local union administration saw Cobey as a political opponent and retaliated against him for opposing them in the officers and delegates elections first by creating steward positions when they were not needed, then by appointing personal allies to the new vacancies rather than conducting an election, and finally by “pushing me out of my role” as chief steward.
Because the protest asserted retaliation in the first instance due to Cobey’s candidacy in the local union officers election, we deferred processing it until the IBT completed its investigation. Local union officers elections are outside the jurisdiction of the Election Supervisor, who is responsible solely for supervising the International officers election and the elections of delegates to the IBT convention, where candidates for International office are nominated.
The IBT investigated Cobey’s protest. The local union denied retaliation, asserting instead that, by appointing 2 new stewards at UPS Stockton, it was pursuing a different approach in representing the rank-and-file than the one to which Cobey was accustomed.
After Cobey filed the protest with the IBT, an incident occurred where local union leadership met on several grievances at UPS Stockton. The union contingent was led that day, June 19, 2021, by local union president Kenny Gonzalez, business agent Pablo Cordova, and a package shop steward. Consistent with his treatment dating to the change in local union administrations that occurred in January 2021, Cobey was not instructed or invited to attend. Nonetheless, according to Gonzalez, Cobey interrupted the meeting and, apparently reacting to his exclusion, demanded to know from Gonzalez if the union was going “to keep paying my dues for nothing.” Gonzalez replied, “We are in the middle of a meeting. We can talk about this later.” According to Gonzalez, Cobey responded with “derogatory remarks towards Pablo and me, then slammed the door when he walked out.” In Gonzalez’s view, Cobey’s behavior, in front of management representatives, undermined what the local union was attempting to accomplish at the meeting, and it was not in the best interests of the local union to have Cobey continue to represent the union.
Cobey denied that he misbehaved. He claimed the right to attend the meeting, citing that it occurred “in the employee break room, which every employee has a right to use,” and further that it was a local grievance review, which he should have been permitted to attend as chief steward. According to Cobey, “I entered the room and asked simply if I would be allowed to attend the review. I was told no. I then asked if the union would continue to pay my union dues despite not allowing me to perform my duties as a shop steward. I was not given an answer, I told them to keep up the great work and I turned around and left.”
Principal officer Lomeli, responding to Cobey’s complaint to the IBT, expressed that Cobey was improperly combative with Lomeli when questioning the new administration’s decisions to appoint additional stewards and to circumscribe Cobey’s authority as steward. Lomeli noted that Cobey displayed this attitude not only in private. Referencing the June 19, 2021 interruption of the grievance review meeting, Lomeli stated that Cobey “airs this confrontational posture and attitude” in front of management as well as the rank-and-file membership. Lomeli told the IBT that it was not Cobey’s prerogative to “conduct and control the business and affairs” of the local union, quoting the bylaws. Rather, that responsibility belonged to Lomeli and the other elected leadership. Because Cobey declared he “was not comfortable having my union dues paid as a shop steward if I wouldn’t be allowed to do that job,” Lomeli, in consultation with the local union president, decided on June 28, 2021 to grant Cobey’s “request to vacate his position as shop steward.”
On these facts, the IBT closed its investigation, informing Cobey that it found insufficient evidence to conclude that he was retaliated against for his protected political activity. The IBT noted that Cobey was continued as shop steward until after the June 19 meeting, where he behaved disrespectfully and disruptively. That behavior, rather than previous activity as candidate and campaigner, caused local union leadership to determine that continuing him as steward was not in the interest of the union.
Analysis
We review this matter under Article VII, Section 12(g), which provide as follows:
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.
The Rules’ prohibition on retaliation is based on the right all members enjoy “to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.” Article VII, Section 12 (a). Campaign activity is “a personal right of members, and the exercise of that right cannot be interfered with by labor organizations or employers, including the IBT [or a local union] as an employer. Pope, 2000 EAD 39 (October 17, 2000), aff’d in relevant part, 2000 EAM 11 (November 14, 2000). History of the Rules shows that the protection against retaliation did not appear explicitly in the 1991 election, the first under the Consent Order. Nonetheless, the Election Officer there found “implicit” in the right to participate in campaign activity “the right to remain free from adverse action” by the union in retaliation for support given to any International Union officer candidate. DelGallo, P-1042-LU294-PGH (November 14, 1991). The provision explicitly barring retaliation now found in Article VII, Section 12(g) was added to the Rules for the 1996 election cycle.
Federal labor law, the LMRDA, generally protects union members – as members – from retaliation for engaging in speech. However, the statute does not restrict a union officer from removing appointed officials from office for political reasons. Finnegan v. Leu, 456 U.S. 431 (1982). See also Brunt v. Service Employees International Union, 284 F.3d 715 (7th Cir. 2002); Franza v. Teamsters Local 671, 869 F.2d 41 (2d Cir. 1989); Cotler v. Owens, 753 F.2d 223 (2d Cir. 1985); Cehaich v. UAW, 710 F.2d 234 (6th Cir. 1983); Tucker v. Bieber, 131 LRRM 2979 (E.D. Mich. 1989). The application of Finnegan and its progeny requires examination of the union’s governing document, its constitution or bylaws. If that document grants the appointing officer discretionary authority to appoint or remove subordinate officials, Finnegan holds such exercise not to violate the LMRDA, even if done for political reasons, provided the appointee is not deprived of membership rights.
