Protest Decisions

              May 25, 1999

VIA FACSIMILE

Kenneth Conboy, Esq.

May 25, 1999

Page 1

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Doug Mims

1645 Brantford Drive

Tucker, GA  30084

Don Scott, President

Teamsters Local Union 728

2540 Lakewood Avenue SW

Atlanta, GA 30315

Kenneth Hilbish, President

Teamsters Local Union 528

2540 Lakewood Avenue SW

Atlanta, GA 30315

Ken Wood, President

Teamsters Local Union 79

5818 E. MLK Jr. Blvd.

Tampa, FL 33619

Chuck Crawley, President

Teamsters Local Union 988

3100 Katy Freeway, P.O. Box 7693

Houston, TX 77270

Nelson Wright

c/o Kenneth Hilbish

Teamsters Local Union 528

2540 Lakewood Avenue SW

Atlanta, GA 30315

James P. Hoffa, General President

International Brotherhood of Teamsters

25 Louisiana Avenue

Washington, DC  20001

Aaron Belk

6502 Poplar Corner

Walls, MS  38680

Charlie Gardner Campaign

1007 Jonelle Street

Dallas, TX  75217

Paul Alan Levy, Esq.

Public Citizen Litigation Group

1600 20th Street NW

Washington, DC  20009

James L. Hicks Jr., P.C.

2777 N. Stemmons Freeway, Suite 1100

Dallas, TX XXX-XX-XXXX

Patrick J. Szymanski, General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue

Washington, DC  20001

Kenneth Conboy, Esq.

May 25, 1999

Page 1

Re:              Election Office Case No. SR-014-LU728-NYC

Kenneth Conboy, Esq.

May 25, 1999

Page 1

Dear Judge Conboy,

You have asked for a more detailed explanation of how the Election Officer weighed the testimony and determined the facts in the above-referenced case.  Election Office investigations are expedited and testimony is not ordinarily tested by cross-examination.  Thus, the Election Officer is reluctant to hold that any witness in an investigation has intentionally lied and will strive whenever possible to find facts based on common accounts of events.  When two versions of an event material to an alleged Rules violation cannot be reconciled and a credibility determination must be made, the Election Officer will carefully analyze the witnesses’ testimony, motivation and demeanor, and determine the facts from all of that evidence considered together.  Corroboration from a witness independent of the parties to the alleged misconduct can be a crucial factor in fact-finding.  All of this must be done expeditiously so that the election process can proceed undisrupted by investigations and any appropriate remedies can issue promptly to protect the process. 

In the instant case, because of the seriousness of the charges and the extent of the factual disputes, the Election Officer conducted a particularly thorough investigation.  Election Officer Representative Barbara C. Deinhardt conducted sworn depositions of 13 witnesses in Atlanta, Georgia, and interviewed numerous other witnesses by telephone.  On Greg Flamer’s charge of coercion and retaliation, sworn witnesses included Mr. Flamer and his wife; Mr. Hilbish; Nelson Wright, Vice-President of Local 528; Jim Reynolds, a Local 528 Business Agent; Paul Kropp, bookkeeper at Local 528; Cathy Smith, Office Manager and others.  On Doris Sanders’ charge of coercion, sworn witnesses included Ms. Sanders, Waymon Stroud and Don Scott.  On both charges, the Election Officer Representative conducted telephone interviews of all witnesses proffered by the interested parties. 

1. The Election Officer’s Finding That Mr. Hilbish Coerced Mr. Flamer

In the charge involving Greg Flamer and Kenneth Hilbish, the Election Officer Representative questioned the credibility of a number of witnesses on both sides of the protest and suggested to the Election Officer that many of them were truthful only in part and were misrepresenting the facts in other respects.  The decision on appeal states that there were many inconsistencies and conflicts in the testimony of the various witnesses.  Most of the testimonial inconsistencies between the principals were either not material to the facts found, or could be resolved by reference to documents (as in the case of Mr. Flamer’s job performance) or testimony from non-principals. 

Kenneth Conboy, Esq.

