September 27, 1996
VIA UPS OVERNIGHT
Gilbert Morales
September 27, 1996
Page 1
Gilbert Morales
15325 Tropic Court #36
San Leandro, CA 94579
Bill Rose
Waste Management
172 98th Avenue
Oakland, CA 94603
Chuck Mack, Secretary-Treasurer
Teamsters Local Union 70
70 Hegenberger Road
Oakland, CA 94621
Gilbert Morales
September 27, 1996
Page 1
Re: Election Office Case No. P-947-LU70-CSF
Gentlemen:
A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by
Gilbert Morales, a member of Local Union 70, against Bill Rose, Mr. Morales’ manager at Waste Management in Oakland, California, and Chuck Mack, secretary-treasurer of Local Union 70 and a candidate for International vice president on the Jim Hoffa-No Dues Increase-25-& Out slate. Specifically, the protester alleges that Mr. Rose improperly deducted five days of Mr. Morales’ accumulated, paid sick leave for the time Mr. Morales spent at the IBT Convention serving as a sergeant-at-arms.[1] The protester states that he informed both his employer and his local union of his plans to attend the Convention.
Gilbert Morales
September 27, 1996
Page 1
In regard to Local Union 70, the protester asserts that he is “on the opposing side of our local union leadership goals.”[2] Mr. Morales claims he is being “harassed and discriminated against for my political views,” pointing to the deduction of sick leave as evidence. In an interview with the Election Officer’s representative, Mr. Morales stated that the local union’s business agents have done nothing for him and are “out to get him” due to his support for the Carey slate and his opposition to Mr. Mack in the last election of officers and delegates in Local Union 70.
Regional Coordinator Matthew D. Ross investigated this protest.
Article VIII, Section 11(f) of the Rules prohibits “retaliation or threat of retaliation” by any person or entity, including local unions and employers, against a union member “for exercising any right guaranteed by this or any other Article.” To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the adverse decision or conduct in dispute. The Election Officer will not find retaliation if she concludes that the charged party would have taken the same action even in the absence of the protester’s protected conduct. See Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec.
App. - 17 (KC) (October 10, 1995).
The Election Officer’s investigation shows that Local Union 70 filed a grievance on behalf of Mr. Morales over the five days of sick leave deducted by Waste Management for the time the protester spent at the Convention. According to both Mr. Mack and Mr. Morales, the union settled the grievance with the understanding that Waste Management would restore the sick days to Mr. Morales’ “bank” as soon as the protester returned the check he received for the five days’ paid leave.
Mr. Morales, however, told the investigator that he has spent this money and is unable to return it at the present time. He believes that the company should restore the sick days and not pay him for the next five days of sick leave that he uses.
The protester has submitted no evidence that either Mr. Rose or Mr. Mack retaliated against him or harassed him for exercising any of his rights guaranteed under the Rules. There is no indication that Mr. Rose had any knowledge of Mr. Morales’ political views or his opposition to the local union leadership. See Mango et al., P-673-LU726-CHI et seq.
(May 29, 1996).
Furthermore, the record shows that the local union promptly filed a grievance in
Mr. Morales’ behalf concerning the deduction of his sick days. Mr. Morales does not claim that the union represented him inadequately or that the settlement is unfair, only that he is unable to comply with the agreement because he does not have the money. See Miller, P-504-LU147-MOI (April 23, 1996).
Article XIV, Section 1 of the Rules places the burden on the complainants “to present evidence that a violation has occurred.” Further, the Election Appeals Master has stated that the protester bears the initial burden of proof to offer evidence substantiating his allegations. In Re: Chentnik, 95 - Elec. App. - 52 (KC) (January 10, 1996).
Gilbert Morales
September 27, 1996
Page 1
The Election Officer takes seriously any allegation of retaliation. In the instant protest, however, the evidence does not support the allegation.
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
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 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
Matthew D. Ross, Regional Coordinator
[1]Mr. Morales was appointed to this position by the International union.
[2]Mr. Morales was an unsuccessful candidate for delegate in Local Union 70.