Protest Decisions

IN RE: Richard Foulkes and Alfornso Valdez,
Protest Decision 2001 EAD 283
Issued: March 30, 2001
OEA Case No. PR032211WE

Alfonso Valdez and Richard Foulkes, Local 741 candidates for delegate and alternate delegate, respectively, on the Strong Teamsters for a Change slate ("Strong Teamsters slate"), jointly filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). They allege that Mary Ann Jackson, Terminal Manager at Active USA, Inc. ("Active") retaliated against Paul Mougin because he endorsed the Strong Teamsters slate.

Election Administrator representatives Dolores Hall and Paige Keys investigated this protest.

Findings of Fact

There are two slates in the Local 741 delegate elections. Along with the Strong Teamsters slate, the Pardo/Thompson Unity slate ("Unity slate") is running one delegate and one alternate candidate. Roger Pardo is the delegate candidate on the Unity slate and is the nephew of Jose Gasca, secretary-treasurer of Local 741.

According to Foulkes, Gasca has a close relationship with Jackson. Foulkes claims that Mougin was "singled out" by Jackson and "deprived of work on the pretense of uncontrolled hypertension even though he has had a valid DOT medical certificate since November, 1999."

Mougin, a member of Local 741, is a driver for Active in its Kent, Washington location and actively supports the Strong Teamsters slate. Active is owned by ATC Leasing Company ("ATC"). In the summer of 2000, there was an accident in the carhaul division of ATC in which a man was killed and his wife and two children were maimed. For this reason, ATC's insurance company is conducting an audit of the records of all company drivers.

In accordance with Department of Transportation ("DOT") Regulations[1], Mougin had a physical in November 1999. Mougin was found to have elevated blood pressure. Per guidelines set forth in the Regulations, he was given a three-month period to reduce his blood pressure. Mougin did so and was issued a two-year card by his physician requiring him to return for a physical in two years even though the guidelines required that he be given a one-year card.

ATC's insurance company discovered that Mougin's records did not comply with DOT regulations. Jackson received a notice from Saundra Mosley, supervisor in ATC's compliance department, stating that Mougin needed to re-check his blood pressure. She forwarded this notice to Mougin but three days later Mougin had not complied. As a result, Jackson took Mougin out of service. Mougin re-checked his blood pressure and it was again elevated. Two days later he checked it again and it was lower. His doctor issued a release and Mougin was allowed to drive.

Mosley stated that her department should have caught the physician's mistake. It was noticed, however, because of the audit. Jackson stated that Mougin was not the only driver whose records were audited and named at least three other cases that were handled in the same way.

Analysis

The Rules, at Article VII, Section 11(f), prohibit "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" when directed toward the exercise of any election-related right. See Parisi, P1095 (December 2, 1991). A protest claiming retaliation cannot be sustained unless a threat or an actual act of retaliation is established. Giacumbo, P100 (October 13, 1995), aff'd, 95 EAM 27 (October 25, 1995).

To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the decision or the conduct in dispute. The Election Administrator 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 protected conduct. See Gilmartin, P32 (January 5, 1996), Leal, P51 (October 3, 1995), aff'd, 95 EAM 30 (October 30, 1995); Wsol, P95 (September 20, 1995), aff'd, 95 EAM 17 (October 10, 1995). Cf., Wright Line, 251 NLRB 1083 (1980), enf'd, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).

Based on evidence submitted by ATC's compliance department, we find that the evidence here does not support the claim of retaliation against Mougin. Rather, we find that Jackson took Mougin out of service to remedy the problem with his record and would have done so even if Mougin had not endorsed the Strong Teamster slate.

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. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Kenneth Conboy

Election Appeals Master

Latham & Watkins

Suite 1000

885 Third Avenue

New York, New York 10022

Fax: 212-751-4864

Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15^th Street, N.W., 10^th Floor, Washington, D.C. 20005 (fax: 202-454-1501), all within the time prescribed above. A copy of the protest must accompany the request for hearing.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy

2001 EAD 283

DISTRIBUTION LIST (BY UPS NEXT DAY AIR UNLESS OTHERWISE SPECIFIED):

[1]   Department of Transportation Regulation 391.41 (b) (6).