May 25, 1999

Page 1

On the Rules violation found against Mr. Hilbish, the Election Officer found that Mr. Hilbish told Mr. Flamer on a number of occasions that he had to buy at least one ticket to a Hoffa fundraiser if he wanted to keep working at Mr. Hilbish’s Local Union.  Mr. Hilbish denied the charge under oath.  Nevertheless, the Election Officer questioned Mr. Hilbish’s denial.  When he was first contacted in this investigation, Mr. Hilbish denied any motive to ask Mr. Flamer to contribute to the Hoffa fundraiser because Mr. Flamer was not an IBT member and so would not have been permitted to contribute.  Under oath, however, Mr. Hilbish admitted that he did not find out that there were questions about Mr. Flamer’s membership until after the termination.[1]  The explanation initially proffered to show a lack of motive was therefore not credible. 

Also, although ample reason existed to terminate Mr. Flamer for misconduct, Mr. Hilbish tried to bolster his position by offering the Election Officer a logbook with an entry dated April 21, 1999 that purportedly showed a dereliction of duty by Mr. Flamer on that date.  The report of misconduct was supposedly made to Mr. Hilbish contemporaneously by Nelson Wright, who allegedly knew of the dereliction first-hand.  Mr. Hilbish and his attorney raised this incident as an example of Mr. Flamer’s unreliability and deemed it significant in the decision to terminate Mr. Flamer, coming as it did after Mr. Hilbish gave Mr. Flamer a “second chance” following the incident with the gasoline credit cards.  Mr. Wright also testified that the incident happened and was reported by him on April 21.  It later emerged during the depositions that in fact Mr. Wright had been on vacation during that entire week and – contrary to his own sworn testimony and that of Mr. Hilbish – could not have witnessed the dereliction as reported.  Because the credit card incident occurred on the preceding Thursday, April 15, and all the business agents and Mr. Flamer were at a membership meeting out of Atlanta on Friday, April 16, and then Mr. Wright was on vacation for a week, this incident, if it happened at all, must have occurred before the credit card incident.  This significant and incontrovertible fact thus calls in question Mr. Hilbish’s testimony, Mr. Wright’s testimony and the log allegedly kept contemporaneously by Mr. Hilbish. 

The statements of Mr. Flamer and his wife obviously come from individuals motivated to testify against Mr. Hilbish and would probably not be credited alone. On the other hand, witnesses in support of Mr. Hilbish were employees of the Local Union, and each was thus arguably disposed to support Mr. Hilbish’s version of events.  It is in this context that the testimony of Mr. Kropp becomes a significant factor in establishing Mr. Hilbish’s coercion of Mr. Flamer. 

Mr. Kropp, the Local Union 528 bookkeeper and benefits coordinator for three years and, according to Mr. Hilbish, a critical and valued employee, testified that Mr. Hilbish never told him directly that he had to buy a ticket to the Hoffa fundraiser.  When Mr. Hilbish offered a Mr. Kropp a job as an organizer (the same job as Mr. Flamer), Mr. Kropp felt pressure to buy a ticket to the Hoffa fundraiser, but says Mr. Hilbish assured him that he need not do that.  He testified that Mr. Flamer reported a different experience and he gave a chronology of Mr. Flamer’s reports to him. 

Kenneth Conboy, Esq.

May 25, 1999

Page 1

According to Mr. Kropp, Mr. Flamer had come into his office on a number of occasions over the three-week period before Mr. Flamer’s termination, very upset about the pressure being put on him by Mr. Hilbish and Mr. Wright to buy a Hoffa fundraiser ticket. He testified that Mr. Flamer told him that either Mr. Hilbish or Mr. Wright told him that if he did not come up with the hundred dollars he would lose his job. Mr. Kropp’s testimony puts these reports beginning at a time a week or two before Mr. Hilbish confronted Mr. Flamer about the misuse of the union’s gasoline credit card. 

The chronology is very material to the facts found here.  This is not a case where Mr. Flamer told Mr. Kropp, as an afterthought, of past coercion after he had been terminated or even after he had been threatened with termination because of his misuse of the credit card.  Rather, to reject Mr. Kropp’s testimony as corroboration for Mr. Flamer’s allegation, one would have to assume that Mr. Flamer planned to charge Mr. Hilbish with this Rules violation before he was told explicitly that his job was in jeopardy, and that he made false reports to Mr. Kropp over a three week period in order to be able to substantiate his story, should he actually get fired.  The Election Officer noted that Mr. Kropp also has the same interest in pleasing Mr. Hilbish as do other employees of Local Union 528.  Nevertheless, he testified under oath to reports of serious misconduct by the head of his union.  The Election Officer thus determined that Mr. Kropp’s testimony corroborated Mr. Flamer’s account.

