Protest Decisions

              November 6, 1996

VIA UPS OVERNIGHT

Marvin Stroud & Tim McDaniel

November 6, 1996

Page 1

Marvin Stroud

2011 Meadow Wind Court

Elvereta, CA  95626

Tim McDaniel

10038 Biscayne Woods Way

Sacramento, CA  95827

Cliff Webb, Secretary-Treasurer

Teamsters Local Union 150

7120 East Parkway

Sacramento, CA  95823

David Lowman

Teamsters Local Union 150

7120 East Parkway

Sacramento, CA  95823

Steve Combs, Transportation Manager

Allied-Sysco

3960 Channel Drive

West Sacramento, CA  95691

Marvin Stroud & Tim McDaniel

November 6, 1996

Page 1

Re:  Election Office Case No. P-1121-LU150-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

Marvin Stroud and Tim McDaniel, members of Local Union 150.  The protesters allege that Local Union 150 Business Agent Dave Lowman falsely and maliciously accused them of campaigning on work time to Allied-Sysco, their employer, and that, in response, agents of Allied-Sysco interrogated them.  The protesters assert that the actions of Mr. Lowman and Allied-Sysco amount to retaliation because of their political affiliations, in violation of the Rules.

Mr. Lowman denies making accusations about the conduct of the protesters to the employer. 

Marvin Stroud & Tim McDaniel

November 6, 1996

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Warren St. Denis, the employer’s vice president for transportation, states that the investigation of the protesters activities occurred because of “rumors” of campaigning on work time that reached him.  He stated that he could not remember the source of the rumors. 

Mr. St. Denis states that after a short investigation the protesters were cleared of any wrongdoing by the employer.

Regional Coordinator Matthew D. Ross investigated the protest.

The protesters are shuttle drivers out of the employer’s West Sac, California facility.  They both support Ron Carey for reelection as general president.  Mr. Lowman is a supporter of James P. Hoffa for general president.  He ran unsuccessfully on the local union’s pro-Hoffa delegate slate.

The investigation revealed that on October 3, 1996 Mr. Lowman arrived at the protesters’ work site in West Sac, California to conduct a vote among the bargaining unit employees on the proposed terms of a settlement of a grievance filed by Mr. McDaniel.  The proposal was accepted and Mr. Lowman contacted Mr. St. Denis to determine the amount of back pay owed to Mr. McDaniel.  Later that day, Mr. Lowman called Mr. McDaniel to report the result of this conversation.

That same day, Mr. Lowman accused Mr. McDaniel of removing or covering up pro-Hoffa stickers and signs on utility poles and other locations.  Mr. Lowman told Mr. McDaniel that another Local Union 150 member had witnessed him removing or obscuring the material.

On October 7, 1996, Steve Combs, a supervisor at Allied-Sysco, called Mr. McDaniel into his office and accused him and Mr. Stroud of stopping between West Sac and Fremont to post signs or stickers at locations or on routes used by other Teamsters.  Mr. McDaniel denied these accusations and suggested the employer check his truck’s onboard computer that registers trip data such as stops, starts, and mileage.  Mr. Combs checked the computer in

Mr. McDaniel’s presence and stated that he found nothing to indicate improper stops en route.  He told Mr. McDaniel that he was satisfied with this data and with Mr. McDaniel’s denial, and intended to drop the matter.

When Mr. Stroud arrived for his shift later in the day, Mr. McDaniel reported the incident in Mr. Combs’ office.  The two went to the office where Mr. Combs told them that Mr. Stroud’s computer also did not indicate improper use of the company vehicle and that the matter was concluded as far as he was concerned.

Angry that such an accusation had been made against him, Mr. Stroud contacted

Liz DiBartolo, the employer’s human resources director, and Mr. St. Denis’ superior,

Les Wong, to determine who had made the accusation.  No agent of the employer would give him this information.  According to Mr. Stroud, Ms. DiBartolo informed him that the company would not release the information concerning who had made the accusations investigated by Mr. Combs. 

The protesters believe that Mr. Lowman made the accusations when he spoke with

Marvin Stroud & Tim McDaniel

November 6, 1996

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Mr. St. Denis on October 3, 1996.  Mr. McDaniel states that he was off October 3 through 5 and returned to work on the evening of October 6, 1996.  According to Mr. McDaniel, the first opportunity for Mr. Combs to speak to him after the conversation between

Messrs. Lowman and St. Denis occurred on October 7, 1996.

Mr. St. Denis states that he directed Mr. Combs to conduct an investigation because he had heard rumors that unspecified employees were campaigning on employer time.  He states that he did not tell Mr. Combs who to interview.

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.[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).  These provisions and the principles which the Election Officer has developed pursuant to them 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.

In prior cases, the Election Officer has considered allegations of interference with employment by a local union.  In Thibeault, P-236-LU1150-ENG (December 11, 1996), the Election Officer determined that a local union president reported a disciplinary infraction to a member’s employer in order to retaliate against the member for communicating with an agent of the Election Officer.  In that case, the Election Officer stated:

Marvin Stroud & Tim McDaniel

November 6, 1996

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

In Thibeault, P-898-LU1150-ENG (October 4, 1996), the Election Officer determined that a union steward made allegations to the employer concerning a violation of company policy in order to retaliate against a member who did not share his political views.

The protesters allege that Mr. Lowman retaliated against them because of their support for Mr. Carey by falsely accusing them before the employer.  Mr. Lowman is a known supporter of Mr. Hoffa.  By his own admission, Mr. Lowman suspected Mr. McDaniel of removing pro-Hoffa signs and stickers and was aware of his support for Mr. Carey’s candidacy. 

The employer has refused to provide evidence of the identity of the individual who made the false allegations against the protesters.  The proximity of Mr. Lowman’s conversa-tion with Mr. St. Denis and the accusations made by the employer, and the employers suspicious hesitancy to reveal the source of the “rumors” upon which it based the accusations, tend to indicate that Mr. Lowman behaved in a retaliatory manner.  Without more definitive evidence, the Election Officer will not find a violation of the Rules in this case.

Accordingly, the protest is DENIED.

Although the protest is denied, the Election Officer finds that the allegation here interferes with members’ protected rights to campaign.  Accordingly, the Election Officer “may take whatever remedial action is appropriate.” Rules, Article XIV, Section 4.

Therefore, the Election Officer orders the following:

1.  Within one (1) day of the receipt of this decision, Mr. Lowman will post copies of the enclosed notice on all union bulletin boards at the West Sac facility.

2.  Within one (1) day of the posting of the notice, Mr. Lowman will file an affidavit with the Election Officer indicating compliance with this order.

Marvin Stroud & Tim McDaniel

November 6, 1996

Page 1

An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules.  In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).

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, 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

Matthew D. Ross, Regional Coordinator

NOTICE TO MEMBERS OF

TEAMSTERS LOCAL UNION 150

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 150.

It is a violation of the Election Rules for any IBT member, employer or local union to threaten, coerce, intimidate, or harass a member because they exercise rights guaranteed under the Election Rules.

Anyone subject to such conduct should file a protest with the Election Officer at 400 N. Capitol Street, N.W., Suite 855, Washington, D.C. 20001; telephone (800) 565-VOTE or (202) 624-3500; facsimile (202) 624-3525.

_____________________________

Barbara Zack Quindel

Election Officer

This is an official notice which must remain posted through December 10, 1996 and must not be defaced or altered in any manner or be covered with any other material.