September 11, 1996
VIA UPS OVERNIGHT
Charles R. Barshney
406 E. Sandhill Road
Derby, KS 67037
Charles Mosqueda, President
Teamsters Local Union 795
4921 Cessna Street
Wichita, KS 67210
Re: Election Office Case No. P-893-LU795-MOI
Gentlemen:
Charles R. Barshney, secretary-treasurer of Local Union 795, filed this protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Charles Mosqueda, Local Union 795 president. The protester alleges that he was “suddenly and without just cause terminated” from his employment as a Local Union 795 business agent on August 23, 1996.
Mr. Barshney states that “the termination was a direct result of my political support of president Ron Carey of the IBT” and bases his charge on events which occurred during the IBT Convention. His protest letter states that he “was continuely (sic) threatened by
Mr. Mosqueda to vote the way he did on each issue that came to the floor regardless of my own beliefs of the issues because my employment in Local 795 depended on it.”
Mr. Barshney claims that prior to the Convention, both he and Mr. Mosqueda were supporters of Mr. Carey. “After the second day of the Convention,” states Mr. Barshney, “he changed his mind.”
Mr. Mosqueda maintains that he fired Mr. Barshney for insubordination. He further states that he does not consider himself a supporter of Mr. Hoffa and is “still making up his mind” about Mr. Carey.
Charles Barshney
September 11, 1996
Page 1
The protest was investigated by Regional Coordinator Michael D. Gordon. Seven witnesses and 22 exhibits were examined in connection with this investigation.
On October 15, 1995, Local Union 795 held its local union officer election. Messrs. Mosqueda and Barshney ran as candidates on the same slate and were elected, as first-time officers, to their present positions. In addition, Steve Hadley was elected vice president and Tom Harmon as recording secretary.[1] Three new trustees were elected: John Edmondson, George Carlile and Chuck Nelson. Messrs. Mosqueda and Barshney serve as business agents, along with Charlie Peaster. The new office staff consisted of Tammy Walck and Marjorie Jordan. According to Articles 7 and 12 of the local union’s bylaws, the president is the principal officer of Local Union 795 and has the authority to hire and fire employees, including business agents.
For the period beginning October 15, 1996 and ending July 15, 1996, Messrs. Mosqueda and Barshney had at least seven arguments over local union issues. Mr. Barshney contends that Mr. Mosqueda threatened his job on each of these occasions. Mr. Mosqueda generally denies having done so.
In November 1995, Messrs. Barshney and Mosqueda disagreed over a $2,500 loan which Mr. Mosqueda arranged in Local Union 795’s name. Mr. Barshney contended that the loan had not been properly authorized. He also contends that, during a heated discussion in November, Mr. Mosqueda threatened to terminate Mr. Barshney as business agent.
In January 1996, two serious quarrels occurred between the two. The first concerned the propriety of expending funds in connection with the filing of charges against certain members of the previous union administration. Mr. Barshney claims that Mr. Mosqueda told him to take the disputed action “or else.” The second quarrel involved the method of financing union automobiles. Previously, Local Union 795 had paid a set amount per month for the use of individual cars. Mr. Mosqueda wanted Local Union 795 to change this policy and lease the automobiles directly. Mr. Barshney regarded Mr. Mosqueda’s plan as a personal concession to what Mr. Barshney believed to be Mr. Mosqueda’s poor credit rating.
Mr. Barshney claims that Mosqueda told him that he didn’t “need to be a B.A.” if he couldn’t agree with him.
Messrs. Barshney and Mosqueda were both successful candidates in Local Union 795’s delegate election in March 1996. They both ran on the slate which supported Mr. Carey. In April 1996 another verbal altercation took place. The subject was the settlement of a seniority merger problem. Mr. Barshney claims Mr. Mosqueda stated that he could not trust him unless he supported his decisions.
Charles Barshney
September 11, 1996
Page 1
In May 1996, another vigorous debate developed over the propriety of the procedure used to bring an internal charge against another Local Union 795 member. Again,
Mr. Barshney claims, Mr. Mosqueda referred to his inability to “trust” him in connection with this event.
Two other verbal debates arose between these two officers just prior to the Convention. In June 1996, Messrs. Mosqueda and Barshney found themselves on opposite sides of a question concerning the activities and expenses of two summer interns assigned by the IBT under its “Teamster Summer” program.[2] The program obligated participating “Teamster units” to provide these young people with housing and transportation. Mr. Barshney could not agree with Mr. Mosqueda on the amount of expenses that Mr. Mosqueda planned to incur for the interns.
