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Office of the Election Supervisor for the International Brotherhood of Teamsters




                        PROTESTOR.                                                            2015-2016 EAM 2 (KAR)                                                                                                                  ORDER RE ESD 42


            Protest Decision 2015 ESD 42, regarding Sam Bucalo, member and secretary-treasurer of Teamsters Local 100, was issued on October 19, 2015 (OES Case No. P-052-092215-ME).  On October 20, 2015, Mr. Bucalo filed an appeal of ESD 42.  By Notice of Hearing sent to all identified Interested Parties, a telephonic hearing was scheduled for October 30, 2015.  On October 26, 2015, the Election Supervisor submitted a written response to the appeal.


            A telephonic hearing was held on October 30, 2015:  The following individuals attended the hearing:  Sam Bucalo; Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor; David J. Hoffa (Hoffa-Hall 2016); Dan Walsh (Adjunct Regional Director for OES); and Alan Jones (Joint Council 26).


            For the reasons set forth below, the appeal of ESD 42 is DENIED.


The protest alleged that Sam Bucalo, a business agent and secretary-treasurer of Local Union 100, was suspended from office for two weeks in retaliation for publishing and distributing campaign literature that supported a slate of candidates for International office. The Election Supervisor found to the contrary that Bucalo was suspended because he negotiated a provision in a collective bargaining agreement that he had no authority to negotiate and then failed or refused to present a revised provision to the bargaining unit membership for ratification.  The Election Supervisor concluded that Bucalos conduct in the negotiations provided the basis for his suspension, not his Rules-protected conduct.


            The Election Supervisor made the following findings of fact:


In addition to his duties as local union secretary-treasurer, Bucalo serves as business agent for between one-fifth and one-quarter of the local unions 4,000 members.  In that role, among other duties, he leads negotiations at the local union level for successor collective bargaining agreements. Bucalo  led negotiations  for a  successor collective  bargaining  agreement  at  Zenith  Logistics  in  the summer of 2014.  The policy and practice of Local Union 100 is to reimburse lost-time wages for bargaining committee members only on a limited, case-by-case basis, requiring the approval of the local union executive board.  Bucalo knew of this policy and practice and, in August 2014, proposed a resolution to the executive board to pay half of the lost time for the Zenith bargaining committee, with the employer paying the other half.  After debate, the board approved the proposal, but limited it to the first six bargaining sessions, a resolution applicable only to the 2014 negotiations.   Bucalo thereafter negotiated a provision in the collective bargaining agreement that guaranteed the union and employer would split fifty-fifty the lost time of committee members in future bargaining.  He did so without informing or gaining the approval of the executive board.  When the board learned of the provision in February 2015, it brought internal union charges against Bucalo that alleged he had brought reproach on the local  union,  violated  his  fiduciary duties  to  the  membership,  and  encroached  upon  the authority of the executive board by committing the local union to pay lost time irrespective of the existing policy and practice Bucalo was instructed to fix the problem.   When he negotiated a replacement provision making payment of lost time contingent on executive board approval, the local union determined on the advice of counsel that the new language had to be ratified by the membership.  Bucalo did not submit the proposal for ratification despite opportunity, and the internal charge against him proceeded to trial.  


On or about July 1, 2015, a little more than a week before trial, Bucalo published and distributed to the membership a personal newsletter that included his personal endorsement of Teamsters United, a slate of candidates for International office.  The newsletter drew two protests, one from Hoffa-Hall 2016 and the other from a member of Local Union 100, both arguing that Bucalo’s personal newsletter misled members to believe that it was the official newsletter of the local  union  and  therefore  an  impermissible union  endorsement  of  candidates.    The Election Supervisor denied that protest, finding the personal newsletter was campaign material properly labeled as such and therefore not a violation of the Rules.  Hoffa-Hall 2016 and Meyer, 2015 ESD 28 (August 28, 2015).   However, the newsletter and reaction to it came up at a meeting of the joint council executive board on July 6, 2015, three days before the trial of the internal union charge against Bucalo, which was attended by the charging parties Webster and Butts.  At trial, the panel found merit to the charge against Bucalo and ordered him suspended from all official duties for a period of two weeks.


