Protest Decisions

IN RE: RHONDA LINK, Protestor.
Protest Decision 2011 ESD 207
Issued: April 12, 2011
OES Case Nos. P-135-021411-GP

Rhonda Link, member of Local Union 631 and delegate candidate on the Restore the Pride slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that the local union retaliated against her for activity protected by the Rules by refusing to process the grievance protesting her discharge from employment.

Election Supervisor representative Bruce Boyens investigated this protest.

Findings of Fact

Link was employed as an HVAC technician by C. Martin Company, a federal contractor to the United States Air Force at the Tonopah Test Range (TTR), a federal installation. She was discharged from employment on November 2, 2010, allegedly for deficient work performance. She filed a grievance protesting the discharge as not for just cause on November 15. The local union did not process it to mediation or arbitration under the contractual grievance procedure. On January 26, 2011, Link received written notice from Local Union 631 that the grievance was withdrawn for lack of merit.

On January 6, 2011, Link was nominated as a candidate for delegate on the Restore the Power (RTP) slate, one of five full or partial slates that competed in Local Union 631's delegates and alternate delegates election. John Phillipenas, local union principal officer, was a candidate on the Empowerment slate. Ballots were tallied on March 28. Link and five other members of her slate won six of the eight delegate positions available for election. Phillipenas and one other member of his slate won the remaining two delegate seats.[1] Link's protest alleged that the local union's decision not to pursue her grievance was made to retaliate against for her delegate candidacy.

Investigation showed the following. In Local Union 631's officers election held in 2008, Phillipenas was elected principal officer. Link was an ardent supporter of Phillipenas' main opponent, Wayne King. Evidence suggests that Phillipenas and Link have been political antagonists since that time.

C. Martin discharged Link in November 2010 for alleged inability to perform her job duties and for inappropriately enlisting the assistance of others to do her work. About eleven weeks before she was discharged, Link was issued a documented verbal warning for "substandard work" on August 18, 2010. According to the documentation, the warning was issued for not following the schedule of assigned tasks, soliciting others to assist her to complete her tasks, and lacking the skills to perform her job, among other reasons. The warning was preceded over several months by notes written on work orders complaining that Link performed work incorrectly, did not complete tasks, and asked others for assistance.

Following the August 2010 warning, C. Martin manager Ric Huibregtse contacted Jim Stinar, the local union business agent responsible for servicing that collective bargaining agreement, to complain of Link's alleged inability to perform her job and of instances in which she allegedly had other employees perform her work for her. According to Stinar, Huibregtse said he wanted to move Link to another job classification such as general maintenance worker or, in the alternative, to terminate her. Stinar said he advised Huibregtse that Link had been in her job as HVAC technician for five years, had no written evaluations documenting poor work performance, and had insufficient progressive discipline to warrant dismissal. Stinar said he suggested that C. Martin consult with Link directly to determine whether she could be placed in another job.

Stinar reported that some time after his exchange with Huibregtse, he was summoned to a meeting on November 2, 2010 with Marion Wiseman, labor relations representative for C. Martin, who announced that Link was discharged that day because a letter from the Air Force contracting officer reported that she was unable to do her work. The contracting officer's letter referenced a previous meeting about HVAC support at a particular facility and noted that circumstances had "again become a problem I feel I need to address with you." The letter reported that "on many occasions when Ronnie Link has work in our areas, she has requested 'hands on' help" from other contractors that went well beyond the courtesy level of assistance normally seen. The letter stated, "Our workers are complaining that they are feeling more and more like they are either helping her do the job or in some cases, doing all the work for her." The letter informed Huibregtse that "our workers have been instructed not to help her beyond the 'courtesy level' anymore to prevent any future issues from them performing work they really should not be doing."

Stinar communicated with Link about this dismissal, and Link elected to file a grievance protesting it. The grievance was filed on November 15, and Stinar retired from his business agent position on November 30.

