May 12, 1998
VIA UPS OVERNIGHT
Christopher Welch
May 12, 1998
Page 1
Christopher Welch
1322 Woodingham Drive
Rockledge, FL 32955
Mario Ferenac, President
Teamsters Local Union 385
126 North Kirkman Road
Orlando, FL 32811
Pete Peterson
Teamsters Local Union 385
126 North Kirkman Road
Orlando, FL 32811
James Pillow, Trustee
Teamsters Local Union 385
126 North Kirkman Road
Orlando, FL 32811
Ray Setty, Trustee
Teamsters Local Union 385
126 North Kirkman Road
Orlando, FL 32811
Rom Dulskis, Trustee
Teamsters Local Union 385
126 North Kirkman Road
Orlando, FL 32811
Jack Barmon, Business Agent
Teamsters Local Union 385
126 North Kirkman Road
Orlando, FL 32811
Betty Grdina
Legal Department
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Brian Kelly
Ethical Practices Committee
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
Michael Lewis
Ethical Practices Committee
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
David L. Neigus
Deputy General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington, Hills, MI 48334
Christopher Welch
May 12, 1998
Page 1
Re: Election Office Case No. PR-060-LU385-SEC
Christopher Welch
May 12, 1998
Page 1
Gentlemen:
Christopher Welch, a member of Local Union 385, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against officers and employees of Local Union 385 including President Mario Ferenac, Recording Secretary Danny “Pete” Peterson, Trustees James Pillow, Ray Setty and Rom Dulskis and Business Agent Jack Barmon. Two employees of the IBT, attorney Betty Grdina and Ethical Practices Committee investigator Brian Kelly, are also named in the protest. Mr. Welch alleges that he and Local Union 385 Secretary-Treasurer Bonnie Griffin were investigated in retaliation “for participating in providing information on election violations.” Mr. Welch also alleges that Local Union 385 is “utilizing union funds to investigate supporters of James P. Hoffa.”
The charged officers of Local Union 385 and Mr. Kelly admit that Mr. Welch and Ms. Griffin were questioned in connection with two independent investigations conducted between December of 1997 and January of 1998, but deny that these actions were election-related. Mr. Barmon and Ms. Grdina deny any involvement with the facts of the protest.
The protest was investigated by Regional Coordinator J. Griffin Morgan.
The protester, Mr. Welch, supports Mr. Hoffa for general president. All of the parties charged in the protest and Ms. Griffin (who the protester claims suffered retaliation) were elected to the Local Union 385 executive board in the most recent local union election.
The protester was questioned in the course of an investigation of file security at Local Union 385. That investigation came about because Local Union 385 had an active committee that was investigating a complex series of charges made against Local Union Executive Board members. The story of the committee investigation and Mr. Welch’s participation in PR-043 is as follows:
Mr. Welch “participat[ed] in providing information on election violations to the Election Officer.” In Hoffa, PR-043-LU385-SCE (January 9, 1998), aff’d, 98 - Elec. App. - 339 (KC) (January 30, 1998), the Election Officer investigated whether Local Union 385 violated the Rules by paying for the travel, housing, and lost work time of several of its members to attend the annual TDU convention. One of the facts found by the Election Officer was that Local Union 385, through letters signed by Business Representative Barmon, requested that employers excuse three members from their employment “for union business” to attend the TDU Convention. As stated in the decision, prior to writing these letters, Mr. Ferenac sought legal advice from Ms. Grdina of the IBT legal staff. Mr. Feranac wrote down Ms. Grdina's advice in a note which he gave to his secretary. The note stated, in pertinent part, that “[I]t is OK to mail a notice to the employers and ask them to excuse the members from work to go to the TDU convention.”
Christopher Welch
May 12, 1998
Page 1
The Election Officer ultimately denied PR-043 because the evidence established that Local Union 385 incurred no expense and used no union resources to send any officers, employees or staff to the TDU Convention. During the investigation of PR-043, copies of the request letters and Mr. Ferenac’s handwritten note were forwarded to Regional Coordinator Morgan through Richard Leebove, Mr. Hoffa’s spokesman. Mr. Leebove did not disclose the details of how he received these documents. Mr. Welch told Regional Coordinator Morgan in the course of this investigation, however, that he had participated in transmitting Mr. Ferenac’s note and the request letters pertinent to PR-043 to the Hoffa Campaign. Mr. Welch said he had not disclosed these matters to any other person before he filed this protest. Neither Mr. Welch nor Ms. Griffin were named in PR-043 nor were they questioned or identified as witnesses during the investigation.
Local Union 385 had created the investigation committee in December 1997 to investigate misconduct charges brought by and against the Local Union 385 Executive Board. Initially, the committee members were Local Union 385 Vice-President Jimmy Clark and Trustees Setty, Pellow, and Clark. Mr. Clark was eventually removed from the committee and Mr. Setty became the Chair. The charges under investigation related to Local Union abuses and did not concern either the International officer election or any of the issues encompassed by PR-043.
