October 26, 1998
VIA FIRST CLASS MAIL
Stewart Alexander
October 26, 1998
Page 1
Stewart Alexander
2463 W. Avenue 133rd
San Leandro, CA 94577
Chuck Mack, Sec.-Treas.
Teamsters Local Union 70
70 Hegenberger Road
Oakland, CA 94621
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Stewart Alexander
October 26, 1998
Page 1
Re: Election Officer Case No. PR-297-LU70-EOH
Gentlemen:
Stewart Alexander, a member of Local Union 70, 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 Local Union 70. Mr. Alexander alleges that he was fired from his job at Waste Management, Inc. (“Waste Management”) on the basis of unspecified actions taken by Local Union 70 in retaliation for his support of the Tom Leedham “Rank and File Power” Slate (“Leedham Slate”), in violation of the Rules. Local Union 70 denies the allegation and states that Mr. Stewart was fired due to a record of excessive absenteeism.
The protest was investigated by Election Office Staff Attorney Peter F. Gimbrère.
Stewart Alexander
October 26, 1998
Page 1
Mr. Stewart worked at the Waste Management facility located in Oakland, California. In 1991 and 1996 he campaigned for the Ron Carey Slate. In the Rerun Election he has campaigned for the Leedham Slate. While he was very active in the 1991 and 1996 IBT elections, his current campaign activities have been limited to distributing campaign literature to other members.[1]
The protester was fired by the company in August of 1998 for “excessive absenteeism.” At the first grievance hearing regarding his discharge on August 11, 1998, the panel deadlocked. At the second grievance hearing on September 8, 1998, Mr. Stewart’s discharge was upheld. Mr. Stewart contends that his work absences were all directly related to severe injuries he suffered in an accident late in 1997 and that he was improperly discharged while on disability. He claims that Local Union 70 failed to fairly represent him at his discharge grievance hearings due to the fact that the majority of Local Union 70 officers and representatives support James Hoffa in the International Officer Rerun Election. He further claims that Waste Management did not let him work during his discharge proceedings, contrary to usual practice, despite the fact that he had been released from his disability status by that time and was able to work. Finally, he claims that other members of Local Union 70 have missed more work than he has, but have not been discharged.
David Calegari, a representative of Waste Management who attended both grievance panels, stated that the company had never taken any action against Mr. Stewart based on any election-related activities, that election-related activities were never mentioned at the panels, that the company had no idea who Mr. Stewart supported in any IBT elections, and that his dismissal was based purely on his record of excessive absenteeism. A copy of the two grievance panel decisions as well as Mr. Stewart’s work attendance record were provided to the Election Office.
Article VIII, Section 11(f) of the Rules prohibits retaliation against any member by the Union or its employees for exercising any right guaranteed by the Rules. To sustain a violation of this section, some evidence must be presented or disclosed which expressly or inferentially connects the conduct which is alleged to be improper to 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).
Stewart Alexander
October 26, 1998
Page 1
Article XIV, Section I of the Rules places the burden on the complainants “to present evidence that a violation has occurred.” Furthermore, the Election Appeals Master has stated that the protester bears the initial burden of proof to offer evidence substantiating his allegation. In re: Chentnik, 95 - Elec. App. - 52 (KC) (January 10, 1996). Rules, Article XIV, Section 1. The Election Officer has consistently denied protests when the protester offers insufficient evidence to corroborate and support his allegations. Hoffa, PR-043-LU385-SCE (January 9, 1998); Pike, P-278-LU952-CLA (January 30, 1996). Despite numerous requests from the Election Office representative, Mr. Stewart failed to provide any evidence, other than his general support for the Leedham Slate, connecting his discharge to election-related activity protected by the Rules. Furthermore, Mr. Stewart presented no evidence showing that officers or representatives of Local Union 70 were in any way responsible for his discharge or acted in collusion with Waste Management to have him discharged. With respect to the protester’s contention that Local Union 70 failed to fairly represent him during his discharge proceedings, without a nexus to the International Officer Rerun Election, this matter is outside the Election Officer’s jurisdiction. See Olson, PR-295-LU70-EOH (October 20, 1998).
Accordingly, 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:
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
cc: Kenneth Conboy, Election Appeals Master
[1] Mr. Stewart did state that in March of 1998, he attended a Local Union 70 meeting and attempted to present a petition at which time he was allegedly threatened by Louis Magilon, a pro-Hoffa Local Union 70 steward. Mr. Magilon allegedly stated that he “wanted to take him outside.” Mr. Stewart promised to submit the names of other members who witnessed the incident to the Election Office representative, but never did. Mr. Stewart did not state that the petition was connected to election-related activity nor did he file a protest at the time of the incident.