May 20, 1999
May 20, 1999
Page 1
VIA UPS OVERNIGHT
Theresa M. Sherman
4821 Blueberry Drive
Brandywine, MD 20613
James Fallon, Esq.
503 11th Street SE
Washington, DC 20003
BY HAND
James P. Hoffa, General President
International Brotherhood of Teamsters
25 Louisiana Avenue
Washington, DC 20001
Carlow Scalf, Executive Assistant
to the General President
International Brotherhood of Teamsters
25 Louisiana Avenue
Washington, DC 20001
May 20, 1999
Page 1
VIA FACSIMILE
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik, Raymond,
Ferrara Feldman
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
Re: Election Officer Case No. SR-12-IBT-EOH
Gentlepersons:
Theresa Sherman, formerly an Executive Secretary to the General President of the IBT, filed a pre-election protest in the Southern Region Rerun Election under Article XIV, Section 2 of the Rules for the 1995-1996 International Union Delegate and Officer Election (“Rules”). Ms. Sherman was, until recently, employed by the IBT and alleges that the new Hoffa Administration terminated her employment for improper, political reasons. Although employed at the IBT for a number of years, Ms. Sherman is not an IBT member. The IBT denies that the termination was in any way improper.
The protest was investigated by Election Office Associate General Counsel Geoffrey Millsom.
May 20, 1999
Page 1
Ms. Sherman has worked for the IBT for 16½ years and, at the time of her termination, held the title of Executive Secretary to the General President. She contends that during the transition period from December 1998 through March 1999, she worked for James Hoffa and Carlow Scalf and that they found her work satisfactory. She further contends that Mr. Scalf and Dane Passo periodically told her that she would continue to work at the IBT and in that office once Mr. Hoffa took office.
Ms. Sherman states that while she worked at the IBT she “always remained neutral[,] staying out of politics” and emphasizes in her written presentation that she never got involved in campaigns, or engaged in activity such as telephone banking. She notes that she testified at the Independent Review Board hearing on charges filed against Ron Carey, but asserts that she was “subpoenaed” to appear.
The Election Officer certified certain results of the 1996 rerun election on March 19, 1999 and the newly-elected IBT General Executive Board members assumed office shortly thereafter. On the date of certification, Judge Edelstein ordered a rerun election for one vacant International Vice President seat in the Southern Region. Three days later, on March 22, 1999, the new members of the General Executive Board adopted a “Resolution On Transitional Personnel Policies” that provided in part:
The General President and General Secretary-Treasurer are authorized to implement such personnel actions and transactions as each deems necessary and appropriate in his respective area of responsibility to ensure the employment of adequate and qualified staff possessing views which are compatible with those of the new administration.
Ms. Sherman was terminated late on the afternoon of March 22. In addition to paying her accrued vacation time, the IBT offered Ms. Sherman a severance package in exchange for her signing an agreement and general release in favor of the IBT and relinquishing any claims relating to her employment or termination. The IBT did not provide Ms. Sherman with a reason for the termination. She claims that Norma Bartus, someone working with the transition team, told her that “Hoffa wants to surround himself with people he could trust and you had testified and all that [and] he felt you couldn’t be trusted, he considered you being in with the Carey people.”
Theresa M. Sherman
May 20, 1999
Page 1
Article VIII, § 11(b) of the Rules provides that “[a]ll Union officers and employees, if members, retain the right to participate in campaign activities . . .” (emphasis added). Article VIII § 11(f) of the Rules prohibits retaliation against any “Union member, officer or employee for exercising any right guaranteed by . . . the Rules.” The Election Officer will thus find a violation of the Rules where an employment decision is based upon an employee-member’s having engaged in election related conduct. Eckstein, PR-135-IBT-SCE (MGC) (August 14, 1998) at 31-32, aff’d In re Sever, 98-Elec. App.-369 (KC) (September 8, 1998). The Election Officer only has jurisdiction over claims of retaliation in employment where the employee is an IBT member and the adverse action was taken because of the employee’s exercise of a right under the Rules.
Ms. Sherman is not an IBT member and has no cognizable rights under the Rules to engage in election-related conduct free of retaliation. Accordingly, Ms. Sherman lacks standing to protest her termination in this forum.
Even if she were a covered member, there are additional reasons that Ms. Sherman’s protest would fail. First, she has not alleged that she was terminated on account of any conduct connected to the election. Indeed, she states that she has not had any involvement whatsoever in elections or IBT politics. Second, her tenure as Executive Secretary to the General President is subject to the discretion of the General President. IBT Constitution, Art. IX, § 8 (“The General President . . .shall have the power to employ or retain clerical . . . assistance for [his] . . . department[] as [he] may from time to time determine”). It is not a violation “‘to remove a member from an appointed position if there was a basis for doing so independent of the election process.’” In re Eckstein, PR-135-IBT-SCE at 36-37 (quoting Wsol, P-095-IBT-CHI (September 20, 1995), aff’d 95-Elec. App.-17 (KC) (October 10, 1995)). Thus, even if Ms. Sherman were a member and her involvement in political activity had affected the decision to terminate her, Mr. Hoffa could still exercise his discretion under the IBT Constitution and determine that she was no longer suitable to serve as Executive Secretary to the General President.
For the foregoing reasons, Ms. Sherman’s protest is hereby 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 100
New York, NY 10022
Fax: (212) 751-4864
Theresa M. Sherman
May 20, 1999
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.
Sincerely,
Michael G. Cherkasky
Election Officer
cc: Kenneth Conboy, Election Appeals Master