Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: MICHAEL R. MILLER,                 )           Protest Decision 2016 ESD 289

                                                                        )           Issued: September 23, 2016

            Protestor.                                            )           OES Case No. P-279-050416-MW   

____________________________________)                      

Michael R. Miller, member of Local Union 705, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that he was removed from his appointed steward position in retaliation for his candidacy in the local union delegates and alternate delegates election.

            Election Supervisor representative Joe Childers investigated this protest.

Findings of Fact

            Protestor Miller was an unsuccessful candidate for delegate on the U.S. TEAMSTERS DUMP HOFFA SLATE.  He has been employed at ABF Systems Freight, Inc. (“ABF”) since 1999.  In April 2014, Miller lost a steward election to George Creamer by a margin of 30-3.  After the election, and during the previous term of Juan Campos as local union principal officer, Miller was appointed steward at his workplace by Greg Foster, local union vice president.  Miller remained as steward until his removal by Campos in April 2016.  Miller’s protest alleged that his removal as steward was in retaliation for his candidacy as delegate on the slate opposing the incumbent slate headed by Campos, the Moving Forward Slate.

            The local union denied the retaliation allegation, asserting that the removal of Miller was required by an order of Joint Council 25 requiring that substantially all appointed stewards be removed from their positions.  The circumstances giving rise to the joint council’s decision were put in motion in August 2014, when Local Union 705 member Chris Delvecchio appealed to the joint council a decision of the local union that permitted appointment of stewards; Delvecchio asserted in his appeal that local union bylaws required that stewards be elected.  In a decision handed down in August 2015, the joint council agreed, holding, “To the extent Local 705’s principal executive officer has appointed stewards in inadvertent violation of Section 13(8), those appointments were not authorized by the Bylaws and are ineffective.”  Local Union 705 appealed the joint council’s decision to the IBT and requested a stay, but later withdrew the appeal.

As a result of the joint council’s decision, principal officer Campos began removing stewards who were appointed to office.  In April 2016, thirteen appointed stewards, including Miller, were removed from their positions.  While the decision of the joint council permitted an exception for stewards who had been appointed as replacement stewards where fewer than 12 months remained until the next steward election, Miller was not appointed as a replacement steward and the exception did not apply to his position.  Accordingly, he was removed from his steward position.

            Jim Carroll, a candidate for delegate on the same slate Miller ran on, told our investigator that at the regular monthly membership meeting of Local Union 705 held May 20, 2016, the day after the ballot count in the delegates election, principal officer Campos informed the membership that a protest had been filed challenging the removal of a steward and claiming that it was political retaliation.  Campos then attempted to refute the allegation by asking all stewards present who had been removed to stand and publicly state which slate they supported in the delegates election.  Carroll told our investigator that several members stood and publicly announced they had supported Campos’s Moving Forward Slate and were removed from their appointive stewards positions nonetheless.

Analysis

            Article VII, Section 12(g) of the Rules prohibits “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. To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the decision or the 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 protected conduct.  See Miner, 2005 ESD 1 (May 27, 2005); see also, Gilmartin, P32 (January 5, 1996), Leal, P51 (October 3, 1995), aff’d, 95 EAM 30 (October 30, 1995); Wsol, P95 (September 20, 1995), aff'd, 95 EAM 17 (October 10, 1995). Cf., Wright Line, 251 NLRB 1083 (1980), enf'd, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982).

The evidence presented here does not support the claim of retaliation by Campos as principal officer against protestor Miller.  Rather, we find that the action removing Miller as appointed steward at ABF was required by the decision of Joint Council 25 and was therefore unrelated to Miller’s delegate candidacy.

            Accordingly, we DENY this 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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2016 ESD 289

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