On these facts, the Election Supervisor concluded that Bucalo was suspended for his conduct in office, not for his Rules-protected activity.  The Election Supervisor found Bucalo knew of the requirement to obtain executive board approval of lost-time reimbursement but negotiated a provision requiring the local union to make such payments in the future without notice to or approval of the executive board, conduct that reasonably explained the trial panel’s decision.   Second, the Election Supervisor determined that the publication of the personal newsletter and the discussion of it at the joint council executive board meeting days before trial was not a factor that made a difference in the joint council panel’s decision to find Bucalo responsible for the charge the local union executive board had brought against him.


Bucalo contends that the Election Supervisor’s decision gave no weight to the influence Webster and Butts may have hadby discussing at the July 6 joint council meeting an election protest against Bucalo (italics emphasis added).  Notably, Bucalo does not contend that the discussion in fact influenced the panel’s consideration of the charge against him. Rather, he speculates that it did.  The Election Supervisor found to the contrary that the great weight of the evidence presented at trial demonstrated that Bucalo negotiated a provision he knew he lacked the authority to negotiate, that the provision committed the local union to pay lost time in circumstances at substantial variance from its policy and practice, that he had the contract containing the provision ratified by the bargaining unit without notifying the executive board and obtaining its approval of the provision, and then that he failed or refused to  obtain  ratification  of  a  modification  of  the  provision  at  issue  that  would  meet  his obligation to obtain executive board approval of lost-time payments.  Bucalo’s contention on appeal that the only possible explanation for the trial result is improper retaliation ignores the gravity of his own conduct in usurping to himself authority reserved to the executive board. The seriousness of Bucalo’s conduct is evidenced by the relatively extraordinary action of the executive board in bringing an internal charge against him, action the board took in February 2015, months before Bucalo published and distributed his personal newsletter.


Bucalo also contends that legal counsel for Local Union 100 advised that the replacement contract language could become effective without ratification merely by posting it at the worksite.   The Election Supervisor concluded from the investigation that legal counsel did not advise as Bucalo contends.  Instead, legal counsel concluded that ratification was required because the so-called “clarifying” language the committee reached with the employer acted to diminish a benefit that existed in the just-negotiated contract.


Bucalo also argues on appeal that he was free to ignore the local union’s policy and practice of paying lost time only on a case-by-case basis because the policy had been adopted at a time of austerity in the local union and, since Bucalo’s election, fortunes had reversed and the union was now flush with cash.  This argument fails to consider that the policy did not permit Bucalo to ignore it on his own motion; instead, the decision to grant or deny lost-time reimbursement remained the executive boards to make.


The same day he received notice of his suspension and learned of the content of the joint council minutes, Bucalo filed an appeal of the joint council panels trial decision with General President Hoffa, requesting a stay of the suspension pending consideration of the appeal.   No action was taken on Bucalos request for stay, and he served the suspension on the dates president Webster’s letter outlined.  The investigation found that the appeal and request for stay was received by the IBT legal department before the suspension commenced.  However, evidence was presented that the General President was not informed of the stay request.  


Bucalos protest alleged that he suffered retaliation for exercising his personal right as a member to endorse candidates in the International officer election, retaliation that came in the form of 1) the local union executive board filing an internal union charge against him; 2) the joint council trial panel finding against him at the trial of that charge and suspending him from his union office for two weeks; and 3) the General President failing to take action on his request for stay of the suspension.


Article VII, Section 12(a) describes activity protected by the Rules as follows:



All Union members retain 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(g) states that:



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.


To establish a violation of this section, 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), affd, 05 EAM 4 (November 15, 2005) (quoting Cooper, 2005 ESD 8 (September 2, 2005).  The Election Supervisor 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 protestor’s protected conduct.  Miner, 2005 ESD 1 (May 27, 2005);  Link, 2011 ESD 207 (April 12, 2011);  Ulloa, 2001 EAD 135 (February 6, 2001);  Ruscigno, 2001 EAD 105 (January 26, 2001);  Pope, 2000 EAD 39 (October 17,2000); Hoffa, P857 (September 11, 1996), aff'd, 96 EAM 234 (September 19, 1996).  In other words, a retaliation case is analyzed under the Rules just as a discrimination case is under the NLRA.   See generally Wright Line, 251 NLRB 1083 (1980), enfd, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).



