Protest Decisions

              November 24, 1998

VIA FACSIMILE AND FIRST-CLASS MAIL

Joe Fahey

November 24, 1988

Page 1

Joe Fahey

c/o Tom Leedham Campaign Office

P.O. Box 15877

Washington, DC 20003

Sergio Lopez, Sec.-Treas.

Teamsters Local Union 912

163 West Lake Avenue

Watsonville, CA 95076

Arthur Z. Schwartz, Esq.

Kennedy, Schwartz & Cure

113 University Place

New York, NY 10003

John Metz Slate

c/o Jim Smith

2833 Cottman Avenue

Philadelphia, PA 19149

George O. Suggs, Esq.

Wilburn & Suggs

1015 Locust

Suite 818

St. Louis, MO 63101

Joe Fahey

November 24, 1988

Page 1

Re: Election Officer Case No. PR-280-LU912-EOH

Gentlepersons:

Joseph Fahey, president of Local Union 912, a representative of the IBT Warehouse Division, and field director for the Tom Leedham “Rank and File Power” Slate (“Leedham Slate”), filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Sergio Lopez, secretary-treasurer of Local Union 912 and a candidate for International vice-president on the John Metz Slate (“Metz Slate”).  Mr. Fahey alleged that Mr. Lopez removed him from a plant closure assignment in retaliation for his support of the Leedham Slate.

Mr. Lopez admits removing Mr. Fahey from the assignment due to a fear that Mr. Fahey might use the assignment for election-related activities but denies that his decision was in retaliation for the protester’s support of the Leedham campaign.  Mr. Lopez also admits that he has no evidence to show that Mr. Fahey ever campaigned during any meetings related to the plant closing assignment.

The protest was investigated by Election Office Staff Attorney Peter F. Gimbrère.

Joe Fahey

November 24, 1988

Page 1

Mr. Fahey has been president of Local Union 912 since January 1986 and has been working as an international representative since November 1994.  Since 1994, in his dual capacities as local union president and international representative, Mr. Fahey has been working on Local Union 912 issues such as negotiations, grievances, and plant closing campaigns.  Mr. Fahey explained that his international representative assignments often took him away from Local Union 912.  Whenever he was not traveling, he would consult with Mr. Lopez regarding any current Local Union 912 issues that he could “help out on.”  Mr. Lopez has been secretary-treasurer of Local Union 912 since January 1986.  The secretary-treasurer is the principal officer of Local Union 912.

According to both the protester and Mr. Lopez, plant closing campaigns focus on the myriad of social and economic issues that affect workers displaced by the closing of an employer’s facility.  The campaigns are often initiated well prior to the actual closing of the facility and include elements such as educational retraining sessions; negotiation sessions with employers to clarify severance demands, transfers and the closure schedule; job fairs; and organized demonstrations against the actual closings.  Prior to his appointment as an international representative, Mr. Fahey had worked on a number of plant-closing campaigns, including the closing of the Green Giant and Crosetti Frozen Food facilities in Watsonville, California.  After his appointment in 1994, he also worked closely with Mr. Lopez on a Nabisco plant-closing campaign.

In early spring, 1998, the Del Monte Food facility (“Del Monte”) located in San Jose, California announced that it would be closing in fall, 1999.  In April and June, 1998, Mr. Fahey met with the Del Monte workers and began to organize committees and to initiate various actions related to the future plant closure.  According to both Mr. Fahey and Mr. Lopez, it was solely Mr. Fahey’s decision to meet with the Del Monte workers and to initiate a plant closing campaign.  On May 22, 1998, Mr. Leedham declared his candidacy  for IBT general president.  During the month of June, Mr. Leedham formed the Leedham Slate.

Most of July and August, 1998, Mr. Fahey was absent from Local Union 912.  During that time, Mr. Fahey traveled to both Arkansas and Missouri in his capacity as a food processing representative to the Warehouse Division.  That specific travel was approved by Mr. Leedham, Director of the Warehouse Division, and Sam Carter, Executive Assistant to the General President.  Mr. Fahey has traveled in a similar manner in his capacity as a food processing representative since 1994.  Mr. Fahey also took a number of vacation days in July and August during which he campaigned for Mr. Leedham and the Leedham Slate.

Joe Fahey

November 24, 1988

Page 1

While the protester was traveling out of state, Business Agent Gloria Tapia and Vice-President Pam Cheaney informed Messrs. Lopez and Fahey that some Del Monte workers had expressed concerns regarding the lack of any further scheduled meetings and were asking about Mr. Fahey’s whereabouts and the extent of his commitment to the Del Monte plant-closing campaign.  On August 31, 1998, Mr. Fahey returned to Northern California and held two more meetings with the Del Monte workers.  Ms. Tapia and Ms. Cheaney attended both meetings.