A related dispute occurred concerning a trip that Mr. Mosqueda took to Omaha over the July 4 holiday. Mr. Barshney objected to the manner in which Mr. Mosqueda used union resources and that Mr. Mosqueda was accompanied on this trip by his wife and the summer interns. Mr. Mosqueda stated that the trip had a business purpose, a claim with which
Mr. Barshney completely disagreed.
The protester further states that he and Mr. Mosqueda clashed on several occasions at the Convention in Philadelphia. On the first day, July 15, 1996, a question was called concerning whether or not certain procedural rules which had governed the 1991 convention should remain in effect. Messrs. Mosqueda and Barshney voted on opposite sides.
Mr. Barshney claims that Mr. Mosqueda threatened him stating, “Wait ‘till I get you back to the local.” On the second day, July 16, 1996, Mr. Barshney states that he voted against a proposal to change the name of the IBT, a proposal introduced by Mr. Carey, who
Mr. Barshney supports for general president. Mr. Mosqueda supported this change. According to Mr. Barshney, Mr. Mosqueda threatened him again. Mr. Mosqueda denies that he made any threats at the Convention.
During the afternoon session of July 16, Mr. Mosqueda engaged in a colloquy with Mr. Carey as presiding officer on a point of order. Mr. Mosqueda’s point of order was in the form of a motion to designate microphones. “Let’s all[,] brother and sister and Chair[,] be heard,” Mr. Mosqueda said in support of his motion. His motion was ruled to be out of order by Mr. Carey. Mr. Mosqueda thereafter became somewhat disillusioned with the manner in which Mr. Carey chaired the Convention. During the investigation, he told the investigator:
“I supported Carey until July 18, when I got fired as a whip because I expressed unhappiness with the way Carey was conducting the Convention.”
Charles Barshney
September 11, 1996
Page 1
During the Convention, Mr. Mosqueda filed a protest, Mosqueda, CONV-39-IBT (August 6, 1996). In this protest, he alleged that (quoting from the decision):
(1) The committees convened at the Convention by the IBT were “stacked” with Carey supporters who did not tolerate contrary views; (2) The protester was “fired” from his position as an IBT whip for his failure to support all measures supported by
Mr. Carey and for his failure to lead pro-Carey chants from the floor; (3) The protester was “bumped and pushed around” by both Carey and Hoffa supporters in retaliation for his actions on the Convention floor, during the voting nomination process and inside the voting room; and (4) The protester was called a scab and booed by whips when he addressed a whip meeting on the morning of July 18, 1996.
Mr. Mosqueda also agreed to permit the Hoffa campaign to conduct an interview of him at the Convention. He understood that parts of this interview might be published or used in some way to advance Mr. Hoffa’s candidacy. The September 1996 issue of the Teamster magazine contains certain statements attributed to Mr. Mosqueda. These statements, located in the section reserved for Mr. Hoffa’s campaign materials, are quoted, in pertinent part, below:
When I came to the Convention, I was a total Carey supporter. I had contributed hundreds of dollars to his campaign, and was appointed to the Constitution Committee. I was honored, but I was soon shocked to discover that only Ron Carey’s proposals would be accepted by the Committee. This was not democracy - it was a stacked deck in favor of Carey . . . Ron Carey, as Chairman of the Convention, deliberately stole voice votes from the Hoffa delegates, who were a democratically-elected majority
. . . After what I saw in Philadelphia, I can no longer support Ron Carey.
Mr. Mosqueda also published an article in the August 1996 issue of Local Union 795’s newsletter, Teamster Talk, in which he was critical of the Convention. In that same newsletter, he stated that he did not “fit into either agenda, Hoffa or Carey” and that he would remain neutral in this race. He also spoke at a Hoffa rally against the manner in which the Convention was conducted. Mr. Mosqueda, despite his recent disenchantment, maintains that he is “still making up his mind about Carey.”
At the Convention, Mr. Mosqueda was nominated as a candidate for International trustee. He was not able to garner sufficient votes to be placed on the ballot, but
Mr. Barshney seconded his nomination, stating that Mr. Mosqueda “is neutral to all parties and refuses to play politics.”