In contrast to the LMRDA, Election Appeals Master Conboy has instructed that “the Election Rules are broader than federal labor law and prohibit any retaliation relating to the exercise of members’ rights under the Rules, including the right to run for union office.” Wsol, 95 EAM 17 (October 10, 1995), affirming Wsol, P-095-IBT-CHI (September 20, 1995). Judge Conboy’s opinion rested on decisions of the Election Officer and Independent Administrator from the 1991 election. Thus, in Parisi, P-1095-LU294-PGH (December 2, 1991), the Election Officer observed that, “[n]ormally, an appointed labor organization official may be removed at will, even if the only basis for removal is the desire of the appointing officer to have ‘his own people’ around him,” citing Finnegan. However, the Election Officer and Independent Administrator held in the 1991 cycle that removal of even an appointed IBT member from his position with the union based on that member’s activities with respect to the 1991 IBT International Union officer election violated the Rules. As applied to protestor Parisi, his “removal as the appointed Sergeant-at-Arms would violate the Rules if his removal was based upon his activities on behalf of nominated IBT General President candidate Ron Carey.” See also Cremen, P-425-LU311-MID (March 11, 1991), aff’d, 91 Elec App 101 (March 19, 1991) (removal from steward position would violate Rules if motivated by delegate candidacy); DelGallo, supra (removal from sergeant-at-arms position would violate Rules if motivated by Rules-protected activity).
Retaliation prohibited by the Rules was found in Phelan, P-711-LU550-NYC (April 24, 1996), aff’d, 96 EAM 184 (May 6, 1996), where an appointed steward was removed from his position because of his candidacy for alternate steward in support of the Carey slate. The candidacy was characterized by the responsible union official as “embarrassing” to the local union leadership and a “conflict of interest” with the rest of the shop committee’s support for the opposing slate. The Election Officer held that, “[w]hile substantive labor law generally permits labor union officials to remove appointees for political reasons, the Rules do not, if such action is based on a member’s exercise of rights under the Rules,” citing Wsol, Parisi, and Cremen. Judge Conboy affirmed, declaring that the protestor’s “right to participate in the election process is protected by the Rules and cannot be the basis for any action against him.” The union official’s statements when removing the protestor “had an overt election component and a clear coercive purpose. They were therefore improper.”
In Hoffa, P-812-IBT-NYC (August 16, 1996), the IBT was found to have engaged in prohibited retaliation by refusing to hire a qualified person as full-time organizer, where the stated reason was that “some people think you’re a Hoffa person.” The Election Officer held that union officials may base employment decisions on “personality conflicts or political rivalry” but may not permissibly retaliate against a member seeking union employment because the member engaged in conduct protected by the Rules. The hiring official “had no legitimate reason to link [the applicant’s] chance at getting full-time employment with [his] electoral preference.” Doing so constituted prohibited retaliation.
In Bundrant, 2005 ESD 19 (October 25, 2005), aff’d, 05 EAM 4 (November 15, 2005), the IBT’s action in transferring hundreds of members out of a local union constituted prohibited retaliation, where the reason for the transfers was the local union principal officer’s candidacy in opposition to the Hoffa slate. Judge Conboy affirmed, holding that “the adverse action taken against [the principal officer] and his Local was in retaliation for that candidacy.”
Ending appointed positions because of mere political opposition does not necessarily constitute prohibited retaliation, however. In Wsol, supra, the IBT General President’s decision to remove a local union principal officer from an appointed position as chair of the Motor Carrier Labor Advisory Council was held not to violate the Rules. Noting that the retaliation prohibition of the Rules “does not prohibit retaliation for exercise of any use of free speech, but only for the exercise of rights guaranteed under the Rules,” the Election Officer found that Wsol was removed because he opposed the IBT’s efforts to end area conferences, to raise dues, to create a dedicated strike fund, and other initiatives. Judge Conboy concurred that removal of an appointee because of his opposition to IBT policy positions does not violate the Rules. In affirming the Election Officer’s decision, the Election Appeals Master rejected the IBT’s position, under Finnegan, that “any member appointed … to an important policy position may be replaced at any time and for any reason” – even retaliation. He reasoned to the contrary that “the Election Rules are broader than federal labor law and prohibit retaliation relating to the exercise of members rights under the Rules.” Judge Conboy concluded that “Mr. Carey did not replace Mr. Wsol because Mr. Wsol was a candidate for union office, but rather, because Mr. Wsol opposed Mr. Carey’s policies. Such an action by Mr. Carey does not constitute retaliation in violation of the Election Rules.”
