Brady et al, 2022 ESD 187

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

 

IN RE: COLLEEN BRADY,                      )           Protest Decision 2022 ESD 187

      LETICIA RAMIREZ ZIVALICH,      )            Issued: May 16, 2022

FELICIA WALKER,                       )           OES Case Nos. P-207-032422-NA,

ANDRE STEELE,                            )           P-208-032422-NA, P-209-032522-NA,

TREMAYNE JOHNSON,               )           P-210-032522-NA, P-211-032522-NA,

LEROY KYLES, BLANCA            )           P-212-032522-NA, P-213-032522-NA,

AGUILAR, SHAWN ELLIS,          )           P-214-032522-NA, P-215-032522-NA,

JOEL WOOD, DENNIE BEAVIN,)           P-216-032522-NA, P-217-032522-NA,

JARROD W. SKELTON,                )           P-218-032522-NA, P-219-032822-NA,

ANTHONY ROOTS, EDIBRAY    )           P-220-032822-NA, P-221-032922-NA,

RODRIGUEZ, CYNTHIA              )           P-222-032922-NA, P-223-032922-NA,

RIVERA, FRANCISCO ARZU,     )           P-224-033022-NA, P-225-033122-NA,

WALTER WESTFIELD,                 )           P-226-040222-NA, P-227-040422-NA,

PLINIO CRUZ, STEPHEN            )           P-228-040522-NA, P-229-040722-NA

HANSON, SARAH HOOK,           )

DALA WATSON, RYAN                )

JANOTA, DIANE ORNELAS,      )

FABIAN LEON, JOSE LOPEZ,    )

                                                           )

Protestors.                                         )          

____________________________________)

 

 

DECISION ON RESPONDENT IBT’S MOTION TO DISMISS

 

            Respondent IBT has moved to dismiss the protests filed here, asserting the Election Supervisor lacks jurisdiction of them, and further asserting that many of the protests were untimely filed.  For the reasons articulated below, the motion is denied.

 

            All candidates on the O’Brien-Zuckerman slate, the other respondent here, won their positions in a union-wide vote completed November 18, 2021.  The election results were certified on December 7, 2021.  Thereafter, the elected candidates assumed office on March 22, 2022.

 

            The same day the successful candidates were sworn into office, the IBT terminated the services of a number of its employees.  Notification of the terminations is said to have been initiated on March 22, 2022 by email and U.S. mail.

 

Twenty-four of those terminated, the protestors here, asserted that their terminations constituted impermissible retaliation under the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”) for activity those Rules protected.  Two of the protestors served as International auditors; one was a regional training coordinator; the remainder served in organizing, with most as field organizers.

 

 

 

 

            As its initial response to the protests, the IBT requested permission to defer the factual investigation of the protest allegations until it could file and obtain the Election Supervisor’s ruling on a motion to dismiss all of the protests.  The Election Supervisor agreed to the procedure and set a motion schedule.  Thereafter, the IBT timely filed its motion on April 22, 2022.  Counsel for the Teamster Power slate, the slate of candidates defeated in the recent election, timely filed a response to the motion on April 29, 2022.  The matter was thus submitted for decision.

 

            In its motion, the IBT asserts that the Election Supervisor lacks jurisdiction to consider election protests that 1) are filed after inauguration of a new administration and 2) arise from “conduct or events” that occur “after the date the new administration is sworn in.”  .  The IBT contended that the protests are not valid post-election protests under the Rules because the protests “fall within this two-factor category.”  The IBT asserts as a second basis for dismissing the protests that many of the protests were untimely filed.

 

            We address each aspect of the motion in turn.

 

Jurisdiction.  The Rules guarantee to all members “the right 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).  The Rules enforce this guarantee by declaring that “[r]etaliation 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.”  Article VII, Section 12(g).

 

            The LMRDA, the statute codifying certain principles concerning union governance and member rights, generally protects union members – as members – from retaliation for engaging in speech and voting.  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).  As has been noted repeatedly over the past three decades, however, “the Election Rules are broader than federal labor law and prohibit any retaliation relating to the exercise of members’ rights under the Rules.”  See, e.g., Wsol, 95 EAM 17 (October 10, 1995), affirming Wsol, P-095-IBT-CHI (September 20, 1995); see also cases collected in Cobey, 2022 ESD 185 (April 5, 2022).  The non-retaliation provision of the Rules is explicit that it protects union members not only as members, but also (relevant here) as employees.