Charles Barshney
September 11, 1996
Page 1
Upon their return from the Convention on July 23, 1996, the protester and
Mr. Mosqueda became embroiled in another controversy, this time concerning Convention expenses. As a result of this disagreement, Mr. Mosqueda presented Mr. Barshney with a “final warning letter” for insubordination and told him that any further incident would result in his termination as business agent. The two ultimately reconciled and the letter was withdrawn and destroyed.
Ms. Jordan states that Mr. Barshney told her that Mr. Mosqueda was stupid, a liar, an idiot, and that Mr. Barshney hated him. She also heard Mr. Barshney make similar comments to others. On August 22, 1996, Phil Young, president of Local Union 41 and Joint
Council 56, told Mr. Mosqueda that Mr. Barshney was speaking ill of him and that he had an internal problem that should be resolved.
On August 23, 1996, Mr. Mosqueda initiated a meeting with Mr. Barshney. During this meeting, he presented Mr. Barshney with a letter of termination. Several other persons were present, including Ms. Jordan and Mr. Peaster. Both state that Mr. Mosqueda gave
Mr. Barshney reasons for taking the action. At an Executive Board meeting on August 25, 1996, the minutes reflect that Mr. Barshney was terminated from his position as business agent for the following reasons:
(1) The procedure he used to make certain of his monetary payments were not consistent with those procedures prescribed by the International;
(2) A complaint from Lady Baltimore, an employer, concerning his handling of certain grievances;
(3) A complaint from Dillon’s, a retail grocer;
(4) Complaints from the secretaries reciting incidents of
Mr. Barshney contradicting Mr. Mosqueda’s specific instructions;
(5) Problems relating to room acquisition in Philadelphia and lodging for the summer interns;
(6) The July 23 incident regarding Convention expenses;
(7) The disclosing by Mr. Barshney of confidential union business to persons outside the union;
(8) The refusal of Mr. Barshney to sign certain checks, his approval of certain arbitrations without Mr. Mosqueda’s consent and his working of limited hours;
(9) The many arguments which took place in the office; and
(10) Mr. Mosqueda’s belief that Mr. Barshney was trying to usurp Mr. Mosqueda’s authority.
The minutes of this meeting further reflect that Mr. Barshney was allowed to rebut these allegations at the Executive Board meeting.
Charles Barshney
September 11, 1996
Page 1
The Executive Board, after some discussion, ultimately agreed that Mr. Mosqueda had the authority to terminate Mr. Barshney. Despite this affirmation of his authority,
Mr. Mosqueda called another Executive Board meeting by telephone on August 27, 1996 to present the testimony of the office secretaries. Both secretaries stated that they observed considerable tension in the office and that Mr. Barshney made negative comments about
Mr. Mosqueda. Ms. Jordan stated that she did not think that the two were capable of working together harmoniously as employees. Mr. Mosqueda was not on the telephone line at the time these statements were heard. The Board, based on what was to them new information, unanimously decided that Mr. Barshney’s termination was justified. Mr. Barshney was informed of this action by letter dated August 29, 1996.
Article VIII, Section 11(f) of the Rules prohibits any retaliation against anyone by the union or its agents for exercising any right guaranteed by the Rules.[3] The Election Officer will not find retaliation if she concludes that the union officer or entity would have taken the same action, even in the absence of the protester’s protected conduct. See Gilmartin, P-032-LU245-PNJ (January 5, 1996), aff’d, 95 - Elec. App. - 75 (KC) (February 6, 1996); Leal,
P-051-IBT-CSF (October 3, 1995) aff’d, 95 - Elec. App. - 30 (KC) (October 30, 1995); Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995); Cf., Wright Line, 251 NLRB 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982). The Election Officer has determined that “it is not a violation of the Rules to remove a member from an appointed position if there was a basis for doing so independent of the election process.” Wsol, supra.
The Rules and these applicable principles require the establishment of three elements before any allegation of retaliation can be sustained:
(1) A showing that the protester was engaged in an activity protected by the Rules;
(2) A showing that the charged party had actual or constructive knowledge that the protester was so engaged; and
(3) The activity which is protected by the Rules was a motivating factor in causing the adverse action.
Charles Barshney
September 11, 1996
Page 1
No violation of the Rules at Article VIII, Section 11(f) can be sustained unless some evidence is presented or disclosed which expressly or inferentially connects the conduct which is alleged to be improper to an activity protected by the Rules. Giacumbo, P-100-IBT-PNJ (October 13, 1995); Salucci, P-178-LU552-MOI (October 31,1995).