The Election Officer did not find it determinative that Mr. Kropp had not been similarly threatened.  It would not be inconsistent for Mr. Hilbish to put more pressure on a marginal employee whose trustworthiness or indispensability was in question than on a valued and necessary long-term employee.  As Mr. Flamer testified, in his first conversation with Mr. Hilbish about the need to buy the ticket, Mr. Hilbish “asked me how many sign-ups I had, and how you doing with your sign-ups, and I told him I was having a very difficult time, and I explained all that to him, and he just cut me right off.  He said, you know, you’re lucky to have a F’g job here. . . .  He said, well, don’t forget the letter I gave you, and he . . . said, you need to buy five of these F’g tickets because you’re lucky to even be working here with me.  You’re lucky, you know, to be working here . . . .  I kind of laughed.  I said, I can’t buy five.  I can’t  even afford one ticket.  He said, well, if you want to stay employed here, if you want to work for me, you will buy a ticket.”  While Mr. Flamer was an employee on thin ice, Mr. Kropp was, according to Mr. Hilbish, “a good guy” who “has done great work for my local” and who “keeps an excellent set of books. I pay him well and I don’t care who he supports.” 

In his submission to you, Bradley Raymond, attorney for Mr. Hilbish, cites as evidence of the Election Officer’s inadequate analysis of the testimony, a statement by Mr. Wright about Mr. Flamer’s reaction to being fired.  Mr. Raymond apparently interprets this testimony as showing that Mr. Flamer threatened to frame Mr. Hilbish or otherwise to file false charges against him. When asked about this conversation, Mr. Flamer generally confirmed it, stating that he told Mr. Wright that:

Kenneth Conboy, Esq.

May 25, 1999

Page 1

I felt this was coming.  I guess if I bought the ticket, maybe it would have bought me some time, but I felt like this was coming . . . I said it [about filing charges against Ken Hilbish] while we were riding because I was aggravated, constantly harassed, constantly.  I said it is a matter of principle.  I did not have the money for the ticket.  This is constant.  You know, I was never afforded an opportunity to do my job.  I was never given the tools.  I was never given the safety net.  I was badgered all the time.  I had to vent . . . I said I was just sick and tired of this whole mess, that this upset my family, upset me.  You know, you remind me every day about the ticket, about the hundred dollars for the ticket.  If I had given it to you this morning when you asked, maybe I would have my job until 90 days anyway.  I was very angry that day . . . .  I said Ken Hilbish needs to be dealt with because I was mistreated.  I never said anything about getting him back, bringing him down . . . .  I said Nelson, you call yourself a Christian man, you know I was not treated fairly.  Now, for this to happen, you remember when Ken said he would break my legs, but I’ll never get a job in this room [sic] again. I was angry, but I never made a threat against him that I’ll bring him down.  I said he needs to be dealt with because every day he made my life miserable . . . .  You guys think you can terminate people at will.  You never afforded me the opportunity.  I said, I’m going to tell this to an attorney.  He said who?  I said Paul Levy.[2]

The two versions are not significantly different.  Mr. Flamer was upset and angry and threatened to take action against Mr. Hilbish for what he felt had been unfair treatment, including harassment about buying the ticket.  He had already talked to Paul Levy about the threats to fire him, as we know from the fact that the protest had been filed with the Election Office the week before.  The Election Officer does not infer from the conversation the sinister conclusions drawn by Mr. Raymond.

Considering all of the evidence, including the testimony, demeanor and motivation of all the witnesses and particularly the testimony of Paul Kropp, the Election Officer found that Mr. Hilbish had tried to pressure Mr. Flamer into buying tickets to the Hoffa fundraiser and rejected Mr. Hilbish’s denial.

2. The Election Officer’s Finding Concerning Mr. Crawley’s Improper Statement

to Ms. Sanders

Kenneth Conboy, Esq.

May 25, 1999

Page 1

The analysis of witness testimony with respect to the charges involving Chuck Crawley supports the Election Officer’s finding.  In this matter there was general agreement among the witnesses on the overall context in which the conversation occurred between Mr. Crawley and Ms. Sanders.  The disputed issue is whether Mr. Crawley told Ms. Sanders, after reminding her that he was on a panel hearing her grievance presentations, that she should support Charlie Gardner and contribute $300 to the Gardner campaign. 

