IN RE: LIONEL KELLY and JOE BUSTOS, Protestors.
Protest Decision 2006 ESD 281
Issued: May 30, 2006
OES Case No. P-06-163-022106-SO and P-06-191-022806-SO
Lionel Kelly and Joe Bustos, members of Local Union 988, filed two pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protests alleged that W.C. "Willie" Smith, the Trustee for Local 988, threatened to terminate Kelly if he ran for delegate, and that Kelly and other business agents were coerced to donate $500 to the 988 delegate slate, in violation of the Rules.
Election Supervisor representative Dolores C. Hall investigated this protest.
Findings of Fact
Kelly, a business agent of Local Union 988, alleged that Smith denied his campaign rights in the delegate election by threatening to terminate him if he ran for delegate, coercing him to donate $500 to the 988 delegate slate campaign, and threatening him with termination if he donated to the Hoffa/Johnson campaign. Kelly's protest letter was dated February 17, 2006. He was terminated from his position as business agent on February 22.
In December 2005, Smith and 5 business agents, including Kelly, met and decided that local union officers and employees would promote a slate comprised of shop stewards in the delegate and alternate delegate election. The business agents and Smith agreed that each would donate $500 to run the campaign; slate members would each be asked to contribute $300. Kelly alleged that he was threatened with dismissal from his business agent position if he did not make the agreed contribution.
Business agents Garry Kyle and Allen Polk, who also were present at the December 2005 meeting, stated that they were never threatened with dismissal for running for delegate or for not making campaign contributions. Polk told our investigator that he has not paid anything toward the campaign and was never threatened with termination.
Kelly also alleged that he did not seek nomination for delegate because Smith threatened him with termination if he did. Local Union 988 held its nominations meeting on January 28, 2006. Kelly did not file his protest until February 17, three weeks later. The protestor stated that he was fearful of dismissal by Smith if he ran for a position.
Investigation showed that Kelly's coworkers believed he was in agreement to form a stewards slate and denied ever hearing Kelly say he wanted to be nominated. One member interviewed, who was a supporter of Kelly, stated that Kelly told him that he did not want to be a delegate because he was going to get to go to the convention as a sergeant-at-arms.
Willie Smith stated that he became the Trustee for Local Union 988 in October 2003 and immediately began having problems with Kelly. The problems included complaints from constituents regarding poor representation and Kelly's repeated failure to submit periodic reports documenting his activity. Smith initially had Kelly undergo business agent retraining. However, performance problems continued to surface. Thus, during the period August through December 2005, employees of various employers for which Kelly was the business agent filed "Charges Against Labor Organization of Its Agents" with the National Labor Relations Board. Our investigation confirmed that the charges either specifically mentioned Kelly by name, or were filed by members employed by companies under Kelly's jurisdiction. One member confirmed that he was dissatisfied with Kelly's representation of him. Previously, in March 2004, a decertification petition was filed by Texas Hobby Auto Auction. Our investigation revealed that the petition was filed in part because of dissatisfaction with Kelly. In another instance, Smith provided our investigator with copies of an exchange of correspondence between the local union and Roadway employee Kevin Adams, the latest dated December 15, 2004, in which Adams complained about the protestor's handling of his grievance.
According to Smith, Kelly frequently failed to submit weekly activity reports timely. The following is a chronological list of events detailing warnings Smith gave Kelly for his conduct:
December 3, 2004: Final warning to Kelly from Smith regarding not turning in his charge receipts and expense reports in a timely fashion.
January 26, 2005: Final warning to Kelly from Smith regarding not turning in his receipts and paperwork in a timely manner.
October 24, 2005: Final warning to Kelly from Smith regarding not showing up for work at 8:30a.m. on Monday mornings and not calling in.
December 12, 2005: Third request from office secretary to Kelly for weekly activity reports due in October and November; second request for November activity report and first request for December activity report (which was late).
December 29, 2005: Request from office secretary to Kelly for weekly activity reports for November and December.
Smith fired Kelly on February 22, 2006. On February 20, Smith discovered that Kelly had used the local union's credit card to purchase gasoline when he was on vacation during December 2005. Smith directed the office staff to audit Kelly's other gas purchases for 2005; the audit revealed additional instances where Kelly had purchased gas using the union credit card while on vacation. As the result of these impermissible uses of union funds, Kelly's failure to submit weekly activity reports timely, and his documented shortcomings in representation, Kelly was terminated by letter dated February 22.
Smith denied that he forbid Kelly or any other business agent from running in the local union delegate and alternate delegate election. He also denied that he forced business agents to donate $500 to the Local 988 slate campaign. Smith denied that he knew about Kelly's protest prior to terminating him.
Analysis
Article VII, Section 11(f) of the Rules 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).
Proving a retaliation case requires three elements: 1) activity in question is protected under the Rules; 2) the charged party having actual or constructive knowledge of that protected activity; and 3) a showing that the protected activity was a motivating factor in the decision or the conduct at issue. The existence of a reasonable independent basis for the decision or conduct at issue is a defense to an allegation of improper motivation so long as it is not shown to be a pretext. There can be no violation if the decision maker would have taken the same action in the absence of the protective activity. 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), enf'd, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).
There is ample evidence to indicate that Kelly had several serious problems with his work performance. We find that his termination was the direct result of these problems and not his claimed desire to run for delegate. We find no credible evidence that Kelly ever expressed interest in running for delegate. We likewise find no credible evidence that Kelly was threatened with termination should he run for delegate or fail to donate to the campaign of the Local 988 slate.
Accordingly, we DENY the 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 Supervisor 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
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 281
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Lionel Kelly
P.O. Box 11682
Houston, TX 77293-1682
W.C. Willie Smith
Trustee, Local Union 988
4303 N. Sam Houston E.
Houston, TX 77032
Joe Bustos
3418 Pheasant Lane
Pearland, TX 77581
Dolores C. Hall
1000 Belmont Place
Metairie, LA 70001
hall1000@cox.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com