 

            For purposes of this motion, the IBT does not challenge the precedent just cited.  Rather, it argues that the Election Supervisor’s authority does not encompass consideration of allegedly retaliatory employment decisions made after the winning candidates assume office and arising from post-inauguration events.  According to the IBT, because the actions protested here were taken after the term of the new administration had commenced, the Election Supervisor cannot consider the protests because his authority under the Rules has expired.  As the motion put it –

 

The swearing in of elected and certified officers signifies the completion of all phases of the election that the Rules are intended to regulate.  Once the election-certified victorious candidates are sworn in to their positions and assume their responsibilities there is nothing left for the Election Supervisor to supervise.  And, upon their swearing in, the newly installed administration is vested with the full IBT Constitutional responsibility, privilege and discretion to shape its policies and programs consistent with its electoral mandate and the law.  In short, the election rules do not extend beyond the swearing in of election-certified candidates to their positions.  If, as the office of the Election Supervisor has claimed, the election rules continue beyond the swearing in of the victorious, election-certified candidates, then there would not be any need to establish and implement new election rules every five-year election cycle.

 

            The response to the motion filed by the Teamster Power slate contests this point in the following terms:

 

The Rules plainly give the Election Supervisor jurisdiction over the protests.  Article XIII, Section 3 (giving the Election Supervisor jurisdiction over “post-election protests”); id. at 3(a)(3) (explicitly providing that “post-election protests” includes “improper post-election threats, coercion, intimidation, acts of violence or retaliation”); id. at (b) (explicitly providing that “any timely protest alleging improper threats, coercion, intimidation, acts of violence or retaliation for exercising any right protected by these Rules shall be considered and remedied without regard to whether the alleged violation affected the outcome of an election”).  Nothing in the Rules in anyway suggests that the authority of the Election Supervisor somehow evaporates once the elected candidates take office.  To the contrary, the provisions cited show that the authority of the Election Supervisor continues in order to allow him to remedy any retaliation that might occur.

 

            To address these competing arguments, we summarize the history of the retaliation bar under the Consent Order and the Rules.  In the 1991 election cycle, judicial pronouncement supported the notion, which the IBT argues here, that the Election Officer’s authority extended “up to and including the final election for International Officers,” and no further.  United States v. IBT, 723 F.Supp. 203, 207 (S.D.N.Y. 1989); 989 F.Supp. 468, 475 (S.D.N.Y. 1997), rev’d on other grounds, 141 F.3d 405 (2d Cir. 1998).  Indeed, the Second Circuit’s decision in United States v. IBT (Ellis), 3 F.3d 634 (2d Cir. 1993), emphasized the limit of the Election Officer’s authority.  In that case, Leroy Ellis, a candidate for International office in the 1991 election, was discharged by his employer, a freight hauler, before ballots were mailed in the election.  Ellis promptly filed an election protest against his employer, which remained pending when the election results were certified.  The Election Officer subsequently sustained the protest, finding the discharge constituted impermissible retaliation for Ellis’s candidacy.  The decision was sustained by Judge Edelstein but, as noted, reversed by the Second Circuit.  The appellate court noted that election protests may be considered “post-election protests” if not decided within 5 days but that post-election protests, under the Rules then existing, “shall only be considered and remedied if the alleged violation may have affected the outcome of the election.”  Ellis won his election, so there was no argument that his pre-election discharge negatively affected his electoral standing.  The court therefore held that, because of the limiting language declaring that only those post-election protests that may have affected the election results could be considered and remedied, which Ellis’s did not, the Election Officer was without authority to address Ellis’s protest, i.e., the Election Officer’s jurisdiction to enforce the Rules had lapsed.

 

            Article XIII, Section 3(b) of the Rules was amended for the 1996 election cycle to address the Ellis holding.  The language adopted then has been incorporated—without change—into the Rules for every IBT International Officer Election since 1996, viz.

 

Post-election protests shall only be considered and remedied if the alleged violation may have affected the outcome of the election, except that any timely protest alleging improper threats, coercion, intimidation, acts of violence or retaliation for exercising any right protected by these Rules shall be considered and remedied without regard to whether the alleged violation affected the outcome of an election.  