On September 1, 1998, Mr. Fahey was informed by Ms. Tapia that Mr. Lopez had questioned her about the content of the two August 31 meetings and had then told her that there were to be “no more meetings.”  After hearing this, Mr. Fahey called Mr. Lopez and asked him about the status of the Del Monte meetings.  According to Mr. Fahey, Mr. Lopez informed him that he was afraid that Mr. Fahey was unrealistically raising the expectations of the Del Monte workers and initiating projects that could not be completed.  Mr. Lopez then stated that both Ms. Tapia and Ms. Cheaney had voiced their concerns to him regarding Mr. Fahey’s actions with the Del Monte workers.  Mr. Lopez quoted Ms. Cheaney as stating as follows: “I hope Joe doesn’t do politics with those people.”

On September 4, 1998, Mr. Fahey sent a memorandum to Mr. Lopez in which he expressed his intention to proceed with the Del Monte worker meetings until he received written instructions from Mr. Lopez ordering him to stop.  On September 4, 1998, Mr. Lopez sent Mr. Fahey a response ordering Mr. Fahey not to meet with the Del Monte workers anymore without his prior approval.  In this response, Mr. Lopez specifically states that “my changing you from this project is purely and simply due to the concerns expressed to me by Vice President Cheaney and Business Agent Tapia and has nothing to do whatsoever with politics.”  On September 6, 1998, Mr. Lopez sent Mr. Fahey a second memorandum in which he requested that Mr. Fahey “turn over [his] complete files regarding the Del Monte plant in San Jose, Calif. to Vice President Cheaney and/or Business Agent Tapia [as] [t]hey have been assigned to handle this problem for 912.”  Mr. Lopez went on to state that Local Union 912 was not asking for IBT assistance on the issue at this time.

Mr. Lopez stated that in June, 1998, both Ms. Tapia and Ms. Cheaney informed him that Mr. Fahey was working on the Del Monte plant-closing campaign for “purely political purposes,” and that the expectations of Del Monte workers had been raised by Mr. Fahey’s actions as well as by his promise of future activities such as more meetings and marches.  Mr. Lopez stated that he told Mr. Fahey at the beginning of the Del Monte plant-closing campaign that he should not “unrealistically raise the expectations” of the workers and “not to use the workers for political purposes.”  He admitted that a motivating factor in his decision to remove Mr. Fahey from the Del Monte assignment was the fact that Ms. Cheaney had voiced concerns that Mr. Fahey might be holding the Del Monte meetings for political purposes. 

Joe Fahey

November 24, 1988

Page 1

When asked how Mr. Fahey was currently using the workers to support the Leedham Slate, Mr. Lopez stated that the timing of Mr. Fahey’s reappearance at the end of August 1998 coincided with the formation of and announcement of the Leedham Slate.  After further questioning, Mr. Lopez admitted that he had no evidence of Mr. Fahey ever having campaigned at any of the Del Monte worker meetings in the past but contended that he had properly removed Mr. Fahey from the Del Monte campaign to insure that he would never use the meetings for  political purposes in the future.  Mr. Lopez also asserted that, regardless of the motivation for Mr. Fahey’s removal, due to his position as secretary-treasurer of Local Union 912, he retained the power to remove and assign Mr. Fahey at his discretion.

Ms. Tapia and Ms. Cheaney fundamentally corroborated Mr. Lopez’s version of events. As additional evidence of Mr. Fahey’s alleged intent to utilize the Del Monte meetings for political gain, Ms. Tapia stated that Mr. Fahey had been distributing literature related to the “guest worker bill” campaign, which included postcards for members to sign and return to the IBT.  However, Ms. Tapia admitted that the postcards were addressed for return to the IBT, not to the Leedham Campaign, and she failed to present any evidence that information from the postcards was ever shared with the Leedham Campaign.  Ms. Tapia and Ms. Cheaney admitted that they had never heard or seen Mr. Fahey campaign at any of the Del Monte meetings.  Ms. Cheaney admits telling Mr. Lopez she was concerned that due to Mr. Fahey’s affiliation with the Leedham Slate he would use the Del Monte workers as “campaign tools.”  As evidence of this intent, she stated that she had seen Mr. Fahey taking pictures of Leedham supporters at a union rally held at a Smuckers Food facility.  She also alleged that Mr. Fahey used the lists acquired from the Del Monte meetings to campaign for the Leedham Slate.  As evidence, she cited conversations she had with Del Monte workers who told her that Mr. Fahey had called them at their homes after work specifically to talk about the International Officer Rerun Election.