The witnesses testified that various people attending the grievance hearing session went to dinner separately on the night before the hearings and that after dinner, around 10:00 p.m., a large group began to congregate in the hotel bar.  In one part of the bar, a conversation began, initiated by Chuck Crawley, among Mr. Crawley, Doris Sanders and Sheila Hutchison, who was sitting beside Ms. Sanders.  They were apparently seated at a long table in the bar.  As that group talked, others associated with the grievance hearings wandered in and out, sometimes listening to the conversation between Mr. Crawley and Ms. Sanders, sometimes holding their own side conversations.  As one would expect in an active bar, the conversations occurred in small groups.  With each group absorbed in its own exchanges, the best, and perhaps only, direct evidence of a particular conversation can come from the principals. 

In this case, the Election Officer carefully analyzed the testimony of all the witnesses, including their capacity to observe, hear and relate what was occurring in the conversation among Crawley, Sanders and Hutchison.[3]  A determination was made from this evidence that does not require a conclusion that either Mr. Crawley or any of his supporting witnesses did not tell the truth. 

First, there are the agreed-upon circumstances of the conversation: it took place in a bar and directly involved only three people.  Second, Mr. Crawley admitted having a substantial amount of alcohol to drink while Ms. Sanders did not similarly imbibe.  Mr. Crawley’s recollection of his own actions is therefore suspect.  Third, Ms. Hutchison, although a grievant who ultimately suffered an adverse ruling, provided significant detail about the statements of Mr. Crawley, and his conduct, that supports the finding.  Finally, while the witnesses provided by Mr. Crawley said that they did not hear the statement alleged by Ms. Sanders, most of them testified that Mr. Crawley was, at the very least, strongly proselytizing for Mr. Gardner.  The evidence will be summarized below. 

Kenneth Conboy, Esq.

May 25, 1999

Page 1

Ms. Sanders testified that after Mr. Crawley importuned her to support Mr. Gardner and reminded her that her fellow business agents had done so, said, “you have two discharges and two suspensions in front of my committee tomorrow morning, and what I need from you is that letter of support and $300 for Charlie Gardner’s campaign fund.”  Ms. Sanders said that she told Mr. Crawley he was too good a union man to hold a Teamster’s job hostage and he replied: “this is politics, and this is a dirty business.” 

Mr. Crawley conceded that a heated discussion was going on between Ms. Sanders and himself, but denies that he made any connection between her support for Charlie Gardner and his action on her pending grievances.  He said that he might have been misconstrued, but that he would never say anything like what Ms. Sanders accused him of saying.

Ms. Hutchison, the third party to this bar conversation, was sitting next to Ms. Sanders throughout.  She told the Election Officer Representative that when Mr. Crawley first started talking to Ms. Sanders about the need to support Mr. Gardner, she did not pay attention because she thought it was a joke.  She recalled that everyone was sitting around talking and drinking (she specifically remembers that Ms. Sanders declined an offered drink).  Regarding the alleged improper statement, Ms. Hutchison testified Mr. Crawley brought up his request that Ms. Sanders contribute $300 to Mr. Gardner and someone asked Ms. Hutchison, “If Doris gives $300, will you?”  Ms. Hutchison said that she jokingly replied, “Sure I will!”  She then realized that Mr. Crawley was not laughing and Ms. Sanders was acting uncomfortable.  She recalls that when the conversation over Gardner started getting heated, Mitch Lilly, the employer representative from Yellow Freight, got up and said he was going to the bathroom, leaving a couple of fresh drinks on the table.  He did not return.[4]  According to Ms. Hutchison, Mr. Crawley then said to Ms. Sanders, “Don’t forget you have two cases coming up in front of me” to which Ms. Sanders replied she knew he was not the type of man who would let politics interfere with his decisions in cases.  She did not hear Mr. Crawley’s response.

It is true that Ms. Hutchison had a termination grievance pending in front of Mr. Crawley the next day and that he voted with the company to deny the grievance.  She told that fact to the Election Officer Representative in her interviews and expressed her disappointment with the outcome.  The Election Officer did not, however, inquire about the substance of the grievance.  While the grievance could provide a motive for her to shade her testimony against Mr. Crawley, it is only one factor to be taken into account in weighing the relative credibility of all the witnesses.[5]

Kenneth Conboy, Esq.