 

As was then the requirement, proposed Rules were presented to the Court under the Consent Order for approval.  In advocating for the amended rule concerning retaliation, the Election Officer argued that “[a] central objective of the Consent Order is the encouragement of membership participation in the election.  Such participation must be protected from retaliation if it is to be encouraged. … Leaving unremedied retaliation for exercising rights ostensibly guaranteed by election rules undermines the Consent Order.  This is no less true where retaliation does not affect the outcome of a particular election.”

 

No party, including the IBT, objected to the proposed Rules amendment.  The Court, Edelstein J., considered and approved the amendment with respect to post-election retaliation protests, writing the following:

 

The 1991 election rules provided that postelection protests would be considered and remedied only if the alleged violation of the election rules might have affected the outcome of an election. In United States v. International Bhd. of Teamsters ("Ellis"), 3 F.3d 634 (2d Cir. 1993), the Second Circuit held that the 1991 Election Officer lacked authority under the 1991 election rules to redress the discharge from employment of an IBT member who was fired for engaging in activity protected by the election rules. The Court ruled that the Election Officer lacked such authority under the 1991 IBT election rules because the discharge from employment of the IBT member did not affect the outcome of an election. The Election Officer argues that the rule should be modified in order to empower the Election Officer to protect the IBT membership from any form of retaliation for the exercise of rights protected by the election rules, regardless of whether the retaliatory conduct may have affected the outcome of an election.

As noted above, no objections have been filed with regard to any of the proposed modifications to the 1991 election rules discussed in this section. Moreover, the Court finds that these proposed modifications reflect the many lessons learned from the 1991 IBT election and represent sensible changes and adjustments to the 1991 election rules.

United States v. IBT (1996 Election Rules), 896 F.Supp. 1349, 1360-61 (S.D.N.Y. 1995).

 

The amendment to Article XIII, Section 3(b) extended the jurisdiction of the Election Officer (and in subsequent election cycles, the Election Administrator and then Election Supervisor) to the category of protests that the Ellis decision barred consideration of – an alleged act of retaliation occurring pre-election that was remedied post-election.  The appellate court’s decision construed the Election Officer’s authority over protests as limited to those that may have affected the outcome of the election, and also as terminated by certification of the results.  When a Rules amendment removed those limitations with respect to retaliation protests, the Ellis decision no longer controlled.  The amended rule was carried forward without change in Court-approved rules adopted under the Consent Order in 2000, 2005, and 2010, and in 2015 and 2020 under the Final Order.

 

In addition to cases of retaliation that arose pre-election, however, the language of the amendment extends Election Officer jurisdiction to all protests alleging retaliation, including those where the alleged act of retaliation occurred post-election, post-certification, and post-inauguration.  In short, the temporal limit of the Election Officer’s authority that existed in the 1991 election cycle – “up to and including the final election for International Officers” – was removed altogether, but solely with respect to protests alleging retaliation.  All other protests filed or considered post-election could be considered and remedied only where the subject matter of the protest may have affected the outcome of the election.

 

            Examples of the application of the amended rule following Ellis include Virtue & Ramos, 2007 ESD 403 (July 9, 2007), aff’d, 2007 EAM 82 (July 27, 2007 and October 5, 2007).  In this case, Virtue and Ramos, both International representatives, were dismissed from their positions with the IBT after the results in the 2006 International officer election were certified but before the election winners were sworn in to their new terms.  Both protestors alleged retaliation for Rules-protected activity, Virtue as a candidate for International office, Ramos as a supporter of Virtue.  Virtue lost his election to candidates on the Hoffa 2006 slate, and Hoffa dismissed him and Ramos during the period between certification of the election results and the Hoffa slate’s inauguration for a new term.  The IBT contended in that case that the Election Supervisor had no authority to consider the post-election and post-certification protest.  It argued that the amended rule applied only to an Ellis situation – a retaliation protest filed pre-election but not resolved until after certification – and because Virtue and Ramos were terminated post-election, the Election Supervisor could not consider the resulting protests.  The Election Supervisor rejected this contention as follows:

 

Section 3(b) extends the Election Supervisor's authority beyond the point of certification.  The provision's language permits us to consider and remedy “any protest” alleging “retaliation for exercising any right” the Rules protect.  The exception is broadly stated and is not limited, as the IBT asserts, to acts of alleged retaliation that occurred before certification of the election results.