On January 26, 1998, 17 days after the Election Officer’s decision and five days after the Election Appeals Master heard the appeal, Mr. Ferenac discovered that the handwritten note and the request letters had been removed from the Local Union 385 files. Mr. Ferenac referred the matter of the missing records to a then-sitting investigatory committee of the local union, informing the committee of his concern about being able to trust his employees and his staff. Mr. Ferenac asked the committee to include this matter with other, factually-related allegations under investigation.
Mr. Ferenac’s referral of the “missing file document” allegations to the investigation committee reflects the referral of a matter pertaining to Local Union 385 business. The Election Officer found no evidence that Mr. Ferenac knew, at the time of the referral, that Mr. Welch had been involved in PR-043.
Mr. Welch was questioned by the committee as part of the local union investigation of file security separate and apart from PR-043. Mr. Welch was interviewed by Trustees Setty and Pillow on February 4, 1998. During the interview, Mr. Welch was specifically asked if he was involved in receiving documents from Ms. Griffin or if he knew anything about the disappearance of the note and letters from Local Union 385 files. Mr. Welch denied knowledge of these matters.
Christopher Welch
May 12, 1998
Page 1
Mr. Welch also alleged that Local Union 385 is “utilizing union funds to investigate supporters of James P. Hoffa.” In support of this allegation, Mr. Welch pointed to the Local Union 385 investigation committee’s questioning of him concerning an expense report. Mr. Welch stated that Ms. Griffin had temporarily hired him as a local union organizer. Mr. Welch had filed an expense report indicating that, on a day when he should have been conducting organizing activity, he traveled to a county courthouse to review criminal court documents pertaining to a Local Union 385 business agent. Mr. Welch asserts that he was questioned about this incident because he was a Hoffa supporter.
Trustees Setty and Pillow agree that they questioned the protester about this matter as part of their investigation. They state that Mr. Welch was also given an opportunity to provide evidence to the committee about any acts of alleged misconduct pertaining to Local Union 385.
On February 22, 1998, the committee issued a final report on the charges and counter-charges pending before it. The report disposes of various internal union matters. It does not mention or make any findings concerning the documents relating to PR-043 that were missing from Mr. Ferenac’s files.
The Rules, at Article VIII, Section 11(f), prohibit “[R]etaliation 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” when directed toward the exercise of any election-related right. See Parisi, Case No. P-1095-LU294-PGH (December 2, 1991). A protest claiming retaliation cannot be sustained unless a threat or an actual act of retaliation is established. Giacumbo, P-100-IBT-PNJ (October 13, 1995), aff’d, 95 - Elec. App. - 27 (KC) (October 25, 1995).
To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the decision or the conduct in dispute. The Election Officer does not find retaliation where the union officer or entity would have taken the same action even in the absence of the protected conduct. See Gilmartin, P-032-LU245-PNJ (January 5, 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). Providing the Election Officer with information relating to a protest is conduct specifically protected by the Rules. See, Article XIV, Section 1, Thibeault, P-236-LU1150-ENG (December 11, 1995) (Conduct which inhibits a member’s ability to communicate with the Election Officer or his agents, or which punishes members for engaging in such communication, violates the Rules.).
Christopher Welch
May 12, 1998
Page 1
Here, Mr. Welch has failed to establish a nexus between the questions asked by Trustees Setty and Pillow and his election-related right to submit evidence in support of a protest. The questioning occurred after protest PR-043 was decided by the Election Officer. But there is no evidence showing that either the questions or any other aspect of the investigation was motivated by the protest, especially since Mr. Welch stated that nobody outside the Hoffa Campaign was aware of his involvement in the protest.
Moreover, the committee was established to investigate the numerous internal local charges unrelated to the International officer election. In attempting to find facts pertinent to those charges, the committee exercised a legitimate internal union function on behalf of Local Union 385. IBT Constitution, Article XIX. Mr. Ferenac also advanced a legitimate union goal when he later requested that the Committee investigate the disappearance of local union documents. IBT Constitution, Article XXII, Section 1. The security and reliability of the Local Union 385 filing system, as well as the integrity of the persons having access to it, is a significant issue which potentially affects the interests of every member. The questions concerning the missing documents and the protester’s activities on the day he should have been organizing fail to establish an improper motive of the investigation committee.
As to Ms. Griffin, her only assertion is that EPC investigator Kelly, who interviewed her as part of the EPC’s investigation, made a statement that she believes strongly implied that the charges and counter-charges that were being investigated were motivated by improper International election considerations. Mr. Kelly denies making any such statement. Ms. Griffin states that she was neither a Carey nor a Hoffa supporter. Ms. Griffin stated however, that Trustees on the committee have “their hearts in the right places and want to do a good job.” Neither Mr. Welch nor Ms. Griffin presented any evidence of election-related retaliation against Ms. Griffin.
The evidence shows that Mr. Welch and Ms. Griffin were questioned for purposes legitimately related to union business. There is no evidence to show that the Committee’s efforts to obtain information about the facts relevant to the charges, the protester’s organizing activities and the missing documents, were retaliation for Mr. Welch’s exercise of his rights as provided in the Rules.
For the foregoing reasons, the protest is DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) 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:
Christopher Welch
May 12, 1998
Page 1
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, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely
Michael G. Cherkasky
Election Officer
MGC:chh
cc: Kenneth Conboy, Election Appeals Master
J. Griffin Morgan, Regional Coordinator