Bucalo does not offer any persuasive evidence to support his allegations. First and most importantly, Bucalos conduct in negotiating a provision requiring the local union to pay lost time to a bargaining committee – a provision he proposed to the employer without first informing the executive board and obtaining its consent – usurped the executive boards authority to administer this aspect of local union expenditures.  The executive board had reserved this authority to itself by written policy and established practice, both of which Bucalo knew were binding on him as business agent.  Indeed, Bucalo knew of this policy, having requested that the executive board approve a resolution specific to the 2014 Zenith negotiations; he was also aware that the August 2014 executive board resolution applied only to the pending negotiations and not to future ones.


Second, Bucalo contends that the charge against him was retaliation for protected activity. Timing does not support this contention, however.  Bucalo negotiated the provision at issue in or around November 2014.   The local union executive board learned of it in February 2015 and  responded immediately with the internal union charge.  The protected activity Bucalo claims prompted the charge was his July 1, 2015 publication of a personal endorsement of the Teamsters United slate, which occurred more than four months after the charge was filed against him.   We reject Bucalos implicit assertion that the February 2015 internal charge was a response to and in retaliation for protected activity that would not occur for another four months.  Moreover, there is no evidence to suggest that the Bucalos July 1, 2015 publication of his political endorsement played any role in the decision of the charging parties to continue with the charge at trial on July 9.  To the contrary, we find that positions on the  contract  language  between  charginand  charged  parties  had  been  established  before  Bucalo published  his  endorsement,  with  the  only action  that  might  have  dissuaded  charging  parties  from proceeding on the charge being ratification of the addendum by the Zenith membership.  That Bucalo failed or refused to pursue that ratification meant that the trial before the joint council would proceed, and no evidence suggests that the political endorsement affected the decision to move forward on the charge.  Cf.  Gonzalez, 2011 ESD 273 (June 3, 2011) (internal union charges were directly related to and motivated by” the charged partys conduct and therefore did not constitute prohibited retaliation under the Rules);  Peete-Jackson, 2006 ESD 112 (February 27, 2006) (removal of shop steward from her position was the result of her dishonesty and failure to respond to requests for communication and not because of her protected activity).


Third, while Bucalo asserts that the basis for the internal charge against him wasfrivolous” and that no reasonable person could have made [the] determination” to charge him with and find him responsible for misconduct, we conclude that the defenses he presented bordered on the frivolous. Where the local union executive board followed an express and specific policy of deciding case-by-case whether to pay lost time to bargaining committee members and any limitations on such compensation, Bucalo was not free to disregard that policy by claiming that he possessed general authority to do as he saw fit.  Nor can Bucalo argue with any force that the clear contract language he negotiated does not mean what it says, which is that the local union is required to pay lost time to bargaining committee members.


Fourth, the Election Supervisor properly rejected Bucalos assertion that the discussion at the joint council executive board meeting on July 6, three days before his trial, of the distribution of his personal newsletter and the resulting election protest was improper and demonstrated retaliatory animus by the joint council.  The assertion is an attempt to paint over and excuse Bucalos own conduct with respect to the lost time provision, conduct that reasonably explains the charge brought against him.  A member may not insulate himself from the disciplinary consequences of his actions merely by engaging in activity protected by the Rules.


Finally, the Election Supervisor properly rejected Bucalos contention that General President Hoffa’s failure to grant a stay of Bucalos suspension constituted retaliation under the Rules.  No evidence demonstrates that the General President was aware of the stay request.  Moreover, as we have stated, the merits of the case against Bucalo suggest that the imposition of discipline against him was appropriate and not motivated by the expression of his political views.


For all of the above reasons, the decision of the Election Supervisor is affirmed and the appeal of ESD 42 is DENIED.