May 25, 1999

Page 1

The following morning, Ms. Sanders reported the conversation to Waymon Stroud, a Business Agent for Local 728.  Mr. Stroud is a supporter of Mr. Gardner and signed an endorsement letter for him.  According to Mr. Stroud, Ms. Sanders reported that the “weirdest thing” happened to her the night before and she related the threat made by the grievance committee chair.[6]  Mr. Stroud said that Ms. Sanders reported that she had been told that she had two cases coming before the committee and she better get on board and support their candidate and give a $300 donation.  She asked for Mr. Stroud’s advice.  He testified that he told her that if she could settle, he would do that and not take any chances.  She therefore settled the two suspensions and one of the terminations.  The other termination (not involving Ms. Hutchison) involved significant liability and apparently was not amenable to settlement.

Statements from six Teamster members who were also present in the bar and were asked by Mr. Crawley to give evidence, generally corroborate Ms. Sander’s allegation that Mr. Crawley was forcefully touting the Gardner candidacy in this conversation.  Some of these witnesses are stewards or business agents of Mr. Crawley at Local 988.

According to Cliff Rhodes, a group including Gary Kyle, Coleman Davis, Joel Flores and himself, had dined together, had some drinks at dinner and then had come into the bar and joined Mr. Crawley.  Mr. Rhodes said that Coleman Davis was sitting next to Mr. Crawley and that he sat next to Mr. Davis.  He said that he heard Mr. Crawley trying to get one of the women at the table to support Charlie Gardner and to contribute money and that everything seemed pleasant.  He then went on to his own conversation.

Gary Kyle, a Local 988 Business Agent, said he listened in on the conversation among Mr. Crawley and Ms. Sanders, but did not hear anything threatening or anything about grievances.  He said that they were just talking about “everyday normal things in an everyday normal tone of voice.”

Joel Flores said that he just walked into the bar to say good night to Mr. Crawley and only heard a little of the conversation before he left.  He heard Mr. Crawley “talking up” Charlie Gardner to Ms. Sanders. 

Coleman Davis said that he just stopped in the bar to say hello to Mr. Crawley, but only stayed a few minutes and did not hear much.  He did, however, hear Mr. Crawley campaigning to convince Ms. Sanders to support Charlie Gardner.

Kenneth Conboy, Esq.

May 25, 1999

Page 1

Frank Perkins had gone to dinner with Gary Kyle, Coleman Davis and the others and then joined them in the bar.  He said that there were a number of conversations going on at the bar at the same time.  He was off to the side, having a drink and talking with Richard Nelson, Coleman Davis and a little to Mr. Crawley.  He heard Mr. Crawley trying to convince Ms. Sanders to vote for Mr. Gardner, telling her that there are business agents who are supporting him and that she should get on board.  He said that he did not hear anything threatening or anything about grievances.

Richard Nelson, who according to Mr. Perkins had been having a side conversation with him, agreed that there were several simultaneous conversations going on in the bar in different groups.  He said there was conversation about the upcoming rerun election, about the merits of Mr. Mims compared to Mr. Gardner and about Don Scott.  He said Mr. Crawley was voicing “strong opinions,” but he had “no direct recollection” of anything being said about grievances.

Having considered all the testimony in the aggregate, the Election Officer concluded that Mr. Crawley made the statement as alleged.  The specific recollection of Ms. Sanders and Ms. Hutchison is not directly contradicted by anyone except Mr. Crawley (who admitted to excessive drinking that night).  The others present in the bar could not conclusively controvert the specific matter of Mr. Crawley’s mentioning the grievance hearing to Ms. Sanders and suggesting a $300 contribution to Gardner, but they did support the idea that Mr. Crawley was talking to Ms. Sanders about the need to support Gardner.  That the drinking may have relaxed Mr. Crawley’s mental inhibitions and resulted in an improper statement (a statement he apparently did not implement in the sober light of day) does not diminish the reality of the coercive threat as perceived by Ms. Sanders.

Counsel for Mr. Crawley has argued that a self-confirming, after-the-fact report may not carry much corroborative value.  In this case, however, the report was made as promptly as practicable (the morning after a statement made at 10:00 at night), to a supporter of Mr. Gardner, in an attempt to seek guidance on how to handle the pending grievances.  The circumstance of the report lends credibility to Ms. Sanders’ testimony. 

After reviewing the evidence, the Election Officer adheres to the original findings on these allegations. 

Respectfully submitted,

Michael G. Cherkasky

Election Officer

cc:              Barbara C. Deinhardt, Esq.