 

Virtue & Ramos, 2007 ESD 403 at 4. 

 

            In other retaliation cases arising following the amendment adopted in the 1996 Rules, the Election Officer decided protests where the alleged retaliatory action occurred after the winners of the election took office.  Thus, in Gasman, SR-02-IBT-EOH et al, (May 25, 1999), the Election Officer considered and denied on the merits a protest alleging that the elimination by the newly installed Hoffa administration of the Field Service Department and creation of the Organizing Department, with consequent loss of jobs, constituted impermissible retaliation.  No challenge was made to the Election Officer’s jurisdiction in that case to consider protests of union action taken post-inauguration.  Further, in Sherman, SR-12-IBT-EOH (May 20, 1999), the Election Officer considered and denied on the merits a protest filed by the confidential secretary of the General President, who alleged that her dismissal from that position by the newly installed Hoffa administration constituted retaliation prohibited by the Rules.[1]  Again, no challenge was made to the Election Officer’s jurisdiction to consider the protest.  Finally, the decision in Pope, 2000 EAD 39 (October 17, 2000), aff’d in part, rev’d in part, 2000 EAM 11 (November 14, 2000), also weighs against the IBT’s position here with respect to jurisdiction.  The protest in Pope, filed as a “reach-back” protest at the commencement of the 2000-2001 election cycle, challenged a local union’s November 1999 discharge of business agent Doug Mims, contending that the dismissal constituted retaliation for Mims’s candidacy for South region International vice president in 1996, 1998, and 1999.  The Election Administrator denied the protest on its merits and noted the following with respect to the past protected activity:

 

We cannot find a Rules violation based solely on the claim of Pope (or Mims) that Local 728 terminated Mims in retaliation for his candidacy for International office in 1998 and 1999.  Those elections were governed by prior election rules, and violations of those rules were within the jurisdiction of a prior election officer.  Yet, neither Pope nor Mims filed a protest challenging his November 1999 discharge under those prior rules.  The current Rules, on the other hand, regulate conduct with respect to the 2000-2001 International Officer and Delegate elections, and Article I of those Rules makes it plain that the jurisdiction of the Election Administrator is limited to supervision of that election, and not prior elections.

 

(Italics emphasis supplied.)[2]

 

            In sum, protest decisions issued after the Rules were amended in 1995 have affirmed the Election Supervisor’s authority to address a claim that a member suffered retaliation as the result of activity protected by the Rules, regardless of whether the claimed adverse employment action was taken pre-election, post-election, post-certification, or post-inauguration.  Article I of the Rules requires the Election Supervisor to “consider and apply” precedents and decisions from previous election cycles.   See also Final Order, ¶ 20 (after Transition Period, “ the GEB shall promulgate Election Rules for succeeding election cycles which are substantially the same as those which governed the previous IBT elections . . .”).

 

            For the foregoing reasons, we deny the IBT’s motion to dismiss the instant protests for want of jurisdiction, finding to the contrary that we have jurisdiction to consider these protests.

 

            In reaching this conclusion, we also note the IBT’s ancillary argument, couched as a motion to dismiss, that “the Election Supervisor should be very wary of interfering with the International Union's governance considerations and associated personnel decisions” for reasons articulated by the U.S. Supreme Court in Finnegan v. Leu, supra, and in Virtue & Ramos, supra.  This argument is not one of jurisdiction.  Rather, it argues that the protests should be summarily dismissed on a theory that the precedents just cited shield the IBT’s post-inauguration personnel decisions from scrutiny by the Election Supervisor.  No such immunity exists that would permit a summary dismissal.  As we repeated most recently in Cobey, “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.’  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.”  (Citations omitted).  As is patent, this analysis requires investigation of the facts underlying the protests to assess the claims of the protestors and defenses of the union employer.  It is not an analysis that can be carried out summarily.