The first two elements of this test are satisfied by the evidence presented.
Mr. Mosqueda cannot dispute that he had knowledge that Mr. Barshney actively supported Mr. Carey’s candidacy for general president. However, there is no evidence establishing the existence of the third element. Mr. Barshney has not submitted any evidence to show that his termination was motivated by an improper purpose on the part of Mr. Mosqueda, within the meaning of Article VIII, Section 11(f) of the Rules. Nor did the investigation disclose any such evidence.
The initial seven disagreements between Messrs. Barshney and Mosqueda, all occurring prior to the Convention, demonstrate that Messrs. Barshney and Mosqueda had a great deal of difficulty functioning together as employees of the local union. The subjects of these disagreements do not involve any issues related to the International election. Rather, they concerned the internal financial and procedural operations of Local Union 795. There is no connection between these disputes and any of the rights protected by the Rules.
Similarly, the interaction between Messrs. Barshney and Mosqueda during the Convention does not establish this connection. Under the Consent Decree, the Election Officer has exclusive jurisdiction over the IBT’s rank-and-file elections to select delegates and alternate delegates to the Convention and to select International officers from among candidates nominated at that Convention. She does not, however, preside over any other business at the Convention. Moerler, CONV-2-LU63-CLA (June 22, 1991). Moreover, the Election Officer has consistently declined to extend her jurisdiction under the Consent Decree to substantive issues concerning how the union should be organized and run. Such matters are internal union matters outside the scope of the Rules. Szymanski, CONV-9-IBT et seq.
(July 16, 1995).
Mr. Barshney claims that Mr. Mosqueda threatened him with job-related consequences on two separate issues at the Convention, the vote on the adoption of the rules and the question of the IBT name change. Mr. Mosqueda denies making these threats. However, questions concerning which rules should govern the Convention or what the name of the union should be are strictly internal. These matters do not concern the types of issues over which the Election Officer has any authority. Unless connected to protected activity under the Rules, these threats cannot form the basis for a conclusion that Mr. Barshney’s termination was improperly motivated.
The evidence is insufficient to find that any preference Mr. Mosqueda has for
Mr. Hoffa in the International election motivated him to terminate an employee holding opposing views. The very thrust of Mr. Barshney’s claim, that Mr. Mosqueda’s action in terminating Mr. Barshney was motivated by his support for Mr. Hoffa, is not supported by the evidence.
Charles Barshney
September 11, 1996
Page 1
The Election Officer finds that Messrs. Barshney and Mosqueda engaged in a heated argument over the propriety of Convention expenses. On this occasion, the parties seemed to satisfactorily resolve their source of friction. This apparent truce broke down when
Mr. Barshney’s comments reflecting his general dislike for Mr. Mosqueda and his dissatisfaction for some of his actions as a union officer came to the attention of
Mr. Mosqueda.
The Election Officer further finds that at the meeting on August 23, Mr. Barshney was presented with certain reasons for his termination, including the July 23 dispute,
Mr. Barshney’s disclosing of confidential information and the many arguments that occurred. The Election Officer concludes that it was reasonable for Mr. Mosqueda to decide that a productive working relationship with Mr. Barshney was not possible, in light of the statements he recently made about him. Given the history of the relations between these two union officers over the period of the previous 10 months and the lack of any evidence connecting Mr. Barshney’s termination to an election related right, the Election Officer also concludes that timing of Mr. Barshney’s discharge is not indicative of an improper motive.
There is substantial evidence here that the two principal officers of Local Union 795 have, for a significant period of time, pre-dating the Convention and thereafter, clashed regularly on various internal issues. The Election Officer concludes that these disputes caused Mr. Barshney’s termination. Mr. Barshney’s discharge was not improperly motivated within the meaning of the Rules at Article VIII, Section 11(f).
Accordingly, the protest is DENIED.
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 & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Charles Barshney
September 11, 1996
Page 1
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, Pennsylvania Convention Center, Room 204, Facsimile (202) 418-2426. A copy of the protest must accompany the request for a hearing.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Michael D. Gordon, Regional Coordinator
[1]Mr. Harmon resigned prior to the first meeting of the Executive Board. He was replaced by Ray Lamagna.
[2]Through this program, young men and women from Teamster families served as summer interns, working with local unions to build voter registration and political involvement among IBT members.
[3]Article VIII, Section 11(f) of the Rules states:
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 for exercising any right guaranteed by this or any other Article of the Rules is prohibited.