OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: ROBERT GONZALEZ, ) Protest Decision 2011 ESD 273
) Issued: June 3, 2011
Protestor. ) OES Case No. P-092-012111-NE
____________________________________)
Robert Gonzalez, member of Local Union 805, 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 Local Union 805 president Sandy Pope impermissibly retaliated against Gonzalez for activity protected by the Rules.
Election Supervisor representative Peter V. Marks, Sr., investigated this protest.
Findings of Fact
Local Union 805 is entitled to one delegate and one alternate delegate to the IBT convention. At its nominations meeting conducted January 23, 2011, two candidates were nominated for each position. Pope, principal officer of the local union and candidate for IBT General President, was nominated for delegate on the Sandy Pope Team slate with alternate delegate candidate Joe Garcia. Mario Peralta was nominated for delegate with alternate delegate candidate Gonzalez on the Take Back Local 805 slate. The Pope slate candidates defeated their opponents in the Peralta slate by identical margins of 278 to 130.
Pope has been president and principal officer of Local Union 805 since 2004 and has been twice re-elected to that position. She was elected as Local Union 805’s delegate to the 2006 IBT convention and again in the current cycle.
Protestor Gonzalez is a long-time employee of Harold Levinson Associates (HLA), an employer under contract with Local Union 805. In addition, he formerly held the position of local union recording secretary and has been a political opponent of Pope since at least 2004. In 2006, he ran for alternate delegate on a slate with Yanko Fuentes, which lost to Pope’s slate. Gonzalez was implicated in and eventually admitted participating in a scheme to collect voted ballots and assist members in filling out their ballots in that election, in violation of the Rules. Pope, 2006 ESD 316 (June 30, 2006).
Joe Garcia is a business agent for the local union and is not a member of the elected local union executive board. Among his responsibilities is servicing the contract at HLA, where Gonzalez is employed.
On July 13, 2010, local union business agent Joe Garcia was conducting union business at HLA. Investigation showed that on that occasion, an incident occurred between protestor Gonzalez and Garcia. Garcia alleged that Gonzalez verbally assaulted and insulted him. At a point during the incident, Garcia placed a phone call to the local union hall, where local union staff members heard a portion of the exchange between Gonzalez and Garcia and reduced it to a signed writing as follows:
Garcia: Get out of my face, Bobby.
Gonzalez: [Yelling] You are a piece of shit. Fuck you.
Garcia: What did you say?
Gonzalez: I am going to kick your ass.
Garcia: Don’t threaten me.
Gonzalez: Fuck you. Get out of here.
Garcia: You are not my boss.
Gonzalez: Fuck you.
Garcia: You motherfucker spit on my face. That’s all you can do?
Gonzalez: Fuck you, your family and your mother, fuck you. Come outside
so I could kick your ass.
Garcia: You going to bring my family into this, you low down
motherfucker.
Gonzalez: You fucking queer.
Garcia: You calling me a queer. I am more man than you. You are the
queer.
The next day, July 14, 2010, HLA assistant general manager Chris Hatzfield issued a warning letter to protestor Gonzalez, viz.
On July 13th you got into a heated argument in the receiving warehouse with Joe Garcia the Business Agent from Local 805. You became so enraged that you had to be restrained by your coworkers. This is not the first time that this has happened. At the last union negotiating committee meeting, Sandy Pope President of Local 805 told me that you got into a similar heated exchange. This is a place of business and this unprofessional behavior on your part is totally unacceptable. The company has zero tolerance policy for this type of behavior. If you cannot express and settle any differences you have with Local 805 on an adult level by going through proper channels, you do not belong in this company. If there are any future occurrences of this type of behavior, I will have no choice but to suspend you immediately.
Gonzalez responded to Hatzfield’s warning letter the same day, denying that he had been enraged, that he had been restrained by co-workers, and that he had engaged in unprofessional behavior. Although Gonzalez’ response threatened to file a grievance, investigation showed no grievance was filed.
Business agent Garcia filed a police report with the Suffolk County Police Department and stated his intention to file internal union charges against Gonzalez for his threatening and abusive behavior.
Gerry Whelan, defeated by Pope for local union president in 2004, attempted to broker a resolution of the dispute between Gonzalez and Garcia. The outline of the resolution Whelan advanced was that Garcia would not proceed on the internal union charges and Gonzalez would apologize for his conduct and not run in the local union officer election. Whelan presented the proposal to Pope. Pope stated she could not consider the resolution for two reasons: Garcia alone had the right to file his charges, if he saw fit, and Pope could not waive those charges for Garcia; and she did not believe it was proper to have Gonzalez forfeit his right to run as a candidate as part of any settlement. Garcia said he spoke with Whelan about the matter but not to resolve it.
Nonetheless, in an attempt to head off the internal union charges, Gonzalez submitted a signed letter to Pope and Garcia on July 24, 2010 stating the following:
Please accept this letter as an apology for my conduct during HLA Contract Negotiations.
As you know my knowledge of 805’s Pension and Welfare Benefits is well above average.
My conduct was the result of my passion for justice and honesty.
I am approaching my 25th year of Union service and I ask that you review my history as Local Union 805’s Recording Secretary with the Executive Board and my time as a Trustee on the Pension and Welfare Board.