 

            We dispose of the IBT’s final argument pertaining to jurisdiction briefly.  It asserts that “[i]f, as the office of the Election Supervisor has claimed, the election rules continue beyond the swearing in of the victorious, election-certified candidates, then there would not be any need to establish and implement new election rules every five-year election cycle.”  This statement mischaracterizes the claims made here.  Each protestor asserts that they suffered adverse employment action because of their protected activity during the 2020-2021 election cycle.  The Rules authorize the Election Supervisor to consider and decide whether a nexus exists between each of the decisions to end a protestor’s employment and protected activity by that protestor.  To the IBT’s point, future iterations of the Rules, adopted in accord with the IBT Constitution and the Final Order and enforced by an Election Supervisor, will govern future elections of International officers.  For the reasons noted in Pope, supra, a future Election Supervisor will have no authority to remedy past retaliation that is motivated solely to punish the protestor for past activity and not to chill the protestor’s participation in the future election.  For this reason, the 2020-2021 Election Supervisor alone has authority to determine whether the 2020-2021 Rules were violated in the instant cases.

 

Timeliness.  Under Article XIII, Section 3(a)(3), protests must be filed “within two (2) working days of the date when the protestor becomes aware or reasonably should have become aware of the action protested, when involving alleged improper post-election threats, coercion, intimidation, acts of violence or retaliation or the exercise of rights protected by these Rules.” 

 

The alleged retaliatory actions were taken March 22, 2022.  If a protestor learned of the action the same day it was taken, this rule would require the protest be filed by March 24.  If the protestor learned of the action on March 23 or later, the time for filing the protest would correspondingly be later. 

 

Two protests were filed March 24 and are unquestionably timely filed.  Ten protests were filed March 25 and may be timely if the protestor learned of the action on March 23 or later.  Protests filed March 28, 29, and 30 could be timely, depending on proof of when the protestor learned of the action and application of the “working day” provision of the rule.  Later filed protests may or may not be timely for the same reasons. 

 

The IBT concedes that the protests filed March 24 were timely.  It has offered no evidence to substantiate its claim that the remainder were untimely.  Rather, it asserts without evidence that all protestors were notified by email on March 22, and it provides no proof that the recipients opened the emails the same date they purportedly were sent.

 

Regardless, the time limits for filing protests have long been held to be prudential rather than jurisdictional.  See, e.g., Halberg, 2007 ESD 402 (May 2, 2007); Gleason, 2006 ESD 370 (November 9, 2006), aff'd, 06 EAM 79 (December 7, 2006); Leedham Slate, 2001 EAD 394 (June 23, 2001), aff'd, 01 EAM (July 23, 2001); Aksamit, 2001 EAD 213 (March 5, 2001), aff'd, 01 EAM 47 (March 16, 2001); Ruscigno, P144 (October 4, 1995), aff'd, 95 EAM 25 (October 18, 1995).  Despite the prudential nature of the limitations period, we have denied protests as untimely filed where prudential considerations do not warrant a waiver of the limit.  White, 2006 ESD 104 (February 27, 2006), aff'd, 06 EAM 15 (March 6, 2006); Milligan, 2001 EAD 156 (February 12, 2001).

An allegation of retaliation has repeatedly been held to be a prudential consideration warranting waiver of the protest time limit.  Wsol, P-95-IBT-CHI (September 20, 1995) (protest filed 25 days late is considered on its merits because it concerned alleged retaliation); Gonsalves, PR-038-LU70-PNW (February 18, 1998) (protest filed 27 months after protestor’s dismissal and 6 months after the dismissal of any pro-Carey steward is untimely; nonetheless, “as allegations of retaliation are considered a severe violation of the Rules, the Election Officer will address the merits of this protest regardless of its untimely status.”)

 

We deny the IBT’s motion to dismiss some of the protests on timeliness grounds, given the lack of proof they were untimely filed.  Further, even if untimely, we exercise our prudential authority to waive the time limits in cases where impermissible retaliation is alleged.

 

For the foregoing reasons, the IBT’s motion is denied in all respects.

 

            We retain jurisdiction to investigate the factual bases for the protestors’ claims and the respondents’ defenses.  As such, this decision denying the IBT’s motion is not appealable of right under the Rules because it does “determine the merits of the protest[s].”  Article XIII, Section 3(e).   Should the IBT seek to pursue an interlocutory appeal of this decision, we direct it to apply to the Election Supervisor for a stay of the investigation, with reasons therefor, and apply to the Election Appeals Master for leave to file on an interlocutory basis.  Such applications must articulate any claim of irreparable harm the IBT asserts it will suffer from the Office of the Election Supervisor proceeding with investigation of the protests if the stay or leave to appeal is not granted.

 

                                                                  Richard W. Mark

                                                                  Election Supervisor

cc:        Barbara Jones

            2022 ESD 187

 

     

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