July 22, 1998
VIA UPS OVERNIGHT
Michael F. Clark
July 22, 1998
Page 1
Michael F. Clark
3624 Belgrade Street
Philadelphia, PA 19134
Gerard P. McNamara, Trustee
Teamsters Local Union 107
107 Spring Garden Street
Philadelphia, PA 19123
John Dooley
2362 Norris Street
Philadelphia, PA 19125
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
John P. Morris, President
Teamsters Joint Council 53
3460 North Delaware Avenue
Suite 310
Philadelphia, PA 19134
Michael F. Clark
July 22, 1998
Page 1
Re: Election Office Case No. PR-115-LU107-NYC
Election Office Case No. PR-116-LU107-NYC
Gentlemen:
Michael Clark, a member of Local Union 107, 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 Gerald McNamara and John Morris. Mr. McNamara is the trustee of Local Union 107. Mr. Morris is president of Joint Council 53 and a candidate for Eastern Region Vice President. Local Union 107 is directly affiliated with Joint Council 53. In PR-115, Mr. Clark alleges that John Dooley was removed from his position as steward at Airborne Express for election-related reasons. Mr. Dooley, a member of Local Union 107, makes the same allegation in PR-116.
Mr. McNamara admits that he removed Mr. Dooley as steward, but denies that he was improperly motivated according to the Rules.
The protest was investigated by New York City Protest Coordinator Barbara C. Deinhardt,.
Michael F. Clark
July 22, 1998
Page 1
The record establishes that on August 12, 1996, General President Ron Carey placed Local Union 107 into an emergency trusteeship based on a report received by the IBT from the Independent Review Board (“IRB”). Mr. McNamara was appointed as trustee. As of the date of this decision, Local Union 107 is still under trusteeship.
At the time the trusteeship was imposed, Thomas Ryan was the president of Local Union 107. Messrs. Clark and Dooley were supporters of Mr. Ryan and openly oppose the trusteeship and the appointment of the trustee. The two protesters also support James Hoffa for general president. Until July 14, 1996, Mr. Ryan was a candidate for International vice president and was affiliated with Mr. Hoffa. Mr. McNamara was an active supporter of Mr. Carey for general president.
In May 1998, a petition was drafted by members of Local Union 107 who oppose the trusteeship. The petition stated as follows:
ATTENTION
PAYING MEMBERS OF TEAMSTERS LOCAL 107
Under Article 6 Section G of the Constitution of the International Brotherhood of Teamsters, we the undersigned dues paying members in good standing are petitioning the acting President Thomas Seaver [sic] for Self-Government. For the past 18 months we have been under trusteeship, during this time we have had no union meetings, no financial reports, and an appointed International Trustee named Gerald P. MacNamara [sic] who refuses to answer any of our questions.
There is no evidence that either protester participated in the preparation of the petition. Mr. Dooley posted a copy of the petition at his workplace and, and states that he “answered questions raised by other members.”
Mr. McNamara was advised that Mr. Dooley and several other stewards at Airborne Express had been circulating the petition. Mr. Dooley and six other stewards were removed by Mr. McNamara during the last week of May, 1998. Mr. McNamara states that he removed Mr. Dooley because he was circulating the petition. Mr. Dooley agrees that he was given that same reason by agents of Mr. McNamara at the time of his removal. There is no evidence that Mr. Morris participated in Mr. Dooley’s removal as steward.
Michael F. Clark
July 22, 1998
Page 1
Mr. Dooley bases his allegation that he was removed due to election-related reasons on his statement that “I have been told many times by Jerry (sic) [Mr. McNamara] that if I knock off the “Hoffa stuff” and talk to Mr. Morris and tell him that I would support him in this upcoming election that he could help me with some of my problems.” Mr. McNamara denies making such a statement. There is also evidence that Mr. McNamara has previously referred to Mr. Dooley as a “rat.” Mr. Dooley asserts that Mr. McNamara has made many other critical remarks about him and his support of Mr. Hoffa.
Mr. McNamara admits that he never personally questioned Mr. Dooley about his participation in circulating the petition. Mr. McNamara sent a letter to Mr. Dooley’s employer which, without naming Mr. Dooley or any other employee, complained generally about workers who circulate defamatory petitions on company time.
Article VIII, Section 11(f) of the Rules prohibits retaliation against any member by a local union and its agents for exercising any right guaranteed by the Rules. Article VIII, Section 11 (a) protects a member’s right to participate in campaign activity. No violation of Article VIII, Section 11(f) can be sustained, however, 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); Rogers, P-1346-IBT-NYC (March 4, 1997), aff’d, 97 - Elec. App. - 320 (KC) (March 17, 1997). There is no retaliation where the Election Officer concludes that the union officer or entity would have taken the same action even in the absence of the protester’s protected conduct. Gilmartin, P-032-LU245-PNJ (January 5, 1996), aff’d, 95 - Elec. App. - 75 (KC) (February 6, 1996). See 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) (“[I]t will not be a violation to remove a member from an appointed position if there was basis for doing so independent of the election process.”)
There is adequate evidence to indicate that hostility exists between Messrs. Dooley and McNamara due both to Mr. McNamara’s actions as trustee and Mr. Dooley’s support of Messrs. Hoffa and Ryan. However, there is insufficient evidence to establish that the allegations of this protest implicate the Rules. The uncontradicted evidence is that Mr. Dooley was removed from his position as steward by Mr. McNamara because he participated in circulating the petition. The petition was very critical of Mr. McNamara’s activities as Local Union 107 trustee. The petition contained no reference to the rerun election or any International candidate and there is no evidence that Mr. Dooley was removed for any other reason.
Since there is insufficient evidence to show that the candidacy of Mr. Hoffa or any other matter relating to the rerun election was a motivating factor in Mr. McNamara’s decision to remove Mr. Dooley from his position as steward, no issue arising under the Rules is raised. The Election Officer has no authority to resolve the allegations of the protest. Ryan, P-1149-LU150-CSF (November 21, 1996); Kantrowitz, PR-033-LU705-NCE (December 16, 1997).
Accordingly, the protest is DENIED.
Michael F. Clark
July 22, 1998
Page 1
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:
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
Barbara C. Deinhardt, New York City Protest Coordinator