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Office of the Election Supervisor for the International Brotherhood of Teamsters

              September 18, 1998




Michael F. Clark

September 18, 1998

Page 1


Michael F. Clark

3624 Belgrade Street

Philadelphia, PA 19134

Fax: (215) 537-8690


Gerard P. McNamara, Trustee

Teamsters Local Union 107

107 Spring Garden Street

Philadelphia, PA 19123

Fax: (215) 625-9087


James P. Hoffa

2593 Hounds Chase

Troy, MI 48098

Fax: (202) 223-9677

Attn: Patrick J. Szymanski, Esq.

Bradley T. Raymond, Esq.

Finkel, Whitefield, Selik, Raymond,

   Ferrara & Feldman

32300 Northwestern Highway, Suite 200

Farmington Hills, MI 48334

Fax:(248) 855-6501

Michael F. Clark

September 18, 1998

Page 1


Re:  Election Office Case No.  PR-246-LU107-NYC




Michael F. 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, IBT-appointed trustee of Local Union 107.  Mr. Clark alleges that Mr. McNamara is refusing to give the union’s approval for his employer-approved 60-day leave of absence which he will use to coordinate the Philadelphia area campaign for James P. Hoffa, a candidate for general president.


Local Union 107 responds that there is no reason that the protester’s leave will not be approved but that Mr. McNamara has been out sick and therefore has been unable to take care of union business.


The protest was investigated by New York City Protest Coordinator Barbara C. Deinhardt.


Michael F. Clark

September 18, 1998

Page 1


The protester is an active supporter of Mr. Hoffa, and ran his operations in Philadelphia in the initial election. Mr. Clark serves as the coordinator for the Hoffa Campaign in the Philadelphia area for the rerun election.  Mr. Clark had requested a 60 day leave of absence from his employer to work on Mr. Hoffa’s campaign.  The leave was to begin on August 25.  His leave request was approved by Mr. Clark’s employer, Berger Brothers, but in order for it to be effective, a representative of the union has to sign off on it.  On a number of occasions between August 17 and 21, 1998, Mr. Clark delivered, faxed and mailed the request for the leave of absence to Mr. McNamara for his signature.  Mr. McNamara has failed to act on this request and therefore the protester has been unable to begin the leave he wanted to begin on August 24.


Counsel for Mr. McNamara stated to the investigator that Mr. McNamara has been out sick and has not been able to take care of union business, including signing paychecks.  Counsel assured the investigator that as soon as the situation was resolved, Mr. McNamara would sign off on Mr. Clark’s leave.  During the investigation, however, it was discovered that Mr. McNamara has been into the office on several occasions to sign paychecks, but has not signed the leave request.


Despite the fact that Mr. McNamara had notice of this protest on August 26, and has since had discussions with the investigator, the leave request has not been signed.


Article VIII, Section 11(f) of the Rules provides:


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.


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 he 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).


Apart from Mr. Clarks political support for Mr. Hoffa, there is no reason to support the local unions failure to approve the leave.  The Election Officer finds that the local union, and particularly Mr. McNamara, has failed to sign off on the protesters leave request in retaliation for his support of Mr. Hoffa.


Accordingly, this protest is GRANTED.

Michael F. Clark

September 18, 1998

Page 1


When the Election Officer determines that the Rules have been violated, he “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.



The Election Officer therefore orders that:


1.  Within twelve (12) hours of receiving this decision, Local Union 107 shall sign Mr. Clark’s leave request and deliver it to Mr. Clark and his employer.  The Local Union will simultaneously serve a copy on the Election Officer.


2.  Local Union 107 shall immediately cease and desist from retaliating against Mr. Clark or any other member based on the support of any candidate in the International Officer Rerun Election.


3.  By September 21, Local Union 107 will post the attached  “Notice To Local Union 107 Members” on all bulletin boards within the union hall, and at Berger Brothers, Mr. Clark’s employer.  The notice shall remain posted until December 3, 1998.  Further, Local Union 107 shall file an affidavit detailing compliance with this order by September 25.


An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the RulesIn 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 (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


Michael F. Clark

September 18, 1998

Page 1


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.






Michael G. Cherkasky

Election Officer




cc:              Kenneth Conboy, Election Appeals Master

Barbara C. Deinhardt, New York City Protest Coordinator







The Election Officer has found that Local Union 107 retaliated against Michael F. Clark in violation of the Election Rules when it failed to sign off on a leave of absence request which was made to work on the campaign of James P. Hoffa in the International officer rerun election.  The local union has been ordered to cease and desist from such conduct and to immediately sign off on Mr. Clark’s leave of absence.









Gerald McNamara

Trustee, Local Union 107










This is an official notice which must remain posted until December 3, 1998, and must not be defaced or altered in any manner or be covered with any other material.

Approved by Michael G. Cherkasky, IBT Election Officer.