Dale Black replaced Stinar as business agent. In early January 2011, Black contacted Wiseman about the status of Link's grievance, seeking the employer's written response to it that is required by the collective bargaining agreement. Wiseman's email reply on January 6 stated in part as follows: "I am certain that this grievance was dropped. Mr. Stinar and I had a conversation regarding this. He stated that Ronnie had requested to see a copy of the letter that was provided from the customer complaint on Ms. Link's job performance. Mr. Stinar also said that it was no longer a valid grievance. At that point I was told that a response was not necessary. I am hesitant to respond to a grievance that is already closed, thus re-opening it." Wiseman then asked, "Do you believe that the grievance is still open?" Black replied by email on January 10, stating: "I talked to John Phillipenas about the grievance and he thought it was closed also. So I will close it out."

Before sending his January 10 reply to Wiseman, Black contacted Stinar to verify Wiseman's claim that Stinar had told Wiseman the grievance was not valid. According to Black, Stinar said he did not believe Link's grievance had merit because of the prior complaints about her job performance. Black also reviewed the grievance with Patrick Domholt, Local Union 631's attorney; according to Black, Domholt agreed that the grievance lacked merit (an opinion Domholt repeated to our investigator). Black then notified Wiseman that the grievance was closed.

Black then prepared and sent an undated letter to Link that said "[t]he Union has reviewed the facts and circumstances of the … grievance. After our investigation and review by legal counsel, we have determined that this grievance lacks merit and will not be forwarded to arbitration." Link received the letter January 26, 2011.

She filed the instant protest on February 12, claiming that the union's decision not to pursue her grievance was in retaliation for her delegate candidacy. She claimed a phone conversation with Black on January 13 in which Black stated that Phillipenas agreed with Wiseman that the grievance lacked merit.

Analysis

We first address the apparent untimeliness of this protest. Article XIII, Section 2(b) requires pre-election protests to be filed "within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or such protests shall be waived." According to her protest, Link knew of the decision not to process her grievance as early as January 13 when Black told her orally of the decision. The latest she was aware of the decision was when she received the local union's confirming letter on January 26. She filed the protest on February 12, some 30 days after the conversation with Black and 17 days after receiving the union's letter. She offered no explanation or excuse for the delay in filing. We find that she filed her protest untimely and DENY it on that basis.

Even if we were to consider the protest on the merits, we would deny it. Article VII, Section 12(g) prohibits retaliation for activity protected by the Rules. Link met two of the three requirements to establish retaliation under the Rules. Thus, she engaged in protected activity by standing for nomination as delegate and opposing the candidacy of Phillipenas for the same position. Further, she suffered adverse action, in the form of the union's decision not to process her grievance to mediation or arbitration. However, no evidence was presented establishing that the adverse action was taken in whole or in part because of the protected activity. Rather, evidence established that the decision not to process the grievance was made in November 2010, before Stinar's retirement, when he told the labor relations representative that the employer need not give written answer to the grievance because the grievance lacked merit and the file would be closed. Evidence shows that Stinar reached this conclusion after evaluating the merits of the employer's discharge decision. 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). Cf., Wright Line, 251 NLRB 1083 (1980), enf'd, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982). We find that the local union would have reached the same decision not to process Link's grievance even had she not engaged in political activity protected by the Rules.

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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, 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
        2011 ESD 207

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org

David J. Hoffa
Hoffa Hall 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com

Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org

Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net

Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com

Scott D. Soldon
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.com

Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com

Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com

Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org

Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com

Rhonda Link
P.O. Box 3611
Tonopah, NV 89049
link.roni@gmail.com

John Phillipenas, Secretary-Treasurer
Teamsters Local Union 631
700 North Lamb Blvd.
Las Vegas, NV 89110
johnp@teamsters631.com

Kevin Hardison
7345 Rietz Can
Las Vegas, NV 89131
kevinandheather@embarqmail.com

Tommy Blitsch
10372 Kepler Cascades Street
Las Vegas, NV 89141
lvcubs23@gmail.com

Bruce Boyens
1326 S. Elizabeth St.
Denver, CO 80210
boyensb@aol.com

Mary Ann Campbell
13859 State Road E.
DeSoto, MO 63020
scdennis@aol.com

Matt Fitch
Merriman River Group
matt@merrmanriver.com

Maria Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com