Protest Decisions

December 11, 1995

VIA UPS OVERNIGHT

Gary Thibeault

December 11, 1995

Page 1

Gary Thibeault

December 11, 1995

Page 1

Re:  Election Office Case No. P-236-LU1150-ENG

Gentlepersons:

A pre-election protest was filed pursuant to the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Gary Thibeault, a member of Local Union 1150 and candidate for delegate.  The protester alleges that Jack Powers, secretary-treasurer of Local Union 1150 and a candidate for delegate, reported the protester's receipt of a campaign-related facsimile transmission on an employer fax machine to Sikorsky Aircraft (“Sikorsky”), Mr. Thibeault's employer, in retaliation for the protester's political activities.

Bruce Peters, president of Local Union 1150 and a member of Mr. Jackson's delegate candidate slate, responds that no one from the local union contacted Sikorsky regarding the fax received by Mr. Thibeault.  Mr. Peters contends that the protester drew the employer's attention to his receipt of the fax by publicly “ranting and raving” about the contents of the transmission to his steward at the Sikorsky work site.  According to Mr. Peters, the protester incurred employer censure through his own actions.

The protest was investigated by Associate Regional Coordinator David F. Reilly.

Gary Thibeault

December 11, 1995

Page 1

Article VIII, Section 11(a) of the Rules declares that all local union members retain the right to participate in campaign activities, including the right to run for office. The Rules also prohibit retaliation for exercising any right guaranteed under the Rules.  Article VIII,

Section 11(f).

The investigation disclosed that on November 3, 1995, Associate Regional Coordinator David Reilly sent via facsimile transmission a draft of the ballot to be used in Local

Union 1150's upcoming delegate election to Mr. Thibeault at Sikorsky.[1]  Mr. Thibeault is a delegate candidate who considers himself running in opposition to Mr. Powers.  On

November 7, 1995, Mr. Thibeault received an Employee Memorandum from Sikorsky that stated, “You are warned for utilizing Company Equipment for personal use and misusing work time on Friday, November 3, 1995.  Any similar recurrence will result in further disciplinary action.”  On November 20, 1995, Mr. Thibeault filed a grievance with his employer to protest this discipline.  Mr. Peters is currently representing the protester in the grievance filed over the disciplinary notice from Sikorsky.

While Mr. Peters claims that, to his knowledge, no agent of the local union made the employer aware of Mr. Thibeault’s receipt of the fax, Ted Garbian, head of the Human Resources office at Sikorsky, contradicts this statement.  Mr. Garbian reviewed notes he made regarding the incident that led Sikorsky to discipline the protester, and indicated that he received explicit notice from the local union that Mr. Thibeault had received the fax.  The notes indicated that this information was relayed by Mr. Peters.

Given this evidence, Mr. Peters’ claims that the local union played no part in eliciting Mr. Thibeault’s discipline is not credible.  There is no evidence that Mr. Garbian had any motive to fabricate his notes or lie to the investigator, nor does it appear that he bears any specific animus towards the protester.  In fact, Mr. Garbian described the protester as a model employee with a clean record.  According to Mr. Garbian, he recommended a warning, instead of a more severe penalty, because of Mr. Thibeault’s past performance and the minor nature of the offense.  On the other hand, Mr. Peters, a member of a slate of candidates in opposition to the protester, had a strong motive to deny an act which appears on its face to be retaliatory and involves informing on a local union member to an employer.

