Protest Decisions

              February 5, 1997

VIA UPS OVERNIGHT

Gregory Isham & Joe Adrian

February 5, 1997

Page 1

Gregory Isham

1104 S. 6th Street

Rockford, IL  61104

Joe Adrian

6344 42nd Street

Rockford, IL  61109

Bruce Coleman

3123 Coleman

Rockford, IL  61101

Gregory Isham & Joe Adrian

February 5, 1997

Page 1

Re:  Election Office Case No. P-1335-LU325-CHI

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

Gregory Isham and Joe Adrian, members of Local Union 325.  Mr. Isham alleges that

Bruce Coleman, a co-worker at USF Holland and a fellow member of Local Union 325, physically and verbally assaulted him because of his support for James P. Hoffa, in violation of the Rules.  Mr. Adrian alleges that Mr. Coleman removed postings ordered by the Election Officer in a prior decision from a work-site bulletin board in order to discredit two pro-Hoffa stewards at the facility.

Regional Coordinator Julie E. Hamos investigated the protest.

1.  Prior History

On November 14, 1996, Clifford Chentnik, a member of Local Union 325, filed

P-1237-LU325-CHI in which he alleged that a Local Union 325 steward attempted to buy

Gregory Isham & Joe Adrian

February 5, 1997

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Mr. Coleman’s vote for Mr. Hoffa by offering him the services of a relative to help with a traffic ticket and that Hoffa supporters at USF Holland were engaging in “a continuing and regular campaign of harassment against supporters of Ron Carey.”  In Chentnik, P-1237-LU325-CHI (November 21, 1996), aff’d, 96 - Elec. App. - 294 (KC) (December 4, 1996), the Election Officer determined that Brad Stinson, a steward at USF Holland, and Local

Union 325 member Rick Clingenpeel attempted to interfere with Mr. Coleman’s right to independently determine how to cast his vote.  The Election Officer ordered Messrs. Stinson and Clingenpeel to cease such behavior and to post a notice at their work site acknowledging the violation of the Rules.  Because of the serious nature of the violation, the Election Officer also referred the matter the U.S. Attorney for the Southern District of New York for appropriate further investigation and action.

In early December 1996, Mr. Isham, a Hoffa supporter and political ally of

Messrs. Clingenpeel and Stinson, filed internal union charges against Mr. Coleman alleging that Mr. Coleman had violated union rules by speaking to a management official without a union representative present.  The investigation revealed that Mr. Coleman spoke to the company representative on December 6, 1996, immediately after the incident that gave rise to Mr. Isham’s allegations in the present protest.

Mr. Coleman advised the Election Officer of the internal union charges, claiming that they represented continuing harassment forbidden by the Rules and the Election Officer’s order in Chentnik.  On January 10, 1996, the Election Officer issued a letter to interested parties and the local union in which she ordered the local union to postpone a local union hearing on the matter pending the Election Officer decision concerning the current protest.

2.  Allegations Concerning Physical and Verbal Harassment

Mr. Isham states that on December 6, 1996 Mr. Coleman bumped into Mr. Isham at the USF Holland work site where they are both employed.  According to Mr. Isham, he was hit in the thigh “pretty hard” but “would not say it was intentional.”  He states that

Mr. Coleman then “verbally attacked” him by saying, “Isham, you guys know you were supposed to leave me alone out here.  How long do you fucking guys think you can get away with this?”

According to Mr. Isham, Mr. Coleman walked away but then started back towards

Mr. Isham who by this time was speaking to another Local Union 325 member.  Mr. Isham states that Mr. Coleman intentionally walked between the two men and elbowed Mr. Isham, saying “excuse me.”  According to Mr. Isham, Mr. Coleman next proceeded to the company office where he spoke to a manager about the incident with Mr. Isham outside of the presence of a union representative.  The terminal manager, Rick Varga, confirmed that Mr. Coleman told him that Mr. Isham went out of his way to bump into Mr. Coleman.  Mr. Varga called both men into his office and listened to their statements.  Without attributing a perpetrator to the incident, Mr. Varga requested that Messrs. Coleman and Isham refrain from such conduct in the future.

Mr. Isham claims Mr. Coleman targeted him for harassment in the hope that

Mr. Isham would lose his temper, thereby permitting Mr. Coleman to file another protest against a Hoffa supporter.

Gregory Isham & Joe Adrian

February 5, 1997

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Mr. Coleman confirms that the incident on December 6 occurred but asserts that

Mr. Isham intentionally walked into him.  He claims that his sole response was “Greg, you shouldn’t have done that.”  Mr. Coleman states that the incident left him very angry because he felt he was once again the target of politically-motivated harassment.  Mr. Coleman considered calling the police but decided to report the incident to the terminal manager instead.  Mr. Coleman states that, because of the position of a truck in the area, he was forced to walk between Mr. Isham and another employee, whereupon he turned sideways to move past and bumped into Mr. Isham.  Mr. Coleman then said “excuse me” and proceeded to the terminal manager’s office.[1]

Mr. Coleman states that he went to the terminal manager’s office without a union representative because he believed the physical nature of the incident warranted immediate action. 

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.