Similarly, in Virtue, 2007 ESD 403 (July 9, 2007), the Election Supervisor found no retaliation where a member who stood as a candidate in the International officer election was removed post-election from his appointed position as International Representative. Building on the Election Officer’s reasoning in Wsol, the Election Supervisor found that Virtue’s “policy disagreements” as expressed during the campaign were of similar character to those Wsol expressed concerning the Carey administration. Just as the Rules did not prohibit Carey from removing Wsol from an appointed position for political reasons, so too the Rules did not bar Hoffa from removing an appointee who argued against the union governance positions the IBT administration was pursuing. Judge Conboy affirmed, concluding that the Rules’ retaliation prohibition distinguished “between ‘improper’ retaliation and benign retaliation of the type acknowledged by the United States Supreme Court [in Finnegan] as permissible in the context of a post election democratic mandate to the victors to, in their discretion, clean house of political opponents.” Virtue, 2007 EAM 82 (October 5, 2007). Judge Conboy noted also that nothing in the record suggested impropriety or corruption in connection with the removal. Absent proof that the removal would not have occurred “but for their adversarial campaigning,” the IBT had the right under Finnegan to remove Virtue as a purely political act.
Within this framework, to establish a violation of the provision barring retaliation, “the evidence must demonstrate that 1) the alleged victim engaged in activity protected by the Rules, 2) the charged party took adverse action against the alleged victim, and 3) the protected activity was a motivating factor in the adverse action.” Bundrant, 2005 ESD 19 at 10 (October 25, 2005), aff’d, 05 EAM 4 (November 15, 2005) (quoting Cooper, 2005 ESD 8 (September 2, 2005). The Election Supervisor will not find retaliation, however, if he concludes that the union officer or entity would have taken the same action even in the absence of the protestor’s protected conduct. Gilmartin, P32 (January 5, 1996), aff’d, 95 EAM 75. See Leal, P51 (October 3, 1995), aff’d, 95 EAM 30; Wsol, P95 (September 20, 1995), aff’d, 95 EAM 17.
Cobey had the right, protected by the LMRDA and the IBT constitution, to run for local union office. He lost that election. Although his right to seek election was protected, the LMRDA and the IBT constitution did not shield him from diminished authority under or even termination from a discretionary position by the local union elected authority once the local union officers election was certified. The rationale supporting this principle, as articulated in Finnegan, is plain to see here: A shop steward is the local union’s day-to-day presence in the workplace and bears initial responsibility for enforcing the contract in accordance with instructions and policies established by the elected local union leadership. It is precisely for this reason that local union bylaws commit to the discretion of local union leadership the decision as to which member will serve in this important role.
We reject Cobey’s contention that the local union’s treatment of him after the delegates election violated the Rules. The action the new administration took to move in “a different direction” occurred immediately upon taking office, well before Cobey was nominated in the delegates election. Such action was permissible under Finnegan. The union took no further adverse action of a different or worse character (from Cobey’s perspective) after the delegates election than it had already taken. For this reason, we conclude that Cobey’s complaint centers on the union’s treatment of him arising from the local union’s officers election. Thus, while Cobey engaged in activity protected under the Rules in the delegates election, there is no basis to conclude that such protected activity was a motivating factor in the adverse action the local union took earlier, upon taking office after the officers election. Article VII, Section 12(g) does not apply to the officers election, and we therefore have no jurisdiction to address his complaint. DelGallo, supra (removal of member from appointed sergeant-at-arms position was because of his actions related to the local union officers election, over which the Election Officer has no jurisdiction); Parisi, supra (same).
Were we to entertain Cobey’s allegation that his delegate candidacy motivated the local union to continue in its action to diminish his steward responsibilities, the retaliation claim still fails. The record of Cobey’s conduct, including the undisputed fact of his statement made in front of management during the grievance meeting regarding local union payment of his dues, provided ample basis for the local union’s decision. Accordingly, we find that the local union would have taken the same adverse action here even had Cobey not run for delegate. DelGallo; Parisi; Cremen, supra (longstanding personal conflict rather than activity protected by the Rules led to appointee’s removal).
Accordingly, we DENY this protest.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i). All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Barbara Jones
Election Appeals Master
IBTappealsmaster@bracewell.com
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, all within the time prescribed above. Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Barbara Jones
2022 ESD 185
DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):
Ed Gleason, General Counsel
International Brotherhood of Teamsters
egleason@teamster.org
Patrick Szymanski
szymanskip@me.com
Will Bloom
wbloom@dsgchicago.com
Tom Geoghegan
tgeoghegan@dsgchicago.com
Rob Colone
rmcolone@hotmail.com
Barbara Harvey
blmharvey@sbcglobal.net
Fred Zuckerman
fredzuckerman@aol.com
Ken Paff
Teamsters for a Democratic Union
ken@tdu.org
Scott Jenkins
scott@oz2021.com
Conor Cobey
conorcobey@yahoo.com
Teamsters Local Union 439
Sal Lomeli
sal@teamsters439.com
Deborah Schaaf
dschaaf@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com