With that said, I ask for forgiveness and bid you farewell after a long prosperous and passionate 25 years, “Bobby”
Garcia apparently was unmoved by this apology. The minutes of the local union executive board meeting held August 11, 2010 recorded the following:
The Local Union 805 Executive Board discussed Harold Levinson member Robert “Bobby” Gonzalez apology letter to Local Union 805 Business Agent Joe Garcia, and the Executive Board for his behavior. Business Agent Joe Garcia will be bringing charges against member Robert “Bobby” Gonzalez as the Local Union 805 By-laws states in Section 21.
Local Union 805 conducted its officers election in Fall 2010. At the nominations meeting held October 14, 2010, Pope was nominated for re-election to the president’s position, and a full slate of candidates were nominated for the other elected positions. Mario Peralta intended to run for president on a slate opposing Pope’s slate, and Gonzalez was to be part of that slate. However, Peralta and the other slate members were late to the nominations meeting, citing inclement weather, and nominations were closed by the time they arrived. Gonzalez, who was present when the meeting convened, was nominated for president in place of Peralta and was the only candidate nominated in opposition to Pope or her slate. Pope defeated Gonzalez in the election for local union president; the remaining members of Pope’s slate were elected by white ballot.
On January 6, 2011, business agent Garcia lodged the internal union charges he had earlier indicated an intent to file against Gonzalez for the July 13, 2010 incident. The charges alleged that Gonzalez assaulted Garcia, threatened Garcia with physical harm, and used vulgar and degrading language toward Garcia and his family. The charges asserted that Gonzalez’ alleged conduct was part of “a long history of using verbal and physical intimidation against Local 805 Union Representatives. It’s about time to put an end to this.” The charges claimed that Gonzalez’ conduct violated his oath not to bring reproach upon the local union, not to knowingly harm another member, and not to interfere with the union’s performance of its legal or contractual obligations.
On January 14, 2011, local union secretary-treasurer Peter Cotaj forwarded Garcia’s charges to Gonzalez by certified mail and gave notice of a hearing to take place on February 3. Gonzalez received the certified letter on January 18 and filed this protest on January 20.
Although the charges were filed by Garcia, the protest alleged “that Pope is retaliating, through the charging Local 805 Business Agent, against my forthcoming candidacy in the delegates election.” Gonzalez claimed that “it is completely implausible Pope did not anticipate my candidacy,” because Gonzalez had run against her or a member of her slate in every local union officers and delegate election dating to 2004. Gonzalez further asserted that the substance of the internal union charges concerned his conduct on July 13, 2010, but retaliation was indicated by their filing just before the January 23, 2011 nominations meeting. At the time the charges were filed, Gonzalez had not announced his candidacy in the delegates election, but he said that members employed at HLA knew he would run.
Garcia stated that he did not lodge his charges against Gonzalez immediately after the July 2010 incident because negotiations for a successor collective bargaining at HLA contract were reaching a conclusion and the local union officers election was at hand, and he did not want the charges to be an issue in either. After the HLA contract was ratified and the results of the local union election were certified, he prepared the charges and filed them in early January 2011. He denied that Pope directed or encouraged him to proceed with the charges.
Hearing on the charges was set for February 3. After the protest was filed, the hearing was adjourned without date.
Article XIX, Section 7(a) of the IBT constitution sets a five-year limitations period for bringing internal charges of misconduct against a member.
Analysis
Article VII, Section 12(g) of the Rules prohibits “[r]etaliation 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.” Gonzalez contends that Garcia’s filing of internal charges against him was to retaliate against him for his anticipated candidacy in the delegates election.
To prevail on a claim of retaliation, the protestor must show that he engaged in activity protected by the Rules and that such protected activity was a motivating factor in the adverse decision or conduct in dispute. 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).
Because of our resolution of the ultimate issue in this case, we need not resolve Gonzalez’ claim that he satisfies the protected activity element of his burden because his candidacy for alternate delegate was anticipated as of January 2011 although he had not made any public announcement. We find that Garcia’s charges were directly related to and motivated by Gonzalez’ conduct at HLA on July 13, 2010, conduct that Gonzalez admitted was inappropriate and apologized for in his July 24 letter.[1] Although Garcia deferred filing his charges until January 2011, he expressed his intention to file the charges at the time of or shortly after the incident and well before the delegates election and any participation by Gonzalez in it. Garcia adequately explained his reasons for waiting until January 2011 to file the charges. We further find that Pope played no role in Garcia’s decision to file the charges.
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, NY 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.
[1] Further proof that Gonzalez recognized his conduct was inappropriate was his failure to grieve the warning management issued, despite his stated intention to do so.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2011 ESD 273DISTRIBUTION 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
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
Robert Gonzalez
165 Grand Boulevard
Brentwood, NY 11717
juniorgee3@hotmail.com
Joe Garcia
Teamsters Local Union 805
44-61 11th Street, 3rd floor
Long Island City, NY 11101
Sandy Pope, President
Teamsters Local Union 805
44-61 11th Street, 3rd floor
Long Island City, NY 11101
sandypope@teamsterslocal805.org
Peter V. Marks, Sr.
116 Nagle Street
Harrisburg, PA 17104
pvmsresq@comcast.net
David F. Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com
Maria S. 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