As a result of this evidence, the Election Officer concludes that Mr. Peters used the event of a communication between the Associate Regional Coordinator and a delegate candidate to retaliate against a candidate.  Each candidate has a right of access to the Election Officer or her regional representative.  To use such a communication to interfere with a candidate’s livelihood is an unconscionable attack on a candidate’s ability to exercise rights

Gary Thibeault

December 11, 1995

Page 1

guaranteed under the Rules because of the chilling effect such activity would have on rank-and-file participation.[2] 

The Election Officer is also concerned that the discipline taken against the protester by Sikorsky arose from a legitimate communication from the Election Officer’s representative.  The parties have advised the Election Officer that the protester is currently pursuing a grievance regarding this discipline and is being represented by Mr. Powers.  Based upon these facts, the Election Officer has determined to defer any decision regarding the underlying discipline or the representation of the protester in the grievance process until the conclusion of the grievance procedure pursuant to the collective bargaining agreement.  The Election Officer has, pursuant to the Rules, jurisdiction and authority to determine these issues on their merits.  Further, the Election Officer is not bound, in whole or in part, by the decision reached in the grievance proceedings or by the findings of fact and conclusions of law made during the grievance process.  See Golubovic, P-025-LU710-CHI (July 21, 1995).  Mr. Thibeault is advised to inform the Election Officer of the outcome of this matter following completion of the grievance procedure under the collective bargaining agreement.

Based upon the foregoing, the protest is GRANTED as to the allegation of retaliatory conduct, and DEFERRED as to the pending grievance.

When the Election Officer determines that the Rules have been violated, she “may take whatever remedial action is appropriate.”  Article XIV, Section 4.  The Rules provide a wide range of examples of possible remedies, without providing any limitation.  The broad scope of her supervisory responsibility for the elections, as recognized by the Consent Decree and subsequent decisions of the Court, gives the Election Officer substantial discretion in formulating a remedy to fit the particular violation.  In fashioning the appropriate remedy, the Election Officer looks to such factors as the nature and seriousness of the violation, the violations’s potential for interfering with the election process, and which remedy will best protect the rights of members to a free and fair election.

Conduct which inhibits a member’s ability to communicate with the Election Officer or her agents, or which punishes members for engaging in such communication, is particularly egregious because it undermines the Election Officer’s mission as established by the Consent Decree.  United States of America v. Int’l Bhd. Of Teamsters, et al., No. 88 Civ. 4486 (D.N.E.) (S.D.N.Y. March 14, 1989).

Gary Thibeault

December 11, 1995

Page 1

As a result, the Election Officer hereby orders that the agents of Local Union 1150 immediately cease and desist from engaging in retaliatory conduct relating to the delegate or International officer elections.  Further, Mr. Peters is ordered to sign the enclosed notice and ensure that copies of this notice are posted on all bulletin boards where official notices of the union are regularly posted, including, but not limited to, all work-site bulletin boards, and any bulletin board in the main or any subsidiary local union hall.  These copies must be posted within seven (7) days of the issuance of this decision.  Within two (2) days of this posting, the local union will file with the Election Officer an affidavit indicating compliance.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Latham and Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:               Kenneth Conboy, Election Appeals Master

David F. Reilly, Associate Regional Coordinator

Notice to Members of

Teamsters Local Union 1150

You have the right to participate in campaign activities on behalf of any candidate for International office in the IBT.

You have the right to participate in campaign activities on behalf of any candidate for delegate to the 1996 IBT International Convention.

You have the right to communicate with the Office of the Election Officer or a regional representative of the Election Officer without interference or retaliation from any officer or agent of Local Union 1150.

It is a violation of the Election rules for any Local Union Officer or IBT member to threaten, coerce, intimidate, or harass a member because they exercise rights guaranteed under the Election Rules.

Local Union 1150 has been ordered by the Election Officer to cease and desist from engaging in retaliatory conduct relating to the delegate or International officer elections.  Local Union 1150 will not interfere with the exercising of any of these rights as set forth in the Rules for the 1995-1996 IBT International Union Delegate and Officer Election.

_____________________________

Bruce Peters

President, Local Union 1150

This is an Official Notice and must remain posted for thirty (30) consecutive days from the day of the posting, and must not be altered, defaced or covered by any other material.

Prepared and Approved by IBT Election Officer Barbara Zack Quindel.