The Election Officer has previously stated that conduct is not retaliatory unless it “embodies a palpable threat of actual harm.”  Blake, P-785-LU630-CLA (June 19, 1996).  See also Dunn, P-110-LU25-BOS (July 28, 1995), aff’d, 95 - Elec. App. - 8 (KC) (August 21, 1995); Kelly, P-600-LU705-CHI et seq. (March 27, 1991); Schweitzer, P-672-LU896-CLA (March 25, 1991), aff’d, 91 - Elec. App. - 118 (SA) (April 31, 1991); In Re: Sullivan, 95 - Elec. App. - 2 (KC) (July 14, 1995).

By Mr. Isham’s own assertion, he did not consider the initial physical contact between himself and Mr. Coleman to be intentional.  Instead he protests Mr. Coleman’s subsequent words and actions.  Thus, the protester alleges that Mr. Coleman physically assaulted him, with the intention of provoking him, when Mr. Coleman moved between him and another individual on his way to the terminal manager’s office.

The investigation did not disclose any evidence to indicate that the alleged incident amounted to retaliation in violation of the Rules.  The Election Officer acknowledges that

Gregory Isham & Joe Adrian

February 5, 1997

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Mr. Coleman and the Hoffa supporters at the USF Holland facility have exhibited a high degree of hostility towards one another.  In such an atmosphere, minor expressions of rancor need not rise to the level of conduct prohibited by the Rules unless they embody a palpable threat of actual harm.  In the present case, the incident alleged, as described by both parties, amounts to, at most, an accident leading to a misunderstanding, and, at worst, a minor occurrence in which the protester was not placed in any threat of physical harm.  The protester states that he believed

Mr. Coleman tried to provoke him so that Mr. Coleman could file another protest to continue his allegations of retaliation.  The incident described here does not trigger the protection of the Rules because it does not amount to retaliation under the Rules.  In this instance, the brief altercation appears to be a workplace interaction between two members who do not like each other.

3.  Internal Union Charges

Following this incident, however, Mr. Isham filed internal union charges alleging that Mr. Coleman made false accusations against him before a management representative of USF Holland outside of the presence of a local union representative.  Mr. Isham claims that

Mr. Coleman violated local union bylaws when he reported the alleged incident with the protester to the facility manager because a union representative was not present during the meeting.  Mr. Isham was quite angry about this meeting and expressed his displeasure to the investigator.  As noted above, the local union had scheduled a hearing of these charges.  Because of the record of past retaliatory and harassing conduct towards Mr. Coleman, the Election Officer must now determine whether the filing of these internal union charges constitutes a continuation of retaliatory conduct against Mr. Coleman.

The investigation disclosed that the local union does not forbid members from speaking with management officials outside the presence of a local union representative.  According to John Calhoun, president of Local Union 325, local union members have a right to have union representatives present during such meetings but are not obliged to have representatives present.  Mr. Calhoun states that “guys go in and talk to management all the time without the union

there . . .”  He also states that, to the best of his knowledge, no internal union charges have been filed by one member of the local union against another in the five years he has worked for the local union.  Ted Sherman, secretary-treasurer of Local Union 325 since 1993, states that he has no knowledge of such charges filed during the last four years.

The investigation therefore indicates that Mr. Isham’s charges are both unusual and meritless.  During the investigation, Mr. Isham was questioned as to whether he would be willing to withdraw the internal union charges.  He responded that he would drop his charges if “Coleman also withdraws his charges,” referring to the Chentnik case.  When informed that Chentnik had already been decided and affirmed by the Election Appeals Master and, thus, could not be withdrawn, Mr. Isham became angry and stated that he would not drop the internal charges.

Mr. Isham’s actions and statements indicate that he filed the internal union charges in order to retaliate against Mr. Coleman for his participation in Chentnik and to pressure

Mr. Coleman into withdrawing that case.  The Rules expressly prohibit any form of retaliation for the protected right of filing protests or participating in protest investigations.  As a result,

Mr. Isham’s filing of internal union charges violates the Rules.

Gregory Isham & Joe Adrian

February 5, 1997

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4.  Allegations Concerning Removal of Postings

Mr. Adrian alleges that, on December 6, 1996, he witnessed Mr. Coleman removing literature from a union bulletin board at the USF Holland facility.  He states that he could not see the content of the literature but claims that the literature could only have been the notices ordered posted by the Election Officer in Chentnik.

Mr. Coleman denies removing the postings and points out that he insisted on the display of the postings in the first place.  The investigation revealed that the notices were removed on two consecutive days and were then re-posted.

Since Mr. Adrian did not actually witness Mr. Coleman removing the notices and did not provide witnesses to the alleged conduct, this portion of the protest is denied.

Accordingly, the protest is GRANTED as to the retaliatory nature of the internal union charges and DENIED in all other respects.

When the Election Officer determines that the Rules have been violated, she “may

take whatever remedial action is appropriate.”  Article XIV, Section 4.  In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.

Accordingly, the Election Officer orders the following:

1.  Mr. Isham will cease and desist from retaliating against Mr. Coleman for exercising his right to participate in the election protest process. 

2.  Within one (1) day of the receipt of this decision, Mr. Isham will deliver a letter to the local union withdrawing the internal union charges he has filed against Mr. Coleman.

3.  Within three (3) days of the receipt of this decision, Local Union 325 will notify Mr. Coleman in writing that the internal union charges have been withdrawn.

4.  Within five (5) days of the receipt of this decision, Mr. Isham and Local Union 325 will submit separate affidavits to the Election Officer indicating compliance with this order.

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:

Gregory Isham & Joe Adrian

February 5, 1997

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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

Julie E. Hamos, Regional Coordinator