The Rules, at Article VIII, Section 11(f), prohibit “[r]etaliation or threat of retaliation

by . . . any subordinate body . . . any employer or other person or entity against a Union member. . . for exercising any right guaranteed” under the Rules.  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.  Thus, the protester must show that he was removed from his assignment because he supports the candidacy of Tom Leedham and other members of the Leedham Slate.  The Election Officer will not find retaliation if he concludes that the union would have taken the same action even in the absence of the protected conduct.  See Gilmartin, P-032-LU245-PNJ, (January 5, 1996), aff’d, 95 - Elec. App. - 75 (KC) (February 6, 1996); Leal, P-051-IBT-CSF (October 3, 1995), aff’d, 95 - Elec. App. - 30 (KC) (October 30, 1995); Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995).  Cf., Wright Line, 251 NLRB 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).

The Election Officer made clear in Phelan, P-711-LU550-NYC (April 24, 1996), aff’d, 96 Elec. App. - 184 (KC) (May 6, 1996), that termination may not include any motivation linked to the International Officer Rerun Election:

Joe Fahey

November 24, 1988

Page 1

While 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 guaranteed under the Rules.  See Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995); Parisi, P-1095-LU294-PGH (December 2, 1991); Cremen, P-425-LU311-MID (March 11, 1991), aff’d, 91 - Elec. App. - 101 (SA) (March 19, 1991).  As the Election Appeals Master stated on appeal in Wsol, “the Election Rules are broader than federal labor law, and prohibit any retaliation relating to the exercise of members’ rights under the Rules . . . .

The protester’s support for the Leedham Slate constitutes protected activity under the Rules.  Mr. Lopez admitted that Ms. Cheaney’s specific expression of concern to him that Mr. Fahey would utilize his position to campaign for the Leedham Slate was the motivating factor in his decision to remove Mr. Fahey from the Del Monte assignment.  However, as Mr. Lopez failed to submit any evidence showing that Mr. Fahey had previously campaigned at Del Monte worker meetings,[1] his removal of Mr. Fahey was improper and directly violates the Rules.  The Election Officer notes that has consistently refused to consider speculation as to what campaign activities may occur in the future.  See Atha, PR-127-IBT-EOH (July 8, 1998).  Thus, the evidence establishes that the removal of Mr. Fahey from the Del Monte plant closing campaign was directly motivated by his activities in the International Officer Rerun Election.

Accordingly, the protest is GRANTED.

When the Election Officer determines that the Rules have been violated, he “may take whatever remedial action is appropriate.”  Article XIV, Section 4.  In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation as well as its potential for interfering with the election process.  If the Election Officer finds that an IBT member has been disciplined or discharged in violation of the Rules, the Election Officer can order a remedy nullifying the discipline or reinstating the member with full back pay.  In re Henderson, 91 - Elec. App. - 187 (SA) (September 18, 1991) (reinstatement with back pay); In re Tuffs, 91 - Elec. App.- 191 (SA) (March 15, 1991) (removal of warning letter from personnel file).

Therefore, the Election Officer orders the following:

1.               Mr. Lopez shall immediately cease and desist from retaliating against Mr. Fahey based upon activity protected by the Rules.

Joe Fahey

November 24, 1988

Page 1

2.              Mr. Lopez shall immediately offer to reassign Mr. Fahey to his assignment with the Del Monte Food workers.  Mr. Lopez shall permit Mr. Fahey a period of two weeks to accept the offer.

3.              By November 27, 1998, at his own expense, Mr. Lopez shall sign, copy and post the attached “Notice to Local Union 912 Members and Employees” on all bulletin boards at Local Union 912 and the Del Monte Food facility.

4.              By November 30, 1998, Mr. Lopez is ordered to submit a signed affidavit to the Election Office detailing his compliance with this order of the Election Officer.

An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules.  In re Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one 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 1000

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

cc:              Kenneth Conboy, Election Appeals Master

NOTICE TO LOCAL UNION 912 MEMBERS

The Election Officer has found that I have retaliated against Local Union 912 President Joe Fahey in violation of the Election Rules.

All local union employees have the right to engage in activity protected by the Election Rules without fear of retaliation or intimidation.

I have been ordered to offer Mr. Fahey the right to be reassigned to his assignment assisting the members at Del Monte Food.  I will not retaliate against Mr. Fahey or any other member for engaging in protected activity.

___________________                                          ______________________________

Date                                                                                    Sergio Lopez, Secretary-Treasurer

Local Union 912

This is an official notice which must remain posted until December 3, 1998.  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.