November 24, 1998
VIA FIRST CLASS MAIL
Michael R. McGowan
November 24, 1998
Page 1
Michael R. McGowan
7254 Blackoak Drive
Walls, MS 38680
Carl McVey, Feeder Manager
United Parcel Service
2971 Carrier Street
Memphis, TN 38106
Hoffa Unity Slate
c/o Patrick J. Szymanski, Esq.
Baptiste & Wilder
1150 Connecticut Avenue NW, Suite 500
Washington, DC 20036
Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Arthur Z. Schwartz, Esq.
Kennedy, Schwartz & Cure
113 University Place
New York, NY 10003
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
Bob Rager
Mid-South Labor Manager
United Parcel Service
5501 Fourche Dam Pike
Little Rock, AR 72206
Gary M. Tocci, Esq.
Schnader, Harrison, Segal and Lewis
1600 Market Street
Philadelphia, PA 19103
Michael R. McGowan
November 24, 1998
Page 1
Re: Election Office Case No. PR-322-LU667-EOH
Gentlepersons:
Michael R. McGowan, a member of Local Union 667 and a candidate for International vice-president on the Tom Leedham “Rank and File Power” 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 the Hoffa Campaign and United Parcel Service (“UPS”). The protester contends that UPS denied his request for a leave of absence in order to campaign to retaliate against his candidacy and to support the Hoffa Campaign.
Michael R. McGowan
November 24, 1998
Page 1
UPS denies any the allegation and states that it denied the protester’s request based on the language in the collective bargaining agreement. The Hoffa Campaign denies that UPS has made any contribution to it and otherwise states that the protester has made no allegation against it that states a Rules violation.
The protest was investigated by Protest Chief Mary E. Leary.
The protester states that when he became a candidate for vice-president, he had already accepted his vacation time for 1998. Therefore, in order to campaign, he had to either take personal leave or be granted a leave of absence.
The protester sent letters to UPS requesting leaves of absence to attend campaign functions. Specifically, the protester sent a letter dated August 19, 1998, to Carl McVey, UPS Feeder Manager in Memphis, Tennessee, requesting a one-day leave of absence on August 21, 1998 to travel to a scheduled campaign function. On August 28, 1998, the protester sent another letter to Mr. McVey requesting a four-day leave of absence from September 4 to September 11, 1998, for a scheduled campaign function. On September 30, 1998, the protester sent another letter to Mr. McVey requesting a leave of absence on October 9, 12 and 13 to attend a scheduled campaign function. The protester also sent a letter dated September 30 to Bob Rager, UPS Mid-South Labor Manager, requesting assistance in his leave of absence request. All of the requests cited Article 60 and 61 of the National Master United Parcel Service Agreement and Southern Region Supplement Agreement (“UPS Agreement”).
The protester states that his request for leave on August 19 was granted and that he never received an answer to his August 28 request. As to his September 30 request, it was denied by Mr. McVey on October 2, 1998.
Article 60 of the UPS Agreement pertains to holidays. Specifically, Article 60, Section 1(B) - Personal Holidays, reads, in pertinent part, as follows:
All seniority employees shall receive one (1) personal holiday each calendar year.
. . . Any employee desiring a personal holiday will make a request in writing on a form furnished by the Employer. Such a request must be submitted no later than the start of his/her shift on the seventh (7th) calendar day preceding the day requested. A signed copy of the request form stating approval or disapproval shall be returned to the employee by the end of the next working day. . . .
Michael R. McGowan
November 24, 1998
Page 1
Mr. Rager contends that UPS is not granting leave requests because they are in their peak season. However, Mr. Rager states that Mr. McGowan’s request for leave on August 21 was granted, despite the fact that it was not on a proper form or submitted seven days in advance, because Mr. McGowan had a personal day and UPS had other employees to cover for him. As to his leave for September 4 through 11, 1998, UPS did not approve.
When Mr. McGowan requested the October leave on September 10, Mr. Rager denied it because Mr. McGowan did not have the requisite personal leave left. Mr. McGowan had also requested that the leave be pursuant to Article 16, Section 1, of the UPS Agreement which reads:
The Employer agrees to grant the necessary time off, without discrimination or loss of seniority rights and without pay, to any employee designated by the Union to attend a labor convention or serve in any capacity on other official business, provided forty-eight (48) hours written notice is given to the Employer, by the Union , specifying the length of time off. . . .
Mr. Rager additionally denied the request under this provision because the leave was not for official union business. On October 6, 1998, Local Union 667 Business Agent Michael Scott wrote to UPS requesting that the protester be granted leave on October 9, 1998, pursuant to Article 16, Section 1, to attend to Local 667 Building Corporation Business. This leave was granted under the contract. The other days of leave were denied because there was no request from the union and the protester’s request was not for official union business. At a meeting with Local Union 667 Business Agent Mike Brewer on October 7, 1998, Mr. Brewer raised the denial of the protester’s leave with Mr. Rager. Mr. Brewer said that he was aware of the protester’s request for the leave because the protester had asked Mr. Brewer to write a letter.
Article VIII, Section 11(f) of the Rules provides:
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.
Michael R. McGowan
November 24, 1998
Page 1
To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the adverse decision or conduct in dispute. The Election Officer 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 protester’s protected conduct. Gilmartin, P-032-LU245-PNJ (January 5, 1996), aff’d, 95 - Elec. App. - 75 (KC) (February 6, 1996). See 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).
The protester has not presented any evidence that the denial of leave was in retaliation for his campaign activities. Indeed, the denial of leave appears to be in accordance with the provisions of the contract. The protester has not presented any evidence that UPS has granted such leave to other employees.[1] The protester has presented no evidence to support any contention against the Hoffa Campaign.
Accordingly, the protest is 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 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
[1]In his protest, Mr. McGowan states, “Other employees have requested, leave of absents [sic] and have in fact been granted leave for personal reasons.” The protester presented no evidence to support this contention. Moreover, the UPS Agreement at Article 16, Section 2 states that such leave must be requested in writing “at least thirty (30) days before the day on which the leave is sought to commence. If the leave is not foreseeable, the employee shall submit the written request as soon as possible, and shall include an explanation why the leave was not foreseeable.” Even assuming Mr. McGowan was requesting leave under this provision, he